Lester v. Portfolio Recovery Assocs., LLC
Lester v. Portfolio Recovery Assocs., LLC
Opinion of the Court
Before the Court is Defendant Portfolio Recovery Associates, LLC,'s ("PRA")
*1230Amended Motion for Leave To Supplement the Record (the "Amended Motion for Leave"). (Doc. 25). As more specifically set out below, the Amended Motion for Leave fails to comply with this Court's Uniform Initial Order and is due to be DENIED for that reason. It is also due to be DENIED for the alternative reason that the facts and documents that PRA seeks to add to the record on appeal are either already in the record or would improperly add to the appellate record facts and documents that were not before this Court at the time it entered the Order being appealed. This Court will not join with PRA in misrepresenting the record on appeal.
I. BACKGROUND
Plaintiff William Lester, Jr., filed this suit against PRA alleging that PRA continues to falsely report to credit reporting agencies that Plaintiff owes $3,046 on a certain account. (Doc. 1-1 at 13-16, ¶¶ 59, 60, 66, 78, 83, 91). The account at issue ends with the numbers -4658 and is associated with a Lowes Home Improvement credit card (the "Account"). The credit card was issued by Synchrony Bank ("Synchrony"), but PRA purchased the Account.
On May 3, 2018, PRA filed a Motion To Stay or Dismiss Proceedings and Compel Arbitration (the "Arbitration Motion"). (Doc. 16). On the same day, PRA also filed its Brief in support of its Arbitration Motion. (Doc. 17). Attached to the Brief in support of the Arbitration Motion was a Declaration of Martha A. Koehler ("Ms. Koehler"), the Manager of Litigation Support for Synchrony (the "Synchrony Declaration"). (Doc. 17-1). Attached to the Synchrony Declaration are several exhibits. (See id. ) In the Synchrony Declaration, Ms. Koehler states, inter alia : "Enclosed within the billing statement dated February 28, 2012 was a change in the terms to the Account. The change in terms is attached hereto as Exhibit B ." (Id. at 3, ¶ 8). Indeed, the change in terms (the "Change in Terms") is attached as Exhibit B. (Id. at 8-9). In the Synchrony Declaration, Ms. Koehler also states, inter alia : "According to Synchrony's records, Synchrony sold the Account to [PRA] in June 2016. The Account was one of the accounts sold by Synchrony to [PRA] under the Bill of Sale and Affidavit of Sale of Account annexed hereto as Exhibit G ." (Id. at 3, ¶ 14). Although Ms. Koehler references an "Affidavit of Sale of Account" (the "Affidavit of Sale"), no Affidavit of Sale is attached to the Synchrony Declaration in Exhibit G. (See id. at 25-26).
On May 17, 2018, Plaintiff filed his opposition (doc. 19) to the Arbitration Motion, and on May 22, 2018, the Court set a hearing on it for June 20, 2018. (Doc. 20).
At the hearing, the Court pointed out that Plaintiff had said that the Synchrony Declaration "references documents that are supposedly attached that aren't." (Doc. 22 at 13-14). PRA's attorney responded that the part of the Synchrony Declaration stating that the Affidavit of Sale was attached as Exhibit G was a "typographical error." (Id. at 14). Furthermore, PRA's attorney stated, "I don't know that there's an affidavit of sale of account that exists." (Id. ) PRA's attorney later made clear PRA's view that this was a typo by stating, "That was a typo in this declaration. [The Affidavit of Sale] wasn't something that was intended to be attached as Exhibit G. I'm not aware of." (Id. at 15). On a separate matter regarding a sale notification letter (the "Sale Notification Letter"), the following exchange took place between PRA's attorney and the Court:
[PRA's Attorney]: ... We don't think we need something to magically say this has been assigned. But, Your Honor, this is what I handed up to your clerk before the hearing today. If the Court *1231really lie [sic] believes that that is necessary, here it is. This letter - -
THE COURT: Did you give a copy of this to - -
[PRA's Attorney]: Yes, before the hearing, Your Honor.
THE COURT: Thank you.
[PRA's Attorney]: This letter itself, we don't believe you have to [sic] the magic word of assign, and I want to make that point very clear.
(Id. at 55-56). The Sale Notification Letter was not mentioned at any other time during the hearing.
