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Midland Funding, LLC v. Howell

Court of Appeals of Arizona, First Division

November 12, 2013

MIDLAND FUNDING, LLC, Plaintiff/Appellee,
v.
LISA HOWELL, Defendant/Appellant

Not for Publication – Rule 111, Rules of the Arizona Supreme Court

Appeal from the Superior Court in Maricopa County CV2012-001355 The Honorable Michael J. Herrod, Judge

Lisa Howell, Phoenix Defendant/Appellant in Propria Persona

Jerold Kaplan Law Office, PC, Phoenix By Patricio Esqquivel Counsel for Plaintiff/Appellee

Presiding Judge Andrew W. Gould delivered the decision of the Court, in which Judge Donn Kessler and Judge Michael J. Brown joined.

MEMORANDUM DECISION

GOULD, Judge

¶1 Appellant Lisa Howell ("Howell") appeals the trial court's grant of summary judgment in favor of Midland Funding, LLC ("Midland"). For the following reasons, we reverse and remand for further proceedings.

BACKGROUND

¶2 Midland filed a complaint against Howell, alleging she had defaulted on a Citibank/Home Depot[1] credit card account that had been assigned to Midland. Howell filed an answer denying she owed the debt.

¶3 After Howell filed her answer, Midland moved for summary judgment. In support of its motion, Midland attached a billing statement which Midland's counsel asserted was "a true and correct copy of Monthly Statement [sic] from October 24, 2010, regarding Defendant's credit card account." Midland also incorporated by reference an affidavit attached to its complaint. The affidavit was executed by April Crandall, a "Legal Specialist" for Midland Credit Management, Inc. ("MCM"). Attached to Crandall's affidavit was a copy of an unsigned credit card agreement.[2]

¶4 Howell filed a response to Midland's motion, arguing that Midland failed to present any admissible evidence showing she owed the debt. Howell attached an affidavit to her response generally avowing that she did not owe the debt. Howell also filed a separate motion to strike Crandall's affidavit as inadmissible hearsay. The court granted Midland's motion for summary judgment and denied Howell's motion to strike. This timely appeal followed.

DISCUSSION

¶5 We review de novo a grant of summary judgment, viewing the evidence in the light most favorable to the party opposing the motion. Andrews v. Blake, 205 Ariz. 236, 240, ¶ 12, 69 P.3d 7, 11 (2003) (internal citation omitted). A court may grant summary judgment when "there is no genuine issue as to any material fact and [] the moving party is entitled to judgment as a matter of law." Ariz. R. Civ. P. 56(c).

¶6 A party seeking summary judgment must support its motion with specific facts that are admissible as evidence. See Ariz. R. Civ. P. 56(e); GM Development Corp. v. Community American Mortg. Corp., 165 Ariz. 1, 8, 795 P.2d 827, 834 (App. 1990). A party opposing summary judgment must contest the accuracy of the moving party's evidence with specific, admissible facts. See Ari ...


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