2018 Mass. App. Div. 174

October 13, 2017 - November 21, 2018

Appellate Division Western District

Court Below: District Court, Westborough Division

Present: Hadley, P.J., Poehler & Stark, JJ.

Grace M. Calamita and Karen J. Wisniewski for the plaintiff.

Yue Fang, pro se.

HADLEY, P.J. The plaintiff, Discover Bank, is a state-chartered bank incorporated under the laws of Delaware. The defendant, Yue Fang, is an individual who resides in Massachusetts. The plaintiff brought this action alleging that the defendant had become indebted to the plaintiff in the sum of $14,196.77 for charges and/or cash advances incurred on a credit account. The defendant filed an answer stating that he was without sufficient knowledge or information to form a belief as to the alleged debt and that based on his lack of information or belief, he denied the alleged debt.

The plaintiff filed a motion for summary judgment. The plaintiff indicated that its theory of liability was an account stated, and in support of its motion for summary judgment, it filed an affidavit from a litigation support specialist for Discover Products, Inc. She stated that the company was a servicing affiliate of Discover Bank and that in her capacity as an employee of Discover Products, Inc., she was "familiar with the facts" and that "to the best of [her] knowledge," the defendant was indebted to the plaintiff in the amount of $14,196.77. Her affidavit included a statement to the effect that on or before April 30, 2012, the defendant became indebted to the plaintiff in that amount according to the original books and/or computerized records of entry for an account ending in the number 1133. Her affidavit also stated that the defendant had paid nothing on that debt. The affidavit further stated that according to the records maintained by Discover Products, Inc., statements were either provided to the defendant electronically or mailed to the defendant at an address the company kept on file. In addition, the affidavit stated that the records maintained by Discover Products, Inc. listed the correct home address for the defendant. Finally, her affidavit stated that it was "[s]ubscribed and sworn" before an Ohio notary public.

The record before us in this expedited appeal under Dist./Mun. Cts. R. A. D. A. 8A also includes four pages of what appear to be credit card statements, although it appears that the plaintiff's motion for summary judgment was accompanied by eighty-eight pages of what were purportedly statements from Discover Bank bearing the names of the defendant and another person. There was, however, no specific reference to any of these documents in the affidavit submitted by the plaintiff.

The self-represented defendant filed a written memorandum and a sworn affidavit in opposition to the plaintiff's motion for summary judgment. In his affidavit, he stated that the allegation of a debt in the plaintiff's affidavit was not supported "by any legal document." He stated that "no copy of any legal document, either in written

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or in electronic form," had ever been presented to him proving he had applied for a Discover Bank credit card account ending in 1133 or stating when and where he received, activated, and used the account. He went on to state that "[b]ase [sic] on the above fact, the Defendant denies that he is the cardholder of this credit account ending in 1133." He also stated that the plaintiff's affidavit failed to show that monthly billing statements were actually received by him at the time they were generated. He stated, "Therefore, I dispute this statement."

The defendant additionally stated that the documents the plaintiff filed did not support its claim that he opened an account with the plaintiff on October 4, 1990. More specifically, the defendant stated, "I found no document provide [sic] any legal basis for that statement. So I dispute this statement." Finally, in his affidavit, the defendant disputed the plaintiff's allegation that he made a payment on the subject account on August 14, 2011 in the amount of $250.00 (apparently, a transaction that was reflected somewhere in the eighty-eight pages of documents offered by the plaintiff). In this regard, the defendant stated in his affidavit, "[T]here is no proof that demonstrated the Defendant made such a payment personally and/or through his personal bank account. Again I dispute this statement."

Following a hearing, a District Court judge allowed the plaintiff's motion for summary judgment. Three days later, judgment entered in favor of the plaintiff in the amount of $14,196.77, plus court costs. Ten days later, the defendant filed three motions, including a motion to strike the affidavit filed in support of the plaintiff's motion for summary judgment. In that motion, the defendant noted that the affidavit included a representation from a notary that the statement was a "sworn" statement, but did not include a representation that the affiant made her statement "under penalties of perjury." The defendant also complained that the individual who signed the affidavit represented that the facts included in the affidavit were made "to the best of [her] knowledge," rather than on her "personal knowledge."

The defendant also filed a motion to strike the records that had been offered in support of the motion for summary judgment. He asserted that these purported account statements constituted inadmissible hearsay because they were not referenced in the plaintiff's affidavit, and were merely attached to the motion as an exhibit.

Finally, citing Mass. R. Civ. P. 59(e), the defendant filed a motion to alter or amend the judgment in favor of the plaintiff. In that motion, he repeated the arguments made in the first two motions, and argued that the plaintiff had failed to establish the existence of an account stated, and asserted that based on his own affidavit, there was a genuine issue of material fact in dispute.

