New Century Financial Services v. Oughla Msw Capital, LLC v. Zaidi

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-6078-11T4
A-6370-11T1

NEW CENTURY FINANCIAL
APPROVED FOR PUBLICATION
SERVICES, INC.,
September 2, 2014
Plaintiff-Respondent,
APPELLATE DIVISION
v.

AHLAM OUGHLA,

Defendant-Appellant.
____________________________

MSW CAPITAL, LLC,

Plaintiff-Respondent,

v.

AZEEM H. ZAIDI,

Defendant-Appellant.
_______________________________________

Argued May 22, 2013 – Decided March 5, 2014

Before Judges Grall, Simonelli and Accurso.

On appeal from Superior Court of New Jersey,
Law Division, Special Civil Part, Hudson
County, Docket No. DC-4244-12 (A-6078-11),
and Monmouth County, Docket No. DC-4774-12
(A-6370-11).

Philip D. Stern argued the cause for
appellant (both appeals) (Philip D. Stern &
Associates, LLC, attorneys; Mr. Stern, on
the briefs).
 Lawrence J. McDermott, Jr., argued the cause
for respondent (both appeals) (Pressler and
Pressler, L.L.P., attorneys; Mr. McDermott
and Steven A. Lang, on the briefs).

John Ukegbu argued the cause for amicus
curiae Northeast New Jersey Legal Services,
Inc. (A-6078-11) (Northeast New Jersey Legal
Services, attorneys; Mr. Ukegbu, on the
brief).

The opinion of the court was delivered by

ACCURSO, J.A.D.

In these two appeals, calendared back-to-back and

consolidated here, we consider the proofs necessary for

plaintiffs to prevail on summary judgment in an action to

collect an assigned debt on a closed and charged-off credit card

account. Plaintiffs are debt buyers. Debt buyers purchase

charged-off credit card debts from the card issuers or other

debt buyers and attempt to collect the debts, that is, the

amount due the card issuer when it charged-off the account, or

re-sell them to other debt buyers.1 Plaintiffs obtained summary

judgments against defendants on charged-off credit card debts

which plaintiffs claim to have purchased from sellers who,

ultimately, albeit indirectly, derived their ownership from the

1
See Federal Trade Commission, The Structure and Practices
of the Debt Buying Industry 11 (2013), available at
http://ftc.gov/sites/default/files/documents/reports/structure-
and-practices-debt-buying-industry/debtbuyingreport.pdf
[hereinafter "Debt Buying Report"].

2 A-6078-11T4
banks that issued the credit cards to defendants. Defendants

contend that the summary judgments were improper because

plaintiffs did not submit sufficient proof of their ownership of

the debts and did not offer admissible evidence of the amounts

allegedly owed.

Plaintiffs suing on assigned, charged-off credit card debts

must prove two things: ownership of the defendant's charged-off

debt and the amount due the card issuer when it charged off the

account. In considering whether plaintiffs established prima

facie proof of their claims, we hold that: lack of notice to

the debtor of the sale of the debt does not affect the validity

of the assignment; the assignment need not specifically

reference defendant's name or account number and instead may

refer to an electronic data file containing that information; a

plaintiff need not procure an affidavit from each transferor in

its chain of assignments and may instead establish prima facie

proof of ownership on the basis of business records documenting

its ownership; and that an electronic copy of the periodic

billing statement for the last billing cycle is prima facie

proof of the amount due on the account at charge off. Applying

those standards to the facts presented on the motions, we affirm

one judgment and reverse the other.

3 A-6078-11T4
The Summary Judgment Motions

Ahlam Oughla

Plaintiff New Century Financial Services, Inc. (New

Century) sued defendant Ahlam Oughla alleging that it was the

owner of Oughla's Credit One Bank, N.A., account on which

$723.82 was due at charge off. Oughla, representing herself,

answered stating "[p]laintiff provided no documentation to

support the charges alleged in the complaint, therefore

defendant denies all allegations." Although each side

propounded limited interrogatories as allowed in actions

cognizable but not pending in the Small Claims Section,

R. 6:4-3(f), neither party provided responsive answers.

New Century moved for summary judgment. In its statement

of material facts, New Century stated that its predecessor in

interest, Credit One, extended credit to Oughla on a specific

account; that as set forth in its supporting certification, New

Century had purchased that account; that the "Electronically

Transmitted Information from Seller," showed that Oughla opened

the account on October 25, 2007; made her last payment on March

2, 2008; and that Credit One charged off the account on October

5, 2008 with a balance due of $723.82, which constituted the

principal balance New Century demanded. New Century also sought

interest of $1.58 calculated at the rate specified in Rule 4:42-

4 A-6078-11T4
11(a)(ii), not at the rate charged by Credit One when the

account was active.

New Century attached what it claimed to be the bill of sale

and assignment by which it acquired Oughla's debt as well as

documents relating to several prior transfers of the account.

Specifically, New Century attached four executed assignment

documents memorializing the sale and assignment of certain

charged-off credit card account receivables, purportedly

described on computer files transferred therewith: from MHC

Receivables, L.L.C. (MHC Receivables) to Sherman Originator,

L.L.C. (Sherman Originator); from Sherman Originator to LVNV

Funding, L.L.C. (LVNV Funding); from LVNV Funding to Sherman

Acquisition, L.L.C. (Sherman Acquisition); and from Sherman

Acquisition to New Century. Only one of the assignments

referenced a portfolio number and none referenced Oughla's

account, or indeed, any individual account.

New Century also attached an electronic copy of the final

periodic account statement for "VISA Account [XXXX]" from Credit

One to Oughla with the same address she noted on her answer,

advising that the account was closed and scheduled to be charged

off with a balance of $723.82.

Oughla filed a response to the motion and consented to

disposition on the papers. She did not dispute any of the

5 A-6078-11T4
particular facts New Century asserted, but contended that there

was no admissible evidence of the formation of a contract

between her and Credit One, or of the breach of any such

contract, and no reference to her name or account number in any

of the assignments. On that evidence, the judge granted New

Century summary judgment in the sum of $725.40 plus costs

without a statement of reasons.

Oughla retained counsel who filed a motion for

reconsideration. Counsel argued that New Century did not

establish its ownership of the debt or provide a proper

foundation for the final periodic account statement.

New Century responded with additional proofs of its

ownership of the debt. Its "business development manager,"

Marko Galic, certified that he participated in the transaction

in which New Century purchased Oughla's debt and thus had

personal knowledge of the records New Century obtained in that

sale, including the assignments, a copy of the electronically-

transmitted spreadsheet New Century acquired, redacted to show

only the information relating to Oughla's account, and the final

periodic statement Credit One issued to Oughla.

