Existence Of Agreement Was Established With Affidavit Of A Person With First-Hand Knowledge Of Procedures.
Plaintiff Yenko filed a putative class action lawsuit against Crown Asset Management, LLC, a debt buyer that purchased plaintiff's alleged charged-off credit card debt. The trial court held that Crown, as the assignee of a Credit Card Account Agreement (CCAA), was entitled to enforce an arbitration provision contained therein. The First Appellate District, Div. One, agreed. Yenko v. Crown Asset Management, LLC, A148536 (1/1 8/1/17) (Margulies, Dondero, Banke) (unpublished).
A tricky part in such cases where an assignee such as Crown, purchases debt and obtains paper, is finding a declarant who can authenticate the key documents. Here, Crown did so with the affidavit of the manager of litigation support for the company that issued plaintiff her J.C. Penney credit card. Obviously the affiant did not have first-hand knowledge of the individual transaction, but she did have knowledge of the company's business practices. And she was able to testify, based on her personal knowledge of operations and records kept in the ordinary course of business with which she was familiar, that the company sent the CCAA to plaintiff; that it was the company's practice to send the CCAA with the credit card; and, that the effective agreement as of the date of the transaction was attached to her credit card. Plaintiff admitted she had received the credit card and made purchases with it. The evidence satisfied the trial court, and the Court of Appeal.
Plaintiff also argued that the arbitration agreement could not be enforced, because the assignee was only assigned a "receivable" and not an "account", and argument that had no traction with the Court of Appeal. The Court stated, "We observe courts in many other jurisdictions have determined the assignment of accounts receivable transfers underlying contractual rights, including the right to arbitrate."
Comments