Theodore Miller v. LVNV Funding LLC (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Kyle (Katherine) Wood Jeanine Kerridge
Katherine J. Rybak Barnes & Thornburg LLP
Indiana Legal Services, Inc. Indianapolis, Indiana
Bloomington, Indiana
ATTORNEYS FOR AMICUS CURIAE
NOTRE DAME CLINICAL LAW
CENTER
Judith Fox Jun 30 2015, 7:05 am
Jackson Garvey, Certified Legal Intern
Notre Dame Clinical Law Center
South Bend, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Theodore Miller, June 30, 2015

Appellant-Defendant, Court of Appeals Case No.
82A04-1412-SC-598

v. Appeal from the Vanderburgh
Superior Court
The Honorable J. August Straus,
LVNV Funding LLC, Magistrate
Appellee-Plaintiff Trial Court Cause No. 82D06-1403-
SC-2891

Bradford, Judge.

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 Case Summary
[1] In 2005, Appellant-Defendant Theodore Miller obtained a Walmart credit card,

with the credit account being owned by General Electric Capital Corporation.

Miller last made a payment on the account in 2009, leaving an unpaid balance

of approximately $1500. At some point, the debt was acquired by Appellee-

Plaintiff LVNV Funding LLC, who sued Miller to collect. During the hearing

in this small-claims action, the trial court took judicial notice of an affidavit of

debt attached to LVNV’s complaint and entered judgment in LVNV’s favor.

Miller contends that LVNV failed to produce sufficient evidence to sustain the

trial court’s judgment and that the trial court abused its discretion in basing its

judgment on allegedly improper hearsay evidence. We affirm.

Facts and Procedural History
[2] On January 20, 2005, Miller obtained a Walmart credit card issued by General

Electric Capital. Miller last made a payment on the Walmart card on

September 25, 2009, leaving an unpaid balance of $1509.97. On March 14,

2014, LVNV filed a notice of claim in small-claims court to collect the debt. On

October 28, 2014, the trial court held a hearing on the matter, taking judicial

notice of an affidavit of debt attached to LVNV’s notice of claim, which

provided as follows:

AFFIDAVIT OF DEBT
Comes now affiant, and states:

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 1. I, Tobie Griffin, am an employee of Resurgent Capital
Services, LP, servicing agent for Plaintiff, and I am
authorized to make this affidavit.
2. I am of adult age and am fully authorized by Plaintiff to
make the following representations which are true
according to documents kept in the normal course of
Plaintiff’s business and/or my personal knowledge. I am
familiar with the recordkeeping practices of Plaintiff.
3. Plaintiff has obtained this debt from GE Money Bank and
the original owner of this debt was General Electric
Capital Corporation.
4. Theodore Miller, the Defendant, has an unpaid balance of
$1,509.97 on account ************3475, plus interest at a
rate of 0.00% from 5/2/2010. This account was opened on
1/20/2005. The last payment from Defendant was
received on 9/25/2009.
5. The account which is the subject of the Complaint is a
credit account.
6. This account balance includes:
a. Late fees in the amount of $ 0.00 accruing from
5/2/2010.
b. Interest at a rate of 0.00% beginning from
5/2/2010.
c. Plaintiff is not seeking attorney’s fees.
7. Plaintiff believes that Defendant is not a minor or an
incompetent individual.
I swear or affirm under the penalties of perjury that the
foregoing representations are true.
Appellant’s App. p. 15.

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[3] At the conclusion of the hearing, the trial court entered judgment in favor of

LVNV for $1509.97 plus court costs. On November 26, 2014, Miller filed a

motion to correct error, which the trial court denied on December 2, 2014.

Discussion and Decision
[4] Miller is appealing from a judgment in a small claims action, and we therefore

employ the following standard of review:

Judgments in small claims actions are “subject to review as
prescribed by relevant Indiana rules and statutes.” Ind. Small
Claims Rule 11(A). Under Indiana Trial Rule 52(A), the clearly
erroneous standard applies to appellate review of facts
determined in a bench trial with due regard given to the
opportunity of the trial court to assess witness credibility. This
“deferential standard of review is particularly important in small
claims actions, where trials are ‘informal, with the sole objective
of dispensing speedy justice between the parties according to the
rules of substantive law.’” City of Dunkirk Water & Sewage Dep’t v.
Hall, 657 N.E.2d 115, 116 (Ind. 1995) (quoting S.C.R. 8(A)). But
this deferential standard does not apply to the substantive rules of
law, which are reviewed de novo just as they are in appeals from
a court of general jurisdiction. Lae v. Householder, 789 N.E.2d
481, 483 (Ind. 2003). Similarly, where a small claims case turns
solely on documentary evidence, we review de novo, just as we
review summary judgment rulings and other “paper records.”
See Harrison v. Thomas, 761 N.E.2d 816, 818 (Ind. 2002)
(reviewing the trial court’s decision de novo after a bench trial
where the parties relied on documentary evidence); Univ. of S.
Ind. Found. v. Baker, 843 N.E.2d 528, 531 (Ind. 2006) (“To the
extent the evidence the parties offered is admissible, it is
documentary .... our standard of review is de novo.”)
Trinity Homes, LLC v. Fang, 848 N.E.2d 1065, 1067-68 (Ind. 2006).