In addition, New Century provided evidence of the transfers

that preceded its acquisition, the first being from Credit One

to MHC Receivables. John Mazzoli submitted an affidavit stating

6 A-6078-11T4
that he is an authorized representative for MHC Receivables,

having personal knowledge of "the method and manner" by which

MHC "originates, services, owns and manages VISA and MasterCard

accounts." Mazzoli explained that MHC Receivables "purchases

and holds VISA and MasterCard accounts" originated by Credit

One, which Credit One thereafter continues to service on behalf

of MHC Receivables, the legal owner. According to Mazzoli,

"[t]he Agreements that transfer the accounts between Credit One

and MHC are self-executing, allow for the accounts to be

transferred immediately after origination, and comply with all

state and federal regulations," and that "[c]ardholders receive

appropriate notice of these events in accordance with all state

and federal laws." Mazzoli averred that "[t]he transfer between

MHC and any subsequent buyer [is] evidenced by a Purchase and

Sale Agreement and corresponding Bill of Sale."2

The judge denied the motion for reconsideration and

reaffirmed the entry of summary judgment. She was satisfied

2
New Century also presented a certification from its counsel
Steven A. Lang, Esq., who attached credit reports from 2008 and
2009 for Oughla that counsel's firm "obtained in another
matter." We do not rely on these reports because they are
plainly inadmissible hearsay. See, e.g., Cruz v. MRC
Receivables Corp. 563 F. Supp. 2d 1092, 1095 (N.D. Cal. 2008)
(credit reports offered to prove the accounts and amounts
therein are inadmissible hearsay); Konop v. Rosen, 425 N.J.
Super. 391, 402 (App. Div. 2012) (noting that hearsay within
hearsay requires a separate basis for admission).

7 A-6078-11T4
that New Century had established a prima facie case that it was

the owner of the account and that Oughla was in default in the

sum of $723.82 plus interest of $1.58, for a total due of

$725.40. The judge found that Oughla's only defense to the

motion was that she "was not satisfied" with New Century's

proofs, which the judge concluded was not sufficient to defeat

summary judgment.

Azeem H. Zaidi

Plaintiff MSW Capital, L.L.C. (MSW Capital) sued defendant

Azeem H. Zaidi alleging that it was the owner of Zaidi's "CHASE-

WAMU" account, on which $12,487.36 was due at charge off.

Zaidi, representing himself, filed an answer leaving plaintiff

to its proofs.

MSW Capital served Zaidi with interrogatories seeking the

factual basis for any defense Zaidi claimed, to which Zaidi

declined to provide responsive answers. MSW Capital also served

Zaidi with requests for admissions asking whether he admitted

applying for credit privileges with CHASE-WAMU; whether he made

purchases or received cash advances using the account; and

whether he received monthly statements. Zaidi responded without

admitting or denying any of the requested admissions.

MSW Capital moved for summary judgment. In its statement

of material facts, MSW Capital stated that its predecessor in

8 A-6078-11T4
interest, CHASE-WAMU, extended credit to Zaidi, and that as set

forth in the certification submitted in support of the motion,

MSW Capital was the current owner of that account on which

$12,487.36 was due at charge-off. MSW Capital attached copies

of eighteen monthly billing statements for Zaidi's CHASE-WAMU

account from August 2009 through January 2011, each addressed to

Zaidi at the address indicated on Zaidi's answer.

MSW Capital supported the motion with a certification of

its managing director, Lawrence A. Whipple, Jr., who claimed

both personal knowledge of MSW Capital's "books and business"

and authority to make the certification on its behalf. Whipple

certified that MSW Capital "is the owner by purchase of

[Zaidi's] defaulted CHASE-WAMU Account" on which there is due

the sum of $12,487.36.3

Zaidi, through counsel, opposed MSW Capital's motion and

cross-moved for summary judgment. He denied MSW Capital's

3
Whipple further certified that MSW Capital's records are
maintained electronically, and he attached a "Computer Generated
Report of Financial Information From 1/31/11 to 04/19/12,"
created by MSW Capital for Zaidi's account. We do not rely upon
this report, which was apparently intended to conform to the
requirements of Rule 6:6-3(a), because it cannot qualify as a
business record under N.J.R.E. 803(c)(6). The case caption and
docket number on the document make clear it was prepared in
anticipation of litigation and thus not kept in the normal
course of business. See State v. Berezansky, 386 N.J. Super.
84, 94 (App. Div. 2006), certif. granted, 191 N.J. 317 (2007),
appeal dismissed, 196 N.J. 82 (2008).

9 A-6078-11T4
claims based on its "failure to provide proof that it owns the

alleged account and . . . that I am indebted to [MSW Capital] in

any amount." Zaidi certified that prior to his receipt of the

complaint he had never heard of MSW Capital and never received

notice "that an account between 'CHASE-WAMU' and me had been

transferred, sold or assigned."

MSW Capital responded with a supplemental certification

from Whipple, as well as new certifications from its attorneys.

Whipple explained, as he had not in his original certification,

that his job responsibilities required that he be familiar with

MSW Capital's "records and the manner in which those records are

recorded and maintained," and that he personally participated in

MSW Capital's acquisition of Zaidi's charged-off "CHASE-WAMU

account number [XXXX]." According to Whipple, MSW Capital

acquired Zaidi's charged-off CHASE-WAMU account on July 18, 2011

by bill of sale and assignment from Main Street Acquisition

Corp., (Main Street) a true copy of which he attached. The bill

of sale and assignment recites that:

For value received and subject to the
terms and conditions of the [Purchase and
Sale Agreement, dated as of April 15, 2011],
the Seller [Main Street] hereby transfers,
sells, assigns, conveys, grants, bargains,
sets over and delivers to the Purchaser [MSW
Capital, L.L.C.], and to the Purchaser's
successors and assigns, all of the Seller's
rights, title and interest in and to the
Purchased Accounts and any claims arising

10 A-6078-11T4
 out of the Purchased Accounts described in
the Agreement and contained in the Sale File
provided to the Purchaser on July 18, 2011.

This Assignment is executed without
recourse and without representations or
warranties including, without limitation,
warranties as to collectability, except as
otherwise provided in the Agreement.

Whipple certified that Main Street also provided MSW Capital

with a copy of the assignment by which Main Street acquired

Zaidi's charged-off account from Chase, a true copy of which he

attached.

Whipple attested to the electronic information Main Street

provided MSW Capital regarding Zaidi's charged-off CHASE-WAMU

account, including the account number, that the account was

opened on August 16, 2004, that the last payment on the account

had been made on June 7, 2010 in the amount of $300.00, that

Chase Bank charged off the account on January 31, 2011, that the

balance due at charge-off was $12,487.36, Zaidi's address in

Morganville, New Jersey, as well as Zaidi's date of birth and

social security number which Whipple did not list but

represented would be made available to the court at its request.

Finally, Whipple identified, and attached as true copies, the

eighteen periodic statements he obtained from Main Street for

Zaidi's charged-off account, each of which stated "This

Statement is a Facsimile – Not an original."

11 A-6078-11T4
 MSW Capital's counsel, Steven A. Lang, submitted a

certification countering Zaidi's sworn statement that he had

never heard of MSW Capital before being served with the

complaint. Lang attached a copy of a demand letter his office

had sent to Zaidi before the complaint was filed, informing him

that his CHASE-WAMU account had been purchased by MSW Capital

and placed with the firm for collection. Lang also explained

that in September 2008, the Federal Deposit Insurance

Corporation (FDIC) seized Washington Mutual Bank (WAMU),

thereafter placing the bank into receivership and eventually

selling "substantially all" of its assets to JPMorgan Chase &

Co., the parent of Chase Bank USA, N.A., the firm's credit card

issuing bank in accordance with JPMorgan Chase & Co.'s public

filings with the Securities and Exchange Commission. Lang

attached copies of those filings to his certification.

