Professional Collection Consultants v. Lauron 2/16/17, 6DCA
On summary judgment, the moving party has to connect the evidentiary dots to win. Here, bad credit card debt was assigned to debt collector PCC. PCC filed suit against debtor in California. Debtor had two credit cards accounts, and at least one was subject to a cardholder agreement with a Delaware choice of law provision. Delaware as a three year statute of limitations for breach of contract; California has a four year statute. Debtor cross-complained under federal and state fair debt collection laws alleging that PCC was attempting to collect a time-barred debt. Assuming both credit cards accounts were subject to Delaware law, the trial court granted debtor’s motion for summary judgment on PCC’s complaint, and then granted summary judgment on her claim that PCC had violated federal and state debt collection laws. PCC appealed. Held: Reversed.
Debtor failed to do three things. With respect to the one of the two credit cards, she failed to present evidence that it was subject to a cardholder agreement with a Delaware choice of law provision. Second, with respect to both credit cards, she failed to show when each cause of action accrued. A cause of action for breach of contract accrues on the failure of the promisor to do the thing contracted for at the time and in the manner contracted. The statute of limitations is a defense. Therefore, debtor had the burden to show when she stopped paying the credit cards according to the terms and conditions of the cardholder agreement. Presumably this could have been done simply by submitting a billing statement, and perhaps she did submit such evidence to the trial court. But in her appellate brief she failed to cite to the record showing that. As the court noted, it is not the appellate court’s responsibility to wade through the record and find the a party’s evidentiary cites for them.
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