In addition family law cases, I also defend credit card debt collection cases. Often, divorcing couples are left with credit card debt that they cannot pay because they have just went from having a certain amount of money to support one household to supporting two households with the same amount of money. Almost always, plaintiffs in credit card collection cases cannot prove their case, whether the plaintiff is the original creditor or an entity that has purchased the account. This is because of poor record keeping. Often, the only evidence the plaintiff can produce is a small amount of monthly statements that show little if any purchases; a card holder agreement that lists no parties, is undated, and is not signed; and an affidavit from a paralegal claiming to be the plaintiff's custodian of records that lists no documents, but claims that he or she has reviewed the records and makes a conclusory statement about the balance owed. Clearly, this is insufficient to prove the plaintiff's case. However, many trial court judges often grant judgment to the plaintiff anyway, declining to hold them to the standard of proof. Often, trial court judges will grant the plaintiff summary judgment on such flimsy evidence (summary judgment is granting judgment without a trial because, on the evidence presented in the motion for summary judgment, any reasonable juror would find for the moving party and the moving party is entitled to judgment as a matter of law).

Fortunately, the Arizona Court of Appeals has finally published a decision clearly stating the requirements to grant summary judgment in a credit card debt collection case. In Wells Fargo Bank v. Allen, Wells Fargo, the plaintiff, sued the Allens for collection of a credit card debt. Wells Fargo presented one monthly statement showing no purchases; an unsigned card holder agreement that did not identify the parties to the agreement; and a conclusory affidavit from a custodian of records that listed no documents, but claimed that the custodian had reviewed records and made a conclusory statement about the amount owed. The trial court granted summary judgment.

The Arizona Court of Appeals first addressed the summary judgment standard generally. It held that a plaintiff cannot shift the burden of proof to the defendant by filing a motion for summary judgment. It is the party moving for summary judgment who bears the burden of persuasion. To meet its burden, a plaintiff seeking summary judgment must submit undisputed admissible evidence that would compel any reasonable juror to find in its favor on every element of the claim. In a credit card debt collection case, a general avowal in an affidavit by a paralegal claiming to be a custodian of records (without attaching or describing those records or otherwise providing the court a means to evaluate the accuracy of the calculation of the balance due) does not demonstrate by admissible evidence that the plaintiff is entitled to judgment as a matter of law, even if the defendant does not dispute any of the facts.

Hopefully, the Allen decision has made the outcome of credit card debt collection cases more predictable.