The trial judge reviewed all of the evidence submitted by

MSW Capital and the objections to that evidence from Zaidi, and

determined that the billing statements satisfied the

requirements of Rule 6:6-3(a), and LVNV Funding, L.L.C. v.

Colvell, 421 N.J. Super. 1 (App. Div. 2011), and that Whipple's

certification constituted sufficient proof to establish that

Zaidi's charged-off credit card had been transferred to MSW

Capital. The judge noted that Zaidi had not offered anything to

12 A-6078-11T4
dispute his responsibility for the account, the accuracy of the

amount due at charge-off, or his receipt of the billing

statements. Finding no material fact in dispute and that MSW

Capital had proved its claim, the judge entered summary judgment

for MSW Capital in the amount of $12,487.36 plus costs.

Both defendants filed timely notices of appeal. This court

subsequently granted the motion of Northeast New Jersey Legal

Services, Inc. to appear as amicus curiae and to argue in

support of Oughla's appeal.

Brief Overview of the Debt Buying Industry

Because defendants and amicus rely on reports of the

Federal Trade Commission (FTC), a federal agency responsible for

enforcing the Fair Debt Collection Practices Act, 15 U.S.C.A.

§ 1692, issued after the FTC assessed the effect of debt buying

on the collection of consumer debt and its effect on consumers,

we begin with a brief background of the debt buying industry.

The FTC undertook its studies in response to the rapid

increase in debt buying over the last two decades. Although

acknowledging that debt buying reduces the losses creditors

incur in providing credit, thereby helping to keep the price of

credit low and ensuring its wide availability, the FTC was

concerned that the re-selling of debts could lead to debt buyers

having insufficient or inaccurate information about the debts

13 A-6078-11T4
they are trying to collect, resulting in debt buyers attempting

to collect from the wrong debtor or more than the debtor owes.

Federal Trade Commission, Debt Buying Report, supra, at 11, 29-

30, Federal Trade Commission, Repairing a Broken System:

Protecting Consumers in Debt Collection Litigation and

Arbitration i-ii (2010) available at

http://ftc.gov/os/2010/07/debtcollectionreport.pdf, [hereinafter

"Debt Collection Report"]; Federal Trade Commission, Collecting

Consumer Debts: The Challenges of Change, A Workshop Report

1 (2009) available at

http://ftc.gov/sites/default/files/documents/reports/collecting-

consumer-debts-challenges-change-federal-trade-commission-

workshop-report/dcwr.pdf [hereinafter "Debt Collection Workshop

Report"].

The debt buying business apparently traces its origin to

the savings and loan crisis of the late 1980s when the

Resolution Trust Corporation auctioned off billions in unpaid

loans owed to failed thrifts. Debt Buying Report, supra, at 12.

The success of such sales led other owners of delinquent debt,

most notably the banks constituting the largest credit card

issuers, to eventually follow suit. Id. at 12-13.

Federal regulations require banks issuing credit cards to

charge off, that is declare uncollectible, credit card debts by

14 A-6078-11T4
the end of the month in which they become one hundred and eighty

days past due. Final Notice of Uniform Retail Credit

Classification and Account Management Policy, 65 Fed. Reg. 36903

(June 12, 2000). Although banks are prohibited from counting

charged-off debts toward their capital requirements, the debts

remain assets which the banks can continue to try to collect or

sell for cash. Debt Buying Report, supra, at 13 n.58. The

Government Accountability Office reported in a 2009 study that

five of the six largest credit card issuers sold at least some

of their charged-off debt to debt buyers.4

The FTC found that credit card issuers typically bundle

thousands of charged-off accounts into portfolios sharing common

features, such as the amount of time that has passed since a

payment was made on the account.5 Debt Buying Report, supra, at

17. Debt buyers purchasing the portfolios from the credit card

issuers sometimes resell the original portfolios or repackage

the debts into new portfolios. Id. at 19.

4
U.S. Gov't Accountability Office, GAO-09-748, Credit Cards:
Fair Debt Collection Practice Act Could Better Reflect the
Evolving Debt Collection Marketplace and Use of Technology 25
(2009), available at http://www.gao.gov/assets/300/295588.pdf
[hereinafter "GAO Report"].
5
Zaidi's account appears to have been included in a portfolio of
8,842 charged-off accounts that Chase assigned to Main Street.

15 A-6078-11T4
 All of the information the debt buyers receive about the

charged-off accounts within a purchased portfolio is transmitted

electronically. Debt collection is no longer based on paper

transactions. The FTC notes that technological innovations over

the past thirty years, such as document imaging and electronic

database management systems, have dramatically enhanced the

ability of creditors and debt collectors to obtain, store, and

transfer data about account holders and their debts. Debt

Collection Workshop Report, supra, at 17.

Upon purchase of a portfolio, the debt buyer receives a

"data file," typically one or more electronic spreadsheets

containing information such as the name, street address, home

telephone number, date of birth, and social security number for

each debtor, along with the credit card account number, the

amount due at charge-off, the date the debtor opened the

account, the date of last payment, and the date of charge-off.

Debt Buying Report, supra, at 20, 34-35. Both plaintiffs in

these cases represented that the information they acquired on

defendants' charged-off debts was through the transfer of

electronic data files. In addition to the data file, buyers of

charged-off accounts also sometimes acquire electronic

documentation or "media," typically account statements, at the

time of sale or the right to request such from the seller for a

16 A-6078-11T4
limited period of time, and often for a fee.6 Id. at 26-28, 39-

40.

The debts within these portfolios are sometimes sold

multiple times pursuant to separate purchase and sale agreements

in which sellers generally disclaim all representations and

warranties regarding the accuracy of the information about the

individual debts. Id. at 25. Defendants and amicus contend

that because plaintiffs are suing on purchased debt of which

they have no personal knowledge, the absence of a warranty

leaves plaintiffs unable to prove that they have sued the right

defendant for the correct amount. The FTC acknowledges,

however, that its study did not permit any conclusions as to the

prevalence of errors or inaccuracies in the information about

the debts transferred in these portfolios.7 Ibid.

Against this backdrop, we turn to consider the matters

before us.

6
Significantly, the FTC found that original sellers typically
had no obligation to provide copies of documents to purchasers
of resold debt; instead, those purchasers had to channel their
requests upstream to the original purchaser for transmission to
the issuer. Debt Buying Report, supra, at 27-28. This was the
manner in which MSW acquired Zaidi's Chase account statements.
7
The FTC speculates that one reason debt sellers may not warrant
the account information on the debts they sell is the cost to a
seller in assessing a warranty claim, that is in trying to
determine if the information it supplied to a buyer about a debt
was inaccurate or whether the debt simply proved uncollectible
for the buyer. Debt Buying Report, supra, at 25, n.108.

17 A-6078-11T4
Standing

We first dispose of defendants' arguments that plaintiffs

failed to establish standing in the trial court. Defendants

assert that "the chain of assignment must be addressed before

deciding other substantive issues" because "[w]hen there is

insufficient proof of assignment, the action is not

justiciable."

We need not engage in an extended discussion on this point.

We agree with defendants that plaintiffs must prove that they

own the charged-off credit card debts on which they sue, whether

one characterizes it as standing to sue or an essential element

of proof on an assigned claim. See Sullivan v. Visconti, 68

N.J.L. 543, 550 (Sup. Ct. 1902), aff'd, 69 N.J.L. 452 (E. & A.