On July 11, 2018, the Court issued a Memorandum Opinion and Order denying the Arbitration Motion. (Doc. 21). The Court stated,
Accordingly, on these facts, and in light of the Defendant's underdeveloped argument on this issue, the Court HOLDS that Synchrony only transferred to PRA the right to collect Lester's receivable. Because the right to compel arbitration for the Plaintiff's claims is not associated with legally enforcing, filing suit, collecting, settling, or a similar action with respect to the receivable, the Court cannot hold that Utah Code Ann. § 70A-9a-404, or any other (un-cited) provision of Utah law, operates to give PRA the right to arbitrate the claims in this case. The Motion is DENIED .
(Id. at 16-17) (emphasis added).
On August 10, 2018, PRA filed a Notice of Appeal as to the Court's Memorandum Opinion and Order denying its Arbitration Motion. (Doc. 24). On the same day, PRA filed a Motion for Leave To Supplement the Record (the "Motion for Leave") (doc. 23), which the Court denied on August 14, 2018, for failure to comply with the Court's Uniform Initial Order (doc. 7). (Doc. 26).
The day before the Court denied the Motion for Leave, however, on August 13, 2018, PRA filed its Amended Motion for Leave. (Doc. 25). PRA represents that the Amended Motion for Leave was "amended solely to indicate the motion is opposed and to set forth the information required by Section IV, Paragraph B of the Court's Uniform Scheduling Order." (Id. at 1 n.1). In its Amended Motion for Leave, PRA requests that this Court supplement the record with certain facts and with "the declaration with exhibits that is attached hereto Exhibit 1 " (id. at 2, 5), which includes four documents. (See doc. 25-1).
II. STANDARDS
A. This Court's General Authority To Enforce Its Orders
That federal courts are accorded certain inherent powers is well-established. Chambers v. NASCO, Inc. ,
B. Supplementing a Record for Appeal Under Federal Rule of Appellate Procedure 10
Rule 10(a) of the Federal Rules of Appellate Procedure provides that the record on appeal consists of "the original papers and exhibits filed in the district court,"
*1232"the transcript of proceedings, if any," and "a certified copy of the docket entries prepared by the district clerk." FED. R. APP. P. 10(a). This record, however, can be supplemented by a district court under two scenarios. See FED. R. APP. P. 10(e). The first scenario is "[i]f any difference arises about whether the record truly discloses what occurred in the district court." FED. R. APP. P. 10(e)(1). The second scenario is "[i]f anything material to either party is omitted from or misstated in the record by error or accident." FED. R. APP. P. 10(e)(2).
When analyzing a motion under Rule 10(e), district courts must keep in mind that " Rule 10(e) exists to allow the district court to conform the record to what happened, not to what did not." United States v. Smith ,
III. ANALYSIS
A. PRA's Amended Motion for Leave Is Denied for Failure To Comply with the Court's Uniform Initial Order
Section IV.B of the Court's Uniform Initial Order provides as follows:
B. Motions (Other than Dispositive Motions and Motions to Remand)
Prior to filing any motion (other than a dispositive motion or a motion to remand) in this case, moving counsel shall contact the opposing counsel and determine if counsel will oppose the motion. All motions SHALL include, in the caption under the case number, a notation that the motion is either "Opposed" or "Unopposed." In addition to the requirements of Fed. R. Civ. P. 37(a)(1), the first paragraph SHALL briefly summarize the parties' attempts to resolve the issue(s) and set forth areas of agreement and disagreement.
(Doc. 7 at 10) (emphasis by underlining added). Thus, Section IV.B sets forth three requirements that the movant must meet "[p]rior to filing any motion (other than a dispositive motion or a motion to remand)." (Id. ) (emphasis added).
Here, PRA's Amended Motion for Leave is not a dispositive motion or a motion to remand and thus PRA, as the movant, must meet the requirements in Section IV.B. PRA itself recognizes this, as even before the Court denied its Motion for Leave for failure to comply with the Court's Uniform Initial Order, PRA filed its Amended Motion for Leave "solely to indicate the motion is opposed and to set forth the information required by Section IV, Paragraph B of the Court's Uniform *1233Scheduling Order." (Doc. 25 at 1 n.1). Despite PRA's insistence that it has complied with the requirements of Section IV.B, it has not.
