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Duluth Teachers Credit Union v. Fuller

Superior Court of Maine

June 13, 2017

DULUTH TEACHERS CREDIT UNION, Plaintiff
v.
BENITA K. FULLER and MARK FUGELSO, Defendants

          ORDER ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

          NANCY MIILS JUSTICE

         Before the court is plaintiffs motion for summary judgment. In count I, plaintiff alleges breach of contract against defendant Benita Fuller. In count II, plaintiff alleges breach of contract against defendant Mark Fugelso. The allegations against both defendants arise out of credit card debt allegedly owed to plaintiff. For the following reasons, the motion is denied.

         FACTS

         In 1994, defendant Fugelso applied and was approved for a Visa credit card from plaintiff. (PL's S.M.F. ¶ 1.) Defendant Fugelso failed to make payments when due and plaintiff sent him a right to cure notice. (Id. ¶ 3.) Because defendant Fugelso failed to cure the default, plaintiff instituted this action. (Id. ¶ 4.) Plaintiff claims it accelerated all amounts due under the agreement; defendant Fugelso disputes this allegation, (hi ¶ 4; Opp. S.M.F. ¶ 4.)

         In 1997, defendant Fuller applied and was approved for a Visa credit card from plaintiff. (PL's S.M.F. ¶ 7.) Defendant Fuller failed to make payments when due and plaintiff sent her a right to cure notice. (Id. ¶ 9.) Because defendant Fuller failed to cure the default, plaintiff instituted this action. (Id. ¶ 10.) Plaintiff claims it accelerated all amounts due under the agreement; defendant Fuller disputes this. (Id. ¶ 10; Opp. S.M.F. ¶ 10).

         Both defendants dispute the accuracy of the different "Amount Now Due" figures in the complaint, plaintiffs statement of material facts and supporting affidavit, and the right to cure notice sent to each defendant. (Id. ¶¶ 5, 11; PL's Ex. B, E; PL's Compl. ¶¶ 5, 8.) Defendants argue that the basis for the amounts due are the plaintiffs business records and plaintiff has not laid the proper foundation for consideration of the records. M.R. Evid. 803(6); (Defs.' Br. 2-3.)

         DISCUSSION

         1. Standing

         Plaintiff may maintain a civil proceeding in Maine despite not being registered in Maine. 13-C M.R.S. §§ 1501(1)-(2)(A), (2)(K); 1502(1) (2017); (Defs.' Br. 6.)

         2. ADR

         Defendants argue that plaintiffs motion for summary judgment is premature because alternative dispute resolution required under the standard scheduling order has not yet been completed. (Defs.' Mem. 1-2.) Nothing in the rules provides for a moratorium on filing dispositive motions prior to the completion of alternative dispute resolution. M.R. Civ. P. 16B(c) ("Motions and discovery practice shall proceed in accordance with these rules while an alternative dispute resolution process is being scheduled and held."); M.R. Civ. P. 56. Sanctions are the proper remedy for non-compliance with scheduling orders. M.R. Civ. P. 16; see also Merrifield v. Hadlock, 2009 ME 1, ¶¶ 6-7, 961 A.2d 1107.

         3. Dahlgren-Ballew Affidavit

         Defendants argue that the affidavit of Ms. Dahlgren-Ballew does not provide sufficient foundation to permit consideration of the referenced business records. Business records kept in the course of regularly conducted business may be admissible notwithstanding the hearsay rule if the necessary foundation is established "by the testimony of the custodian or other qualified witness." M.R. Evid. 803(6). "A qualified witness is one who was intimately involved in the daily operation of the [business] and whose testimony showed the firsthand nature of his knowledge." HSBC Mortg. Servs. v. Murphy, 2011 ME 59, ¶ 10, 19 A.3d 815 (quoting Bank of Am., N.A. v. Barr, 2010 ME 124, ¶ 19, 9