The judge who had allowed the motion for summary judgment heard these motions and denied them. We have not been provided with a transcript of any of these hearings, and the motion judge did not provide a statement of his reasons for denying the motions. The defendant, however, contends there are material facts in dispute and the plaintiff's motion should have been reconsidered; the affidavit and exhibits should have been stricken; and the motion for summary judgment should have been denied. For its part, the plaintiff asserts that there was no basis for striking the affidavit or the billing records because the plaintiff's affidavit met the requirements of Mass. R. Civ. P. 56 and because the records it produced were bank records that are admissible under G.L. c. 233, § 77. It argues that the affidavit and the

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bank records establish that the plaintiff is entitled to judgment on an account stated as a matter of law.

With regard to the defendant's own affidavit, we note that affidavits in opposition to a motion for summary judgment may not be based on general denials of the opponent's evidence. They must be based on specific factual statements. The defendant's vague statements to the effect that he denies the existence of the account, any alleged payments on the account, and the receipt of mailings on the account because he has not been provided with "legal documents" in the context of this litigation do not suffice to create genuine questions of material fact. The motion judge properly could have disregarded these vague, nonspecific denials when he considered the plaintiff's motion.

Concerning the attestation in the affidavit offered in support of the plaintiff's motion for summary judgment, "[a]n affidavit is a statement in writing sworn before an officer authorized to administer an oath." Murphy, petitioner, 321 Mass. 206, 213 (1947). In order to comply with Mass. R. Civ. P. 56, an affiant must either verify his or her affidavit by oath before a notary public or some other person authorized to take oaths, or sign the affidavit under the penalties of perjury. Although a statement containing a written declaration that the statement is "made under the penalties of perjury" satisfies the requirements for an affidavit, these exact words are not required. In this case, the plaintiff's affidavit states that it was sworn before an Ohio notary public. See Ohio Rev. Code Ann. § 147.07. Therefore, the attestation was sufficient, and the defendant's position on this issue is without merit.

With regard to the substance of the affidavit, Mass. R. Civ. P. 56(e) provides:

"Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith . . . ."

An affidavit founded upon belief or "information and belief," rather than upon the affiant's personal knowledge, is not sufficient. Here, the plaintiff's affiant represented that in her capacity as an employee of the company that services the plaintiff's accounts, she is "familiar with the facts" and that "to the best of [her] knowledge," the defendant is indebted to the plaintiff as alleged. She then went on to state that according to records maintained by her employer, billing statements were sent to the defendant's address. We find these representations made by someone who purports to be familiar with the facts, as opposed to having personal knowledge of them, to be analogous to statements made on "information and belief," which simply do not meet the requirements of Rule 56.

A motion to strike is the proper device for raising such an insufficiency in an affidavit. At no time prior to the hearing on the plaintiff's motion for summary judgment, however, did the defendant move to strike the plaintiff's affidavit. There is, moreover, nothing in the record before us to indicate that the defendant objected to the affidavit in the course of oral argument on the summary judgment motion. Accordingly, the motion judge, in his discretion, could have overlooked these

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unobjected-to deficiencies and properly considered the affidavit. Jackson v. Action for Boston Community Dev., Inc., 403 Mass. 8, 12 n.2 (1988); Madsen v. Erwin, 395 Mass. 715, 721 (1985).

With regard to the purported credit card statements that were attached to the plaintiff's motion for summary judgment, they were not "sworn or certified" documents, and they were not referred to in the sworn affidavit the plaintiff supplied. In short, the plaintiff did not establish a foundation for the admissibility of these records, and the defendant is correct in his assertion that they constituted inadmissible hearsay. Accordingly, they were vulnerable to a motion to strike. Once again, the defendant made no objection to these documents prior to the hearing on the motion for summary judgment. Had the defendant failed to take any further action before the motion judge, an argument could be made that it would not have been reversible error for the judge to consider these documents at the initial hearing on the motion for summary judgment. See Stetson v. Board of Selectmen of Carlisle, 369 Mass. 755, 763 n.12 (1976); Stepan Chem. Co. v. Town of Wilmington, 8 Mass. App. Ct. 880 (1979).

The defendant, however, filed a timely motion pursuant to Mass. R. Civ. P. 59(e). In the context of a motion for summary judgment, this is treated as an application for rehearing, reconsideration, or vacation. See Piedra v. Mercy Hosp., Inc., 39 Mass. App. Ct. 184, 187 n.3 (1995). Through that motion, the defendant correctly pointed out that the court's decision to grant the plaintiff summary judgment was based on facts, of which the plaintiff's affiant had no personal knowledge, and on documents that contained inadmissible hearsay. There is a strong policy in favor of matters being decided on their merits and pursuant to Rule 56, it is the moving party's burden to show that it is entitled to judgment based on testimony and evidence that would be admissible at trial. For these reasons, the defendant's Rule 59(e) motion should have been allowed and the order for the entry of summary judgment should have been vacated.

Accordingly, the summary judgment entered for the plaintiff is vacated, the allowance of its Mass. R. Civ. P. 56 motion is reversed, and the case is returned to the trial court for further proceedings.

So ordered.