Portfolio Recover Associates, LLC v. Richard Docamp

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2021 ME 20
Docket: Cum-20-157 & Cum-20-158
Argued: February 9, 2021
Decided: April 6, 2021

Panel: MEAD, GORMAN, JABAR, HUMPHREY, HORTON, and CONNORS, JJ.

PORTFOLIO RECOVERY ASSOCIATES, LLC

v.

CASEY CLOUGHERTY

*****

PORTFOLIO RECOVERY ASSOCIATES, LLC

v.

RICHARD DOCAMPO

CONNORS, J.

[¶1] In this consolidated appeal, Casey Clougherty and Richard Docampo

challenge the District Court’s (Bridgton, Woodman, J.) admission of integrated

business records in the credit card debt collection matters against them.1 When

these matters were decided by the trial court, our jurisprudence contained two

1 Although these cases concern collection actions by a debt buyer, the recent amendments to the

Maine Fair Debt Collection Practices Act do not apply because the debts at issue were purchased
before January 1, 2018. See 32 M.R.S. §§ 11001-11054 (2020); P.L. 2017, ch. 216 (effective
Nov. 1, 2017) (enacting special requirements for collection actions brought by consumer debt buyers
for debts sold on or after January 1, 2018).
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conflicting interpretations of Maine Rule of Evidence 803(6) with regard to

integrated business records. The trial court admitted the records in accordance

with the predominant evidentiary standard at the time. Because we conclude

that the trial court’s factual findings underlying the admission of the challenged

records were erroneous, and given that we recently clarified the proper

approach for evaluating the sufficiency of a foundation laid by a proponent of

integrated business records in Bank of New York Mellon v. Shone, 2020 ME 122,

¶¶ 1, 7-28, 239 A.3d 671, we vacate the judgments that the District Court

entered in favor of Portfolio Recovery Associates, LLC, and remand these

matters for further proceedings.

I. BACKGROUND

[¶2] The following brief procedural history is drawn from the trial

court’s records.

[¶3] On May 8, 2019, Portfolio filed a complaint in the District Court

against Clougherty, seeking a judgment in the amount of $9,309.01. The

complaint alleged that Clougherty had opened a Capital One credit card

account, that he had defaulted on that account, that Portfolio had purchased the

debt, and that the balance was due and owing. On August 30, 2019, Portfolio

filed a nearly identical complaint against Docampo, seeking a judgment in the
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amount of $7,889.06 for an alleged debt owed on a defaulted Synchrony Bank

credit card account. Clougherty and Docampo denied the allegations.

[¶4] On March 11, 2020, the trial court held back-to-back bench trials.

Clougherty and Docampo did not offer any witnesses or exhibits at their

respective trials. Portfolio offered several documentary exhibits through the

testimony of one witness—a records custodian employed by Portfolio.

[¶5] At Clougherty’s trial, Portfolio sought the admission of documents

created by Capital One, including a Capital One customer agreement, monthly

credit card statements, a spreadsheet containing information about

Clougherty’s account, and an affidavit of Capital One’s vice president of loss

mitigation stating that these records were kept in the ordinary course of Capital

One’s business. To establish the foundation, Portfolio’s records custodian

testified that she had received training on Capital One’s business practices

during a sixty- to ninety-minute conference call in 2011. Although she testified

that the training covered Capital One’s business process “step by step,” the

witness could not recall all the steps and did not have any personal knowledge

of how Capital One created, maintained, or stored its credit card account

records.
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[¶6] At Docampo’s trial, Portfolio offered similar documents generated

by Synchrony Bank. Portfolio’s records custodian testified that she attended a

one-hour in-person training session in 2015 on the business practices of

Synchrony Bank, but she admitted that the training did not cover Synchrony

Bank’s day-to-day record-keeping practices.

[¶7] Clougherty and Docampo objected to the admission of the

documents created by Capital One and Synchrony Bank, respectively, arguing

that Portfolio’s records custodian was not a qualified witness because she did

not have sufficient knowledge of the original creditors’ practices for the

creation and maintenance of their business records. The court admitted the

records over their objections and entered judgments in favor of Portfolio,

finding that Portfolio’s records custodian was “a qualified witness given her

experience and training.” Clougherty and Docampo timely appealed. See

14 M.R.S. § 1901(1) (2020); M.R. App. P. 2B(c). We consolidated the appeals for

purposes of supplemental briefing and oral argument.

II. DISCUSSION

[¶8] In Shone, 2020 ME 122, ¶¶ 1, 7-28, 239 A.3d 671, we resolved a

conflict between two interpretations of Maine Rule of Evidence 803(6), as that
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rule applies to integrated business records, by reaffirming the approach first

set forth in Northeast Bank & Trust Co. v. Soley, 481 A.2d 1123, 1127 (Me. 1984).

[¶9] The approach to integrated business records used in the

proceedings at issue here, however, was the interpretation described in

Beneficial Maine Inc. v. Carter, 2011 ME 77, ¶¶ 12-14, 25 A.3d 96, and its

progeny. The Carter approach required that the presenting witness have

sufficient knowledge of the practices of both the business that created the

record and the business that received it. Id. Based on that standard, the trial

court erred in finding that Portfolio’s records custodian was a qualified witness

because she was unable to describe with any particularity the record-keeping

practices of the original creditors. See Am. Express Bank FSB v. Deering,

2016 ME 117, ¶ 12, 145 A.3d 551 (“[W]e review a trial court’s foundational

findings to support admissibility for clear error.” (quotation marks omitted)).

[¶10] In Shone, we articulated that the Soley approach to integrated

records “eliminates the need for testimony about the practices of the entity that

created the record and shifts the focus to the record’s status within the

receiving entity.” 2020 ME 122, ¶ 8, 239 A.3d 671. Thus, “a record that one

business has received from another is admissible under Rule 803(6) without

testimony about the practices of the business that created the record, provided,
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first, that the proponent of the evidence establishes that the receiving business

has integrated the record into its own records, has verified or otherwise

established the accuracy of the contents of the record, and has relied on the

record in the conduct of its operations, and, second, that the opponent of

admission has not shown that the record is nonetheless not sufficiently

trustworthy to be admitted.” Id. ¶ 1.

[¶11] Because the parties developed their respective records with a

different evidentiary standard in mind, fairness requires that we remand these

matters for further proceedings, which may include reopening the record to

allow further argument or to take new evidence. See id. ¶ 30 n.9; Ne. Harbor

Golf Club, Inc. v. Harris, 661 A.2d 1146, 1152 (Me. 1995) (allowing the trial court

to further develop the record on remand after announcing the adoption of a

different legal standard than the one applied at trial). The foundational

requirements for the admission of business records contain a factual

component, and that component is entirely within the province of the

fact-finder. See id. Nothing in this opinion should be construed as intimating

whether the business records at issue should be admitted as integrated records.

The entry is:
Judgments vacated. Remanded for further
proceedings consistent with this opinion.
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Jonathan E. Selkowitz, Esq. (orally), Pine Tree Legal Assistance, Inc., Portland,
for appellants Casey Clougherty and Richard Docampo

Kathrine Audet, Esq., and Edward L. Zelmanow, Esq. (orally), Law Offices
Howard Lee Schiff, P.C., Portland, for appellee Portfolio Recovery Associates,
LLC

Bridgton District Court docket numbers CV-2019-67 and CV-2019-121
FOR CLERK REFERENCE ONLY