Appellant Jon Askew applied for a credit card through Providian Bank (later acquired by Washington Mutual). Askew used the card and made payments on the card, but later defaulted. The defaulted account was sold to Worldwide Asset Purchasing, which then sold it to Respondent CACH, LLC. Askew’s wife entered into a payment agreement with CACH. Two checks were written to Collect America, of which CACH is a wholly owned subsidiary, through Askew and his wife’s joint checking account. Askew put a stop payment on the second check and made no further payments.
CACH filed suit against Askew for breach of contract, suit on account, and account stated, and Askew countersued for alleged violations of the Fair Debt Collections Practices Act (FDCPA) and Missouri Merchandising Practices Act (MMPA).
The trial court returned a verdict in favor of CACH as to its claims against Askew and in favor of CACH as to Askew’s counterclaim. Askew appealed the trial court’s rulings on all counts other than his MMPA counterclaim.
The Missouri Appellate Court for the Eastern District of Missouri affirmed the trial court’s verdict in favor of CACH. The Appellate Court held that documents of Providian and Washington Mutual were admissible through a representative of CACH, LLC under the business records exception to the hearsay rule. CACH’s representative had gone through training with Providian/Washington Mutual and knew how the records were prepared and kept thereby providing sufficient testimony on her familiarity with the documents to sponsor them. The records were transferred to and maintained by CACH in the ordinary and normal course of business. The Court distinguished this case from Asset Acceptance v. Lodge, 325 S.W.3d 525 (Mo.App.E.D. 2010) where the debt buyer’s representative only had familiarity with how the documents were prepared in the “industry” and not at the specific institutions which created the documents.
The Court further held that CACH’s standing could be established through witness testimony that it is the owner of the debt. Standing was also shown through the bill of sale, which is the document that actually transfers the debt. The Court held that it is not necessary for a debt buyer to introduce into evidence the purchase agreement to prove its standing to sue.
The Court found that Plaintiff proved the elements of account stated. The partial payment to Collect America constituted an implied promise to pay the balance. An agency relationship between Defendant and his wife was implied because Askew cloaked his wife with the apparent authority to act on his behalf.
The Court further found that Plaintiff proved the elements of breach of contract. The Court held that the credit card application was a request by Askew for an offer to extend credit to him. The card agreement, mailed to Askew, was an offer that was accepted through his use of the card. Askew’s failure to cancel the account after notice of any change in terms constituted acceptance of the new terms.
The Court further held that Askew failed to establish that CACH violated any provision of the FDCPA and was thus not entitled to recover on the counterclaim.
Karen Jones and Christopher Durso represented the client, CACH, LLC.