1903); Triffin v. Somerset Valley Bank, 343 N.J. Super. 73, 79-

82 (App. Div. 2001); Wells Fargo Bank, N.A. v. Ford, 418 N.J.

Super. 592, 599-600 (App. Div. 2011). We disagree that, in

these Special Civil Part actions, the parties must first

litigate ownership of the debt before any other matter can be

addressed. Such matters are left to the sound discretion of the

trial judge to be exercised in light of any motions filed by the

parties.

As we noted at the outset of this opinion, plaintiffs suing

on assigned credit card debts must prove that they own the debt

18 A-6078-11T4
and the amount due. The proofs on these issues are generally

straightforward and proceed in tandem. Requiring them to be

addressed separately would seem to confound the purposes of the

Special Civil Part Rules, which are designed to control costs

and promote the expeditious resolution of claims under $15,000.

Lettenmaier v. Lube Connection, Inc., 162 N.J. 134, 143-44

(1999).

The issue is only important here because defendants have

taken the position that plaintiffs must prove they own the debt

before defendants can be required to participate in discovery.

Both defendants refused to answer basic discovery on the basis

that plaintiffs had not proved that they owned the debts sued

upon. We think it obvious that defendants have the same

obligations as all other litigants in our courts to answer

discovery fully and forthrightly. Dewalt v. Dow Chem. Co., 237

N.J. Super. 54, 60 (App. Div. 1989).

Although information as to ownership of the debt would

almost certainly be confined to plaintiffs, defendants likely

possess relevant information about the credit card account. Our

rules allow litigants in civil litigation to prove claims and

defenses through discovery and admissions obtained from adverse

parties. See Seiden v. Allen, 135 N.J. Super. 253, 255-56 (Ch.

Div. 1975). Defendants cannot shield themselves from legitimate

19 A-6078-11T4
discovery in these collection matters by asserting plaintiffs'

lack of standing.

Proof of Assignments

The parties and amicus agree that the assigned credit card

debts on which plaintiffs sue constitute choses in action

arising on contract, which are assignable pursuant to N.J.S.A.

2A:25-1. Our law does not dictate any precise formula for such

assignments. Sullivan, supra, 68 N.J.L. at 550. All that is

required is evidence of the intent to transfer one's rights and

a description of the intangible right being assigned sufficient

to make it readily identifiable. K. Woodmere Assocs., L.P. v.

Menk Corp., 316 N.J. Super. 306, 314 (App. Div. 1998) (citing

3 Williston on Contracts § 404 (Jaeger ed. 1957); Transcon Lines

v. Lipo Chem., Inc., 193 N.J. Super. 456 (Cty. Dist. Ct. 1983)).

Although an assignee will ordinarily notify a debtor

promptly of the assignment, as the debtor is discharged to the

extent of his payments to the assignor prior to notice, the lack

of notice to the debtor does not affect the validity of the

assignment.8 Moorestown Trust Co. v. Buzby, 109 N.J. Eq. 409,

8
We do not view Tirgan v. Mega Life & Health Ins., 304 N.J.
Super. 385 (Law Div. 1997), on which defendants rely, to be to
the contrary. Notice was not at issue in that case, which
involved a patient's assignment of his rights under an insurance
contract to his physician. Id. at 391. The Law Division's
statement that "[t]o be effective, . . . the assignment must be
(continued)

20 A-6078-11T4
411 (Ch. 1932) (creditors may dispose of a debt as they choose

including by assigning it to another, notice of any assignment

to the debtor "adds nothing to the right or title transferred").

Notice simply charges the debtor with the duty to pay the

assignee. Russel v. Fred G. Pohl Co., 7 N.J. 32, 40 (1951);

Spilka v. S. Am. Managers, Inc., 54 N.J. 452, 462 (1969);

N.J.S.A. 12A:9-406(a).

Accordingly, we reject defendants' arguments that lack of

notice of the assignments to the account holders is fatal to

plaintiffs' claims. Because it does not involve a dispute over

a material fact, we likewise reject Zaidi's argument that the

factual dispute about his notice of the assignment precluded

entry of summary judgment against him.

Plaintiffs insist that because our law has not historically

required documentary evidence to prove ownership, ownership of

the assigned claims may be proved by testimony alone. That

assertion seems to us beside the point, as plaintiffs in these

cases moved for summary judgments relying on written

assignments.9 Accordingly, our review is of the certifications

submitted on the motions in support of their claims. See Ford,

(continued)
noticed to the obligor," plainly refers only to the obligor's
duty to pay the assignee upon proper notice. Id. at 390.
9
The exception in Oughla's case regarding the first link in MSW
Capital's chain of ownership is discussed infra.

21 A-6078-11T4
supra, 418 N.J. Super. at 599-600. We review the grant of

summary judgment using the same standard as the motion judge.

Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010).

Thus, we must determine "whether the competent evidential

materials presented, when viewed in the light most favorable to

the non-moving party, are sufficient to permit a rational

factfinder to resolve the alleged disputed issue in favor of the

non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142

N.J. 520, 540 (1995).

Where a motion for summary judgment is based on facts

either not of record or not judicially noticeable, Rule 1:6-6

allows the court to "hear it on affidavits made on personal

knowledge, setting forth only facts which are admissible in

evidence to which the affiant is competent to testify and which

may have annexed thereto certified copies of all papers or parts

thereof referred to therein." Hearsay may only be considered if

admissible pursuant to an exception to the hearsay rule. Jeter

v. Stevenson, 284 N.J. Super. 229, 233-34 (App. Div. 1995). In

evaluating a summary judgment record involving a challenge to

the competency of affidavits on which the trial court relied, we

review the evidentiary question for abuse of discretion and the

court's legal determination de novo. Estate of Hanges v. Metro.

Prop. & Cas. Ins. Co., 202 N.J. 369, 383-84 (2010).

22 A-6078-11T4
 The central question presented with regard to the

assignments is whether plaintiffs have submitted competent

evidence demonstrating "the full chain of the assignment of the

claim[s]." R. 6:6-3(a); Colvell, supra, 421 N.J. Super. at 6

(noting agreement that Rule 6:6-3(a) provides a guide to the

proofs necessary for summary judgment in credit card collection

cases). We reviewed the requirements for affidavits purporting

to establish a party's ownership of an assigned mortgage debt in

Ford, supra, 418 N.J. Super. at 597-98. Those principles apply

equally here. An affiant must aver that the facts presented are

on personal knowledge, identify the source of such knowledge,

and must properly authenticate any certified copies of documents

referred to therein and attached to the affidavit or

certification. Id. at 599-600. We are satisfied that MSW's

proofs on its motion were sufficient to establish its ownership

of Zaidi's debt. New Century's proofs, however, could not

support summary judgment in Oughla's case.

In Oughla's case, New Century submitted two certifications

from its business developer manager, Marko Galic. Galic

certified that he was familiar "with the business and records"

of New Century, was authorized to make the certifications on its

behalf and did so of his own personal knowledge. Galic

explained that he had personally participated in the transaction

23 A-6078-11T4
in which New Century purchased Oughla's account from Sherman

Acquisition and he attached "true copies" of the bill of sale

and assignment and the information electronically provided to

New Century regarding Oughla's account at the time of sale.