Relevant to this portion of the analysis, PRA made two changes in its Amended Motion for Leave. First, in the first paragraph of its Amended Motion for Leave, PRA added two sentences indicating that its counsel had contacted opposing counsel and determined that opposing counsel would oppose the motion: "Prior to filing the Motion for Leave to Supplement the Record (Dkt. No. 23), counsel for PRA contacted counsel for the Plaintiff seeking Plaintiff's consent to the motion. PRA understands that Plaintiff does not consent to the relief sought in the motion." (See id. at 1). Second, PRA added the word "OPPOSED " in the caption under the case number. (See id. ) With these changes, PRA has complied with the first two requirements of Section IV.B. What is still missing, however, is any language that complies with the third requirement of Section IV.B-that the movant, in the first paragraph, "SHALL briefly summarize the parties' attempts to resolve the issue(s) and set forth areas of agreement and disagreement." (Doc. 7 at 10).
B. Alternatively, PRA's Amended Motion for Leave Is Denied Because the Facts and Documents Should Not Be Added To the Record Under Rule 10(e)
The sole authority cited by PRA in its request to supplement the record is Young v. City of Augusta ex rel. DeVaney ,
The Court has analyzed whether the facts and documents PRA seeks to have added to the record fall within either of the two scenarios authorized by Rule 10. The Court concludes that they do not.
PRA's Amended Motion for Leave includes two separate requests to supplement the record. In its first request, PRA states,
*12342. On June 20, 2018, the Court held a hearing on PRA's Motion to Compel Arbitration. At the hearing, PRA's counsel proffered certain facts to the Court regarding the documentation related to the sale of Plaintiff's account at issue. PRA's counsel also proffered a copy of the sale notification letter that was sent to Plaintiff at the time the account at issue was sold by Synchrony Bank to PRA.
3. Although counsel proffered certain facts and documentary evidence to the Court during its hearing, because the hearing was not evidentiary in nature, the document did not become part of the record.
...
5. In order to ensure that the Eleventh Circuit Court of Appeals has a complete record on appeal, PRA respectfully requests leave of Court to supplement the record with documents and testimony underlying the facts that PRA's counsel proffered to the Court on June 20, 2018.
(Doc. 25 at 2, ¶¶ 2, 3, 5) (emphasis added). In its second request, PRA "requests that this Court supplement the record to include the declaration with exhibits that is attached hereto Exhibit 1 ," (id. at 5, ¶ 10), which includes four documents. (See doc. 25-1). Thus, overall, PRA requests that certain facts and four documents be added to the record.
The Court cannot supplement the record with the facts that PRA represents its counsel proffered to the Court or with testimony underlying those facts. First, PRA never identifies any specific facts or testimony to which it is referring, and PRA never identifies when these facts were supposedly "proffered" at the hearing. (See doc. 25). Second, PRA did not present any evidence at the hearing to support these facts, as PRA admits that "the document [about which it 'proffered' facts] did not become part of the record." (Id. at 2, ¶ 3). Third, it is black letter law that "[c]ounsel's statements are not evidence." United States v. Gibson ,
The Court also cannot "supplement" the record with the four documents that PRA
*1235requests be added to the record. The Court will analyze these documents in turn:
1. A business records custodian declaration made by PRA's custodian of records on August 10, 2018 (doc. 25-1 at 2-4) (the "PRA Declaration");
2. The Affidavit of Sale (id. at 6-7);
3. A set of terms and conditions governing the Account (id. at 9-10); and
4. The Sale Notification Letter (id. at 12-13).
1. The PRA Declaration Cannot Be Added To the Record Because It Is New Evidence That Was Not Before the Court
The PRA Declaration is dated August 10, 2018. (Id. at 4). Thus, the PRA Declaration came into existence only after the Court rendered its Memorandum Opinion and Order on PRA's Arbitration Motion. (Compare
2. The Affidavit of Sale Cannot Be Added To the Record Because It Is New Evidence That Was Not Before the Court
For the Affidavit of Sale, PRA represents the following facts:
[D]uring the hearing, the Court inquired as to the language of the Affidavit of Sale of Account, which was referenced in [the Synchrony Declaration] in support of PRA's [Arbitration Motion]. During the hearing, PRA's counsel indicated that it was unsure whether that document existed as a document separate from the Bill of Sale. After the hearing, PRA's counsel obtained a copy of the Affidavit of Sale of Account.