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 I. Sufficiency of the Evidence
[5] Miller first contends that the affidavit of debt noticed by the trial court is

insufficient to establish that LVNV actually owned the debt at issue. In small

claims actions,

A judgment in favor of a party having the burden of proof will be
affirmed if the evidence was such that a reasonable trier of fact
could conclude that the elements of the claim were established by
a preponderance of the evidence. This court gives due deference
to the trial court’s opportunity to judge the credibility of the
witnesses, does not reweigh the evidence, and considers only the
evidence and reasonable inferences therefrom that support the
trial court’s judgment.
Fortner v. Farm Valley-Applewood Apts., 898 N.E.2d 393, 398 (Ind. Ct. App. 2008)

(citations omitted).

[6] As previously mentioned, LVNV submitted an affidavit of debt with its notice

of complaint, which was required in this case. See Indiana Small Claims Rule

2(B) (“The notice of claim shall contain … [a] brief statement of the nature and

amount of the claim; and … if the claim is on an account, an Affidavit of Debt,

in a form substantially similar to Small Claims Appendix A shall be

attached[.]”).

[7] Miller claims that the following passage of the affidavit of debt is insufficient to

establish that it owned Miller’s debt: “Plaintiff has obtained this debt from GE

Money Bank and the original owner of this debt was General Electric Capital

Corporation.” Appellant’s App. p. 15. We disagree. Miller takes issue with

what he argues is the insufficient (1) foundation for the affiant’s knowledge and
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 (2) evidence of valid assignments of the debt from General Electric Capital to

GE Money Bank and then to LVNV. The affidavit, however, contains an

unequivocal statement that LVNV owns the debt, a statement based on the

affiant’s personal knowledge and LVNV’s records, with which Griffin avers to

be familiar. Moreover, as LVNV points out and Miller concedes, Griffin’s

affidavit conformed to the sample affidavit provided in Small Claims Appendix

A. The trial court was entitled to credit Griffin’s affidavit and did so. Miller is

essentially arguing that LVNV should have had to prove more than the Small

Claims Rules require. Miller, however, points to no authority that any more

evidence than a properly-executed affidavit of debt is required in a small claims

proceeding, and we are aware of none. Miller’s argument, in the end, is

nothing more than an invitation to reweigh the evidence (or substantially

rewrite the Small Claims Rules), which we will not do.

II. Hearsay
[8] Miller also contends that the trial court should not have been able to rely on the

affidavit of debt, even if nominally sufficient to prove LVNV’s claim, because it

was based on hearsay containing legal conclusions regarding the elements of

that claim. Again, as Miller acknowledges, Small Claims Rule 8(A) provides

that

[t]he trial shall be informal, with the sole objective of dispensing
speedy justice between the parties according to the rules of
substantive law, and shall not be bound by the statutory
provisions or rules of practice, procedure, pleadings or evidence

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 except provisions relating to privileged communications and
offers of compromise.
(Emphasis added). So, prohibitions against the use of hearsay simply do not

apply in small claims proceedings. A further Miller acknowledgment is that the

Indiana Supreme Court has upheld a small claims judgment based solely on

hearsay by a non-party affiant. See Matusky v. Sheffield Square Apts., 654 N.E.2d

740, 742 (Ind. 1995). Miller, however, contends that we should carve out an

exception for “hearsay statements that assert nothing more than the elements of

a claim without factual support[,]” arguing that allowing such statements

“opens the door to unscrupulous plaintiffs to pursue claims to which they have

no legal right.” Appellant’s Br. p. 15. In the end, though, Miller provides no

relevant legal authority to support the creation of such an exception, and we are

aware of none. The Small Claims Rules allow the use of hearsay, and that is

that. The trial court did not abuse its discretion in basing its judgment on the

evidence contained in Griffin’s affidavit.

[9] The judgment of the trial court is affirmed.

Vaidik, C.J., and, Kirsch, J., concur.

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