The attached bill of sale and assignment identified Sherman

Acquisition as the assignor and New Century as the assignee and

states that the assignor conveys all of its interest in certain

charged-off receivables described in an attached appendix and

referred to as "Charged-off Accounts" in a purchase and sale

agreement between assignor and assignee of the same date. The

document is signed on behalf of Sherman Acquisition by John

Mazzoli, Director, and witnessed by another officer. Also

attached to Galic's certification are five pages of a

spreadsheet with information relating to Oughla's account with

Credit One and a periodic statement from Credit One to Oughla

noting that the account is closed and scheduled to be charged

off.

Finally, Galic attaches true copies of the remaining three

assignments transferring Oughla's Credit One account from MHC

Receivables to Sherman Originator, from Sherman Originator to

LVNV Funding, and from LVNV Funding to Sherman Acquisition, from

whence it was transferred to New Century.

24 A-6078-11T4
 The Galic certifications plainly do not suffer from the

inadequacies of the certifications presented in Ford. Galic

identifies his position with New Century and describes the basis

of his knowledge; he personally participated in the transaction

in which New Century acquired Oughla's Credit One account.

Galic certified that the attached assignments were true copies

of the ones provided to New Century by its assignor Sherman

Acquisition. Nothing further was required to authenticate them

under N.J.R.E. 901. See Celino v. Gen. Accident Ins., 211 N.J.

Super. 538, 544 (App. Div. 1986). Although defendants assert

that the assignments are not admissible because they refer to

agreements and appendices not attached, they cite no case for

that proposition and fail to explain how such documents are

relevant to the issues in dispute.

Defendants note that none of the assignments refers

specifically to Oughla's Credit One account. The point is

undisputed. Galic certifies, however, that Oughla's account was

among the charged-off accounts included in the assignments and

acquired by New Century in the transaction, as evidenced by the

electronic spreadsheet information transferred to New Century,

which he attached to his certification.

As an assignment needs no particular form and requires only

so much of a description of the intangible assigned to make it

25 A-6078-11T4
readily identifiable, K. Woodmere Assocs., supra, 316 N.J.

Super. at 314, we agree with the trial judge that the

assignments need not specify each account transferred to

effectively transfer accounts included in an accompanying

electronic file. The key is the intent of the assignor to

transfer specific accounts. Ibid. That intent is gleaned from

the documents themselves and surrounding circumstances. Id. at

315-16; see also Sullivan, supra, 68 N.J.L. at 546-47

(acknowledging appropriate use of parol evidence to confirm

identity of the thing assigned). Accordingly, we conclude that

New Century's certifications properly authenticate the

assignment documents and electronically-transmitted information

evincing a proper chain of assignments of Oughla's Credit One

account from MHC Receivables through to New Century.

There is, however, no document evidencing the first link in

New Century's assignment chain, the transfer of Oughla's account

from the card issuer, Credit One, to MHC Receivables. New

Century asserts that "[t]here are no documents from Credit One

in the chain because the account was not owned by Credit One."

New Century further explains with reference to Mazzoli's

certification, that the "accounts are originated by Credit One

and then sold, while live, to MHC Receivables, Inc.[,] Credit

One Bank acted thereafter only as the account servicer."

26 A-6078-11T4
 We cannot agree that because the credit card accounts are

originated by Credit One and assigned to MHC Receivables while

the accounts are still active, that no proof of assignment is

necessary.10 New Century's assertion that Credit One did not own

the account appears at direct odds with Mazzoli's certification

that MHC Receivables "purchases and holds" Visa and MasterCard

accounts "originated by Credit One."

Further, we note that Mazzoli's affidavit discussing MHC

Receivables is markedly less clear than the Galic

certifications. Instead of explaining his position with MHC

Receivables and describing the source of his knowledge, Mazzoli

says only that as "authorized representative" for that entity,

he has "personal knowledge" of how it "originates, services,

owns and manages Visa and MasterCard accounts." The affidavit

neither reveals his position, if any, with MHC Receivables, nor

the source of his knowledge of this aspect of its operations.

See Ford, supra, 418 N.J. Super. at 599-600. The Mazzoli

affidavit on behalf of MHC Receivables raises more questions

than it answers and thus does not provide sufficient proof of

10
This situation is different from a scenario in which a
successor bank has acquired active credit card accounts through
acquisition of another bank. See Garden State Bank v. Graef,
341 N.J. Super. 241, 245-46 (App. Div. 2001), and our discussion
of this point, infra at 33.

27 A-6078-11T4
Credit One's transfer of Oughla's account to MHC Receivables,

the first link in New Century's chain of assignments. Ibid.

Accordingly, the summary judgment against Oughla must be

reversed because New Century did not establish the full chain of

ownership of its claim. While Mazzoli's affidavit is not

sufficient to establish the transfer of Oughla's charged-off

Credit One account to MHC Receivables, we note that he asserts

that Credit One cardholders are noticed of the transfer of their

accounts, thereby suggesting that proof of MHC Receivables'

ownership of Oughla's account may be established in ways other

than production of an assignment. We express no opinion on the

method by which New Century may prove MHC Receivables' ownership

of Oughla's account on remand. It suffices to say that it must

be established by admissible evidence presented by affidavit of

a witness competent to testify. Ford, supra, 418 N.J. Super. at

599-600.

We also acknowledge that the Oughla matter was within the

cognizance of the Small Claims Section of the Special Civil Part

where the rules of evidence may be relaxed. R. 6:1-2(a)2, 6:11;

N.J.R.E. 101(a)(2)(A), see also Penbara v. Straczynski, 347 N.J.

Super. 155, 158 n.1, 162-63 (App. Div. 2002); Blaisdell Lumber

Co. v. Horton, 242 N.J. Super. 98, 101 (App. Div. 1990). While

we are of the view that critical facts must be proved and not

28 A-6078-11T4
merely assumed, notwithstanding the lack of formality in the

Small Claims Section, Triffin v. Quality Urban Hous. Partners,

352 N.J. Super. 538, 543 (App. Div. 2002), we express no view of

the form those proofs may take and whether relaxation of the

rules of evidence might be appropriate under the circumstances.11

In Zaidi's case, MSW Capital proved its chain of

assignments of Zaidi's charged-off account through the Whipple

and Lang certifications. Whipple's certifications suffice to

establish his knowledge of MSW's records and authenticate the

assignment from Main Street to MSW Capital transferring Zaidi's

charged-off account. See Ford, supra, 418 N.J. Super at 599-

600. Whipple certifies that he is the managing director of MSW

Capital and that his job responsibilities require his

familiarity with "MSW's records and the manner in which those

records are recorded and maintained." Further, Whipple

certifies that he personally participated in MSW Capital's

acquisition of Zaidi's charged-off account which MSW Capital

acquired by way of bill of sale and assignment, a true copy of

which he attached to his certification. The bill of sale and

assignment provides that Main Street assigns to MSW Capital all

11
We reject defendants' contention that New Century may not
avail itself of the relaxation rule because it is intended to
assist self-represented parties. By its terms, the rule applies
to all parties in matters within the cognizance of the Small
Claims Section. See N.J.R.E. 101(a)(2)(A).

29 A-6078-11T4
of Main Street's rights to the "purchased accounts" described in

a certain purchase and sale agreement and "contained in the sale

file" provided to MSW Capital.