(Doc. 25 at 4, ¶ 7). This representation of facts is very misleading. What took place was not that the Court asked about the language of the Affidavit of Sale and then the attorney for PRA responded that he was unsure if the Affidavit of Sale was a separate document. What actually took place was the following. First, the Court pointed out that Plaintiff had said there was a problem with the Synchrony Declaration because it stated that the Affidavit of Sale was attached even though it was not attached.
*1236("I don't know that there's an affidavit of sale of account that exists, ...."), and (2) that he did know that the bill of sale existed and was attached. (See
Even putting aside this misrepresentation, the Court cannot supplement the record with the Affidavit of Sale. Just like supplementing the record with the PRA Declaration, supplementing the record with the Affidavit of Sale would constitute adding new evidence to the record. PRA did not file into the record a copy of the Affidavit of Sale before the Court rendered its Memorandum Opinion and Order on PRA's Arbitration Motion. Again, because district courts cannot use Rule 10(e) to introduce new evidence into the record, see Smith ,
3. The Terms and Conditions Governing the Account Will Not Be Added To the Record Because It Is Already in the Record
Unlike the first two documents, the set of terms and conditions governing the Account with which PRA requests to supplement the record is not new evidence. Indeed, it is a document with which the Court is familiar. PRA, too, should be familiar with this document. This familiarity, however, is a problem. The reason the Court-and presumably PRA-is familiar with this document is because this set of terms and conditions is actually the Change of Terms that PRA attached to its Brief in support of its Arbitration Motion. (Compare doc. 25-1 at 9-10, with doc. 17-1 at 8-9). This Change of Terms is already included in the record. (Doc. 17-1 at 8-9).
*12374. The Sale Notification Letter Cannot Be Added To the Record Because It Is New Evidence That Was Not Before the Court
The Sale Notification Letter falls at neither end of the two extremes previously discussed. Unlike the PRA Declaration and the Affidavit of Sale, the Sale Notification Letter at least existed at the time of the hearing and PRA's counsel was both sure of its existence and had a copy of it at the hearing. And, unlike the Change of Terms, the Sale Notification Letter is not already in the record. Still, however, PRA again attempts to mislead the Court.
Regarding the Sale Notification Letter, PRA represents that "[a]lthough counsel proffered ... documentary evidence to the Court during its hearing, because the hearing was not evidentiary in nature, the document did not become part of the record." (Doc. 25 at 2, ¶ 3) (emphasis added). It appears that PRA is blaming the Court for the Sale Notification Letter not becoming part of the record. The Court, however, states that the real reason that the Sale Notification Letter did not become part of the record is that PRA never offered it as evidence, much less offered it in an authenticated form. While it is true that PRA briefly mentioned the Sale Notification Letter and provided an unauthenticated copy to the Court at the hearing (see doc. 22 at 55-56), what is far more telling is what PRA did not do: (1) PRA did not treat the Sale Notification Letter as evidence at the hearing; (2) PRA never gave the Court notice at the hearing that the Sale Notification Letter was being discussed as evidence; (3) PRA never gave opposing counsel notice at the hearing that the Sale Notification Letter was being discussed as evidence; (4) PRA never authenticated the Sale Notification Letter at the hearing as required by Federal Rule of Evidence 901,
Moreover, the Court cannot now add the Sale Notification Letter to the record to, as PRA argues, "ensure that the Court of Appeals has a full evidentiary record before it to aid it in making an informed decision." (Doc. 25 at 4, ¶ 9) (emphasis added). If this Court were to add the Sale Notification Letter to the record, the Eleventh Circuit would not have "a full evidentiary record." It would have a record that is larger than the record before this Court. Thus, adding the Sale Notification Letter to the record would constitute inappropriately supplementing the record with new evidence. See Smith ,
Furthermore, another district court case provides persuasive authority for the proposition that the Court cannot use Rule10(e) to supplement the record with the Sale Notification Letter. In Bond v. Marriott International, Inc. , No. 10-1256,
IV. CONCLUSION
In its Amended Motion for Leave, PRA attempts to mislead this Court in order to get certain evidence added to the record for the Eleventh Circuit to consider in the first instance. First, PRA attempts to mislead the Court by stating that its Amended Motion for Leave complies with Section IV.B of the Court's Uniform Initial Order even though it clearly does not. Second, PRA attempts to mislead the Court by requesting that the PRA Declaration be added to the record "to ensure ... a full evidentiary record" (doc. 25 at 4, ¶ 9) even though this document did not even exist until after the Court rendered its Memorandum Opinion and Order on PRA's Arbitration Motion. Third, PRA attempts to mislead the Court by mischaracterizing what was said in open court regarding the Affidavit of Sale. Fourth, PRA attempts to mislead the Court by requesting that the Change of Terms be added to the record even though it is already in the record. Fifth, PRA attempts to mislead the Court by labeling the Sale Notification Letter as "documentary evidence" (id. at 2, ¶ 3) even while it admits that the Sale Notification Letter was never admitted into evidence (or even offered).
