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Klinedinst v. CACH, LLC

Superior Court of Delaware, Sussex

January 10, 2014

CACH, LLC, as assignee of MBNA Bank, N.A., @830934, Appellee.

SUBMITTED: October 11, 2013

Elwood T. Eveland, Jr., Esquire, attorney for Appellant

Patrick Scanlon, Esquire.



This is an appeal which James R. Klinedinst ("defendant") has filed from a decision of the Court of Common Pleas ("CCP") granting summary judgment in favor of CACH, LLC, as assignee of MBNA Bank, N.A.@830934. ("plaintiff"). This is my decision reversing CCP's decision and remanding the matter for further proceedings consistent with this decision.

The facts and procedural history appear below. In order to make this decision more concise, I point out, within this recitation of facts and procedural history, the problematical aspects of the case below and I make rulings regarding various issues. These problem areas and rulings are bolded for ease of reference.

Central to the decision in this matter is the legal premise that a plaintiff with an assignment has the burden to show the assignment in order to establish it is the proper party to bring the action.[1]

On January 19, 2012, CACH, LLC filed a complaint against defendant in CCP. The complaint alleged the following. Defendant is in default for non-payment on an account which CACH, LLC owned; the original creditor and proof of ownership of the account appears in the attachment to the complaint; and defendant owes plaintiff $31, 988.30 in principal, plus interest. The attachment consists of a "Chain of Title Chart" and an account statement. The "Chain of Title Chart" purportedly establishes the title from MBNA to CACH, LCC. Attached to the "Chain of Title Chart" is Exhibit A, which is an Affidavit dated October 18, 2010, of Dennis Maradei ("Maradei's Affidavit"). Maradei states as follows:

1. That Affiant is employed by Bank of America, NA successor in interest to Bank of America, in the position of Bank Officer and is duly authorized to make this affidavit.
2. That FIA Card Services is a wholly owned subsidiary of Bank of America Corporation and is successor in interest to MBNA Bank NA, Fleet Bank, NA, and Bank of America Card Services.
3. That the original contract in this matter has been destroyed, or is no longer accessible to Affiant and that this Affidavit is to be treated as the original document for all purposes. If any originals are discovered, they will be submitted to the court for review.
4. That the statements made in this Affidavit are based on the computerized and hard copy books and records of Bank of America, which are maintained in the ordinary course of business, with the entries in them having been made at or near the time of the transaction record.
5. That account number [ending in 4118] also known as [account ending in 7551] also known as [... 0268] was opened on 8/26/1996 by JAMES KLINEDINST whose social security number is [...].
6. That there is due and payable from JAMES KLINEDINST as of 1/3/2010 the sum of $31988.3 [sic] withstanding legally chargeable post charge-off interest, pursuant to the terms of the card member agreement with Bank of America.
7. That said agreement and account was, on 1/13/2010 sold, transferred and set over unto CACH, LLC, with full authority to do and perform all acts necessary for collection, settlement, adjustment, compromise or satisfaction of the said claim.
8. That as a result of the sale of said account, CACH, LLC, and/or its authorized agent, has complete authority to settle, adjust, compromise and satisfy same that Bank of America had no further interest in this account for any purpose.
9. That to the best of Affiant's knowledge, information and belief, there were no uncredited payments, just counterclaims or offsets against said debt when sold.

The affidavit mentions Bank of America; Bank of America, NA; MBNA Bank NA; Fleet Bank, NA; Bank of America Card Services; and FIA Card Services. In doing so, it creates confusion about what entity actually owned the account and/or whether several entities owned the account over the years. Additionally, the affidavit does not clearly establish what entity transferred the account to CACH, LLC. Furthermore, the affidavit states only that Maradei is a Bank Officer of Bank of America, NA. He does not in any way establish that he is a custodian of the records or that he is otherwise a "qualified witness"[2]who may provide information on the account in question. Thus, this affidavit lacks foundational requirements to make it admissible as a hearsay exception pursuant to Delaware Rules of Evidence, Rule 803(6).[3] Plaintiff is unable to rely upon it to establish its case for summary judgment.

Also attached to the complaint is an account statement for account number ending in 7551 dated December 2009. That statement proclaims: "For the complete terms and conditions of your account, consult your Credit Card Agreement. FIA Card Services is a tradename of FIA Card Services, N.A. This account is issued and administered by FIA Card Services, N.A."

CCP's Administrative Directive No. 2011-1, in effect at the time the complaint in this matter was filed, lists requirements which must be met where an assignee of a credit card account is the plaintiff. I set forth the requirements below ...

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