Whipple also attached a true copy of the bill of sale MSW

Capital was provided by Main Street evidencing Main Street's

assignment of the account from Chase. That document references

the transfer of 8,842 accounts from Chase Bank to Main Street

"described in the Final Data File, entitled (Account's Primary

File Name) attached hereto and made part hereof for all

purposes" pursuant to the credit card account purchase agreement

between Chase Bank and Main Street.

In addition to raising objections to the failure to attach

the referenced purchase agreements to the assignments and the

lack of any specific mention of Zaidi's account which we have

already rejected, Zaidi maintains that MSW Capital had to

produce an affidavit from each of its predecessors

authenticating the assignment each provided to its transferee

for the entire assignment chain. We disagree.

We reject the claim that a separate affidavit is required

from each transferor authenticating each assignment in the

chain. Third-party documents evidencing ownership, such as

those represented by these assignments, are examples of business

records of one business transferred on sale and incorporated in

30 A-6078-11T4
the purchaser's records to document proof of ownership of the

thing transferred. See, e.g., Stott v. Greengos, 95 N.J. Super.

96, 99-100 (App. Div. 1967) (stock sale confirmation sheets);

State v. Mazowski, 337 N.J. Super. 275, 292 (App. Div. 2001)

(pawnshop receipts); K & K Enters. Inc. v. Stemcor USA Inc., 954

N.Y.S.2d 512, 513 (App. Div. 2012) (bills of lading). So long

as the proponent of the documents can satisfactorily attest to

the circumstances under which it acquired the documents on which

it relies, the documents should be admissible as business

records under N.J.R.E. 803(c)(6). See Hahnemann Univ. Hosp. v.

Dudnick, 292 N.J. Super. 11, 17-19 (App. Div. 1996).

Finally, Zaidi contends that even assuming that the

assignments included in the summary judgment record were

properly admissible, MSW Capital, like New Century, cannot prove

the first link of the assignment chain, here the transfer of

Zaidi's account from WAMU to Chase. We are satisfied that the

trial judge did not abuse his discretion in concluding

otherwise. Estate of Hanges, supra, 202 N.J. at 383-84.

MSW Capital offered the certification of its counsel Lang

to prove that the FDIC had taken over WAMU and subsequently sold

all of its assets to Chase. Lang attached publicly available

documents of Chase's filings with the Securities and Exchange

Commission and the FDIC noting the FDIC's receivership of WAMU

31 A-6078-11T4
and sale of its assets to Chase. While Zaidi contends that

those filings are not the proper subject of judicial notice

under N.J.R.E. 201(a) because the documents are not "findings"

of those agencies, the FDIC's takeover of WAMU and sale of its

assets to Chase would appear a proper subject of judicial notice

under N.J.R.E. 201(a) or (b) as evidenced by the many state and

federal courts that have taken judicial notice of those very

facts. See, e.g., Carswell v. JPMorgan Chase Bank, N.A., 500

Fed. App'x. 580, 583 (9th Cir. 2012); Arguenta v. J.P. Morgan

Chase, 787 F. Supp. 2d 1099, 1101-04 (E.D. Cal. 2011); Shirk v.

JPMorgan Chase Bank, N.A. (In re Shirk), 437 B.R. 592, 596 n.1

(Bankr. S.D. Ohio 2010); Stewart v. JPMorgan Chase Bank, N.A.

(In re Stewart), 473 B.R. 612, 618 n.2 (Bankr. W.D. Pa. 2012),

aff'd, 2013 U.S. Dist. LEXIS 111516;); Scott v. JPMorgan Chase

Bank, N.A., 154 Cal. Rptr. 3d 394, 401-09 (Ct. App. 2013),

modified 2013 Cal. App. LEXIS 280, rev. denied, 2013 Cal. LEXIS

4861.

Although we think the trial court could have taken judicial

notice of the FDIC's transfer of WAMU's assets to Chase, thus

establishing the first link in MSW Capital's chain of

assignments, it was not necessary for the court to have done so.

While Zaidi's account may have originated with WAMU, the

periodic account statements included in the summary judgment

32 A-6078-11T4
record document credit card transactions between Zaidi and

Chase. Accordingly, if those account statements are properly

admissible then no further proof of Chase's assumption of

Zaidi's account was necessary. The account statements would

establish a direct contractual relationship between Zaidi and

Chase. See Novack v. Cities Serv. Oil Co., 149 N.J. Super. 542,

548 (Law Div. 1977) (noting use of a credit card constitutes

acceptance of the offer of credit in accordance with its terms),

aff'd, 159 N.J. Super. 400 (App. Div.), certif. denied, 78 N.J.

396 (1978). We turn to those periodic account statements now.

Admissibility of the Account Statements

Defendants contend that even if plaintiffs could prove that

they owned the debts on which they sued, their proofs on the

motions for summary judgment were insufficient to establish the

original creditors' contract claims. Specifically, they contend

that the account statements on which plaintiffs relied to

establish the amounts due and owing were hearsay statements

without foundation and thus not competent evidence.12 We

disagree.

12
We reject defendants' contention that plaintiffs needed to
present the cardholder agreements in order to prove the
contracts giving rise to the debts on which they sued. While
production of the cardholder agreement would be required in a
suit in which the terms of the agreement were in dispute, no
such dispute exists in these cases. Plaintiffs' claims are for
(continued)

33 A-6078-11T4
 Plaintiffs offered the monthly credit card statements as

business records under N.J.R.E. 803(c)(6). That rule operates

to except from the hearsay rule

A statement contained in a writing or other
record of acts, events, conditions, and,
subject to Rule 808, opinions or diagnoses,
made at or near the time of observation by a
person with actual knowledge or from
information supplied by such a person, if
the writing or other record was made in the
regular course of business and it was the
regular practice of that business to make
it, unless the sources of information or the
method, purpose or circumstances of
preparation indicate that it is not
trustworthy.

[N.J.R.E. 803(c)(6).]

The purpose of the business records exception is to broaden

admissibility of relevant evidence based on principles of

necessity and trustworthiness. Liptak v. Rite Aid, Inc., 289

N.J. Super. 199, 219 (App. Div. 1996). As the Supreme Court

explained in describing the rule's evolution:

It took a long time for the courts to
recognize that business conditions and
methods demanded relaxation of the strict
rules of evidence which banned a merchant's
books from lawsuits as self-serving hearsay.

(continued)
a sum certain, the balance due on the periodic statement for the
last billing cycle; they do not seek interest or attorneys fees
at the contract rates. See Chase Bank U.S., N.A. v Staffenberg,
419 N.J. Super. 386, 388 n.1 (App. Div. 2011) (production of
cardholder agreement unnecessary where counsel fees awarded as
taxed costs pursuant to N.J.S.A. 22A:2-42).

34 A-6078-11T4
 Adoption of the shopbook rule stemmed from a
realization that mercantile and industrial
life is essentially practical, that what is
the final basis of calculation, reliance,
investment, and general confidence in every
business enterprise may ordinarily be
resorted to in proof of the main fact, and
that what the common experience of man
relies upon ought not to be summarily
discredited.

[Mahoney v. Minsky, 39 N.J. 208, 217
(1963).]

The Court quoted Professor Wigmore

The merchant and the manufacturer must not
be turned away remediless because methods
in which the entire community places a
just confidence are a little difficult
to reconcile with technical judicial
scruples . . . . In short, Courts must here
cease to be pedantic and endeavor to be
practical. 5 Wigmore, Evidence (3d ed.
1940), § 1530, p. 379.