In addition to these five specific instances of attempting to mislead the Court, PRA also attempts to mislead the Court in a more general way. PRA states that it "wishes to ensure that the Court of Appeals has a full evidentiary record before it to aid it in making an informed decision." (Id. at 4, ¶ 9). PRA seemingly fails to recognize, however, that this Court, as it should have, denied PRA's Arbitration Motion based on the evidence that was before it. Thus, adding new evidence to the record would be the exact opposite of "ensur[ing] that the Court of Appeals has a full evidentiary record before it." (Id. ) PRA can file another motion to compel arbitration and present to this Court properly authenticated evidence as part of that motion.
Accordingly, PRA's Amended Motion for Leave is DENIED because it fails to comply with the Court's Uniform Initial Order. Alternatively, PRA's Amended Motion for Leave is DENIED because the facts and documents that PRA requests be added to "supplement" the record are new evidence whose inclusion would add to the record on appeal matters that did not occur before this Court.
DONE and ORDERED this the 24th day of August, 2018.
PRA never identifies what rule it relies upon in bringing its Amended Motion for Leave. (See doc. 25). However, the appropriate rule for analysis is Federal Rule of Appellate Procedure 10.
This is binding authority in the Eleventh Circuit. See Bonner v. City of Prichard ,
The Court has also reviewed the rest of PRA's Amended Motion for Leave. This requirement is not met anywhere in the document.
Because the only document PRA references in its first request is the Sale Notification Letter (see doc. 25 at 2, ¶¶ 2, 5), which is also included in its second request (see id. at 5, ¶ 10) (see also doc. 25-1 at 12, 13), the Court will analyze the part of the first request regarding the Sale Notification Letter with the second request. Thus, there are a total of four documents that PRA requests that the Court add to the record.
To be clear, the Court does not agree with PRA's representations as to what was said at the hearing. However, the transcript speaks for itself.
The relevant language from the Synchrony Declaration is as follows: "According to Synchrony's records, Synchrony sold the Account to [PRA] in June 2016. The Account was one of the accounts sold by Synchrony to [PRA] under the Bill of Sale and Affidavit of Sale of Account annexed hereto as Exhibit G ." (Doc. 17-1 at 3, ¶ 14)
Furthermore, PRA does not argue-and could not argue-that the Affidavit of Sale falls under Rule 10(e)(2), which allows district courts to supplement the record for appeal "[i]f anything material to either party is omitted from or misstated in the record by error or accident." Fed. R. App. P. 10(e)(2). For the sake of argument, assuming without deciding that Rule 10(e)(2) would allow a district court to supplement the record for appeal with a document that a party mistakenly did not attach to a brief, this was not the scenario here.
In addition to misleading the Court by requesting that a document that is already in the record be added to the record, PRA is also misleading the Court by representing through the PRA Declaration that the Change of Terms is the "applicable Terms and Conditions governing the Account." (See Doc. 25-1 at 3, ¶ 7). While it is possible that the Change of Terms may have the most up-to-date information that is material to this case, the Change of Terms does not fully govern the Account. As stated in the Synchrony Declaration that PRA attached to its Brief in support of its Arbitration Motion, a subsequent change of terms (doc. 17-1 at 11) occurred that updated the Change of Terms. (Doc. 17-1 at 3, ¶ 8).
PRA would have been required to authenticate the Sale Notification Letter to introduce it as evidence because the Sale Notification Letter is not a self-authenticating document. See Fed. R. Evid. 902.
The Court does not understand why PRA insists upon appellate review of a record it apparently deems inadequate-a conclusion this Court previously reached in its Order-rather than putting adequate evidence before this Court for its determination in the first instance.
Reference
- Full Case Name
- William LESTER v. PORTFOLIO RECOVERY ASSOCIATES, LLC
- Cited By
- 2 cases
- Status
- Published