[Ibid.]

The requirements for admitting evidence pursuant to

N.J.R.E. 803(c)(6) are now well-established.

In order to qualify under the business
record exception to the hearsay rule, the
proponent must satisfy three conditions:
"First, the writing must be made in the
regular course of business. Second, it must
be prepared within a short time of the act,
condition or event being described. Finally,
the source of the information and the method
and circumstances of the preparation of the

35 A-6078-11T4
 writing must justify allowing it into
evidence."

[State v. Sweet, 195 N.J. 357, 370 (2008)
(quoting State v. Matulewicz, 101 N.J. 27,
29 (1985)), cert. denied, 557 U.S. 934, 129
S. Ct. 2858, 174 L. Ed. 2d 601 (2009).]

There is no requirement that the foundation witness possess any

personal knowledge of the act or event recorded. State v.

Martorelli, 136 N.J. Super. 449, 453 (App. Div. 1975), certif.

denied, 69 N.J. 445 (1976). Further, N.J.R.E. 803(c)(6) follows

its federal counterpart, Fed. R. Evid. 803(6), such that

documents may properly be admitted "as
business records even though they are the
records of a business entity other than one
of the parties, and even though the
foundation for their receipt is laid by a
witness who is not an employee of the entity
that owns and prepared them."

[Hahnemann, supra, 292 N.J. Super. at 17
(quoting Saks Int'l, Inc. v. M/V "Export
Champion", 817 F.2d 1011, 1013 (2d Cir.
1987) (citation omitted)).]

Acknowledging in Hahnemann that computers had "become part of

everyday life," now "universally used and accepted," we

specifically disapproved "the application of special evidentiary

requirements for computer-generated business records." Id. at

15-16. Instead, we held that:

A witness is competent to lay the foundation
for systematically prepared computer records
if the witness (1) can demonstrate that the
computer record is what the proponent claims
and (2) is sufficiently familiar with the

36 A-6078-11T4
 record system used and (3) can establish
that it was the regular practice of that
business to make the record. If a party
offers a computer printout into evidence
after satisfying the foregoing requirements,
the record is admissible "unless the sources
of information or the method, purpose or
circumstances of preparation indicate that
it is not trustworthy."

[Id. at 18 (citation omitted) (quoting
N.J.R.E. 803(c)(6)).]

Applying those principles in Garden State Bank v. Graef,

supra, 341 N.J. Super. at 245, we held that an employee of a

successor bank could certify on summary judgment to the loan

history printouts of transactions of its predecessor because the

employee's position rendered him sufficiently familiar with the

record system used to allow him to establish that it was the

regular practice of the predecessor bank to make the record.

Acknowledging "the practicality of bank acquisitions, as a

result of which older records may be lost or destroyed," we held

that the records were sufficient to satisfy the successor bank's

prima facie showing of what it claimed was due on the

outstanding loan, notwithstanding that the records did not

itemize all payments made since the inception of the obligation.

Id. at 246. We reasoned that "[t]he printouts are admissible

because they 'appear[] perfectly regular on [their] face and as

having been issued in the regular course of business prior to

37 A-6078-11T4
the inception of any controversy between the parties.'" Ibid.

(quoting Mahoney, supra, 39 N.J. at 213).

The same is true of the credit card statements included in

the summary judgment record here. Plaintiffs submitted

certifications by employees having personal knowledge of the

books and records of plaintiffs and the transactions whereby

plaintiffs acquired the charged-off debts on which they sued.

The employees certified that they acquired the account

statements attached to their certifications as part of the

purchase of the charged-off debts. The employees certified that

the account statements were true copies and reflected amounts

due their predecessors as of the final billing cycle.

Although defendants assert that there was no explanation of

the transactions and credits reflected on the account

statements, the process is familiar to anyone who has ever paid

a credit card bill. See State v. Swed, 255 N.J. Super. 228, 239

(App. Div. 1992) (noting widespread familiarity with the process

whereby meter readers enter readings into hand-held computers

resulting in the monthly statements received by customers of

PSE&G). These account statements are the types of documents our

courts have long accepted as business records excepted from the

hearsay rule under N.J.R.E. 803(c)(6). See Sears, Roebuck & Co.

v. Merla, 142 N.J. Super. 205, 207-08 (App. Div. 1976)

38 A-6078-11T4
(discussing admissibility of such records under prior Evid. R.

63(13)); Biunno, Weissbard & Zegas, Current N.J. Rules of

Evidence, comment 2 on N.J.R.E. 803(c)(6) (2013).

Even more important in the context of these actions, Rule

6:6-3(a) provides that "if the plaintiff's records are

maintained electronically and the claim is founded on an open-

end credit plan," as defined in 15 U.S.C.A. § 1602(i), the Truth

in Lending Act, and 12 C.F.R. § 226.2(a)(20) (2013), Regulation

Z, as these claims are, "a copy of the periodic statement for

the last billing cycle, as prescribed by 15 U.S.C. § 1637(b) and

12 C.F.R. § 226.7 . . . if attached to the affidavit, shall be

sufficient to support the entry of judgment."

The 1992 Report of the Special Civil Practice Committee

explains the reason for the Rule.

New Jersey law (N.J.S.A. 17:16c-
34.1(b)) brings the kind of credit accounts
at issue here within the ambit of the Truth
in Lending Act. The credit accounts, such
as a Sears charge or Master Card, are
defined as "open end credit plans" by the
Act and by the implementing regulations,
commonly known as Regulation Z, adopted by
the Board of Governors of the Federal
Reserve System. See 15 U.S.C.A. §1602(i)
and 12 C.F.R. §226.2(a)(20). The Act and
Regulation Z require the creditor to furnish
the consumer with a periodic statement for
each billing cycle. 15 U.S.C.A. §1637(b)
and 12 C.F.R. §226.7. In reviewing 12
C.F.R. §226.7 the Committee noted the extent
of the information required and that
subsection (k) requires that the address for

39 A-6078-11T4
notice of billing errors be placed either on
the periodic statement or on a summary
statement of the consumer's billing rights
included with the periodic statement.

The consumer's rights to assert claims
and defenses against the issuer of the
credit card and to contest billing errors
are set forth in detail in 12 C.F.R.
§226.12(c) and §226.13, respectively. When
the credit account is established the
creditor is required by 12 C.F.R. §226.6(d)
to furnish the consumer with a detailed
statement of those rights, in the form set
forth in the appendix to Regulation Z. The
creditor is also required by 12 C.F.R.
§226.9 to furnish a similar statement of
rights to the consumer either annually or
with each periodic billing statement. The
consumer is advised in these statements that
he or she has 60 days from the receipt of a
periodic statement containing a billing
error to give the creditor notice of the
error. The statements and 12 C.F.R. §226.13
set forth the detailed procedures to be
followed in resolving the alleged billing
error.

In this rather elaborate regulatory
context, a logical inference can be drawn
from a consumer's failure to assert a
billing error that the new balance set forth
in the periodic statement is true and
correct. Accordingly, the Committee
believes that it should be sufficient proof
for entry of default judgment, in suits on
credit accounts subject to the Truth in
Lending Act, if the plaintiff attaches to
the affidavit a copy of the periodic
statement for the last billing cycle or a
computer-generated report setting forth the
financial information required to be in that
statement.

[1992 Report of the Supreme Court Committee
on Special Civil Practice at 33-35.]

40 A-6078-11T4
 We have held that Rule 6:6-3(a) provides a guide to the

proofs necessary for the entry of summary judgment in a suit on

a credit card.13 Colvell, supra, 421 N.J. Super. at 6. As the

1992 Report of the Civil Practice Committee makes clear, the

elaborate regulatory requirements for the issuance of credit

cards, including the duty of card issuers to provide detailed

periodic account statements, imbues such statements with

"sufficient indicia of trustworthiness and reliability normally

found in business records" admitted under the Rule. Feldman v.

Lederle Labs., 132 N.J. 339, 354 (1993).

The account statements meet all the foundation requirements

of N.J.R.E. 803(c)(6). Although the certifications submitted by

plaintiffs could have been more specific as to plaintiffs'

acquisition of the account statements in connection with their

purchase of defendants' charged-off credit card debts, we reject

defendants' contention that more was required from plaintiffs'

employees to authenticate the account statements under N.J.R.E.

901 and Hahnemann.

Defendants express significant concern over admitting

electronically-transmitted credit card account statements for

13
As the account statements were before the trial courts in both
cases, the concerns we raised in Colvell where such statements
were not admitted are not present here. Colvell, supra, 421
N.J. Super. at 6-8.

41 A-6078-11T4
accounts that have been assigned several times, but they have

not pointed to anything in the record to suggest that the

statements proffered by plaintiffs are not trustworthy.14

Carmona v. Resorts Int'l Hotel, Inc., 189 N.J. 354, 380 (2007)

("[t]here is no reason to believe that a computerized business

record is not trustworthy unless the opposing party comes

forward with some evidence to question its reliability.

Hahnemann[, supra, 292 N.J. Super at 18]."). It is not lost on

us that plaintiffs filed their complaints and summary judgment

motions electronically in the Special Civil Part, and that the

judges entered their orders granting the motions in the

Judiciary Electronic Filing and Imaging System (JEFIS), where

they are maintained in electronic case jackets. See Notice to

the Bar: Mandatory Electronic Filing in the Special Civil Part

of the Law Division of the New Jersey Superior Court – Phase Two

1-2 (2010), available at http://www.judiciary.state.nj.us/

14
Zaidi contends that the legend "This Statement is a Facsimile
– Not an Original," on the account statements, provides yet
another reason for not admitting them, relying on Am. Express
Travel Related Servs. v. Vinhee (In re Vee Vinhee), 336 B.R. 437
(B.A.P 9th Cir. 2005) (upholding trial court decision to require
foundational evidence of reliability of American Express's
computer hardware and software because statements proffered bore
term "duplicate copy" as a result of being maintained
electronically). In re Vee Vinhee is not in accord with New
Jersey case law. See Carmona, supra, 189 N.J. at 380, Biunno,
Weissbard & Zegas, supra comment 2 on N.J.R.E. 803(c)(6) (2013).

42 A-6078-11T4
notices/2010/n100722.pdf. Like the litigants that appear in our

courts, our courts are increasingly reliant on electronically

filed and transmitted information.

Finally, defendants contend that the express disclaimers of

representations and warranties in the transfer of these accounts

raise sufficient reliability concerns to bar the admission of

the account statements under N.J.R.E. 803(c)(6). As noted by

the FTC in the reports on which defendants rely, commercial debt

sellers may choose not to warrant account information for

reasons other than the unreliability of that information. The

disclaimers, standing alone, are simply not enough to raise

serious doubt about the dependability of account statements that

appear regular on their face. See Matulewicz, supra, 101 N.J.

at 30. Accordingly, we conclude that the account statements

submitted by plaintiffs are admissible as business records under

N.J.R.E. 803(c)(6), and provide prima facie proof of the amount

due on the debts. See New Century Fin. Servs., Inc. v.

Dennegar, 394 N.J. Super. 595, 599 (App. Div. 2007) (concluding

that the trial judge acted within his discretion in admitting

monthly credit card statements on assigned claim).

The admission of the chain of assignments and account

statements in Zaidi's case did not, of course, assure the entry

of summary judgment. They provided only prima facie proof that

43 A-6078-11T4
MSW Capital is the owner by assignment of Zaidi's Chase-WAMU

charged-off credit card account on which $12,487.36 is due.

Sullivan, supra, 68 N.J.L. at 546-47. But in order to stave off

summary judgment, Zaidi had to come forward with evidence

sufficient to create a genuine issue as to those material facts

on which MSW's prima facie claim was based. Brill, supra, 142

N.J. at 529.

Zaidi failed to come forward with any evidence raising a

genuine dispute as to either the assignments or the account

statements. The trial court found that Zaidi had not offered

anything to dispute his responsibility for the account, the

accuracy of the amount due at charge-off, or his receipt of the

billing statements. Accordingly, we affirm the trial court's

entry of summary judgment in favor of MSW Capital.

We appreciate that the sums in these cases are often modest

and defendants commonly self-represented, but that seems all the

more reason to require that the plaintiffs' proofs be presented

in a clear and straightforward fashion. See Quality Urban Hous.

Partners, supra, 352 N.J. Super. at 543. Plaintiffs' summary

judgment filings were a morass of certifications and exhibits,

with multiple certifications submitted by the same person, often

with exhibits consisting of certifications by other persons.

44 A-6078-11T4
The assignments presented did not consistently identify the

accounts and electronic files by the same names.

In Oughla's case, New Century submitted additional proofs

in opposition to a motion for reconsideration which asserted its

original proofs were inadequate. In Zaidi's case, MSW Capital

submitted additional certifications in response to Zaidi's

cross-motion for summary judgment. We reject defendants'

contention that the judges erred in considering those additional

certifications, such matters are left to the sound discretion of

the trial judge. Capital Fin. Co. of Del. Valley v. Asterbadi,

398 N.J. Super. 299, 310-11 (App. Div.), certif. denied, 195

N.J. 521 (2008). We cannot fail to note, however, that

plaintiffs' presentation of their proofs needlessly complicated

these cases.

The requirements for affidavits in support of summary

judgment on assigned claims are clear. R. 1:6-6; Ford, supra,

418 N.J. Super. at 599-600. Affidavits in which the affiant

fails to identify specifically his position, or explain the

source of his personal knowledge of the facts to which he

attests, or attempts to authenticate attached documents without

explaining precisely what each is and how it came into the

affiant's hands should be rejected. Graef, supra, 341 N.J.

Super. at 245-46. Likewise, trial courts are free to reject any

45 A-6078-11T4
document for which there exists a genuine question of

authenticity. Triffin v. Johnston, 359 N.J. Super. 543, 550-51

(App. Div. 2003). Documents appended to a brief or statement of

material facts, not authenticated in a certification must be

rejected. Celino, supra, 211 N.J. Super. at 544; see also

Pressler & Verniero, Current N.J. Court Rules, comment on R.

1:6-6 (2014).

Although the parties raise various other points in support

of their respective positions, none is of sufficient merit to

warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

We reverse the judgment in A-6078-11, New Century v.

Oughla, and remand for further proceedings. We affirm the

judgment in A-6370-11, MSW Capital v. Zaidi. We do not retain

jurisdiction.

46 A-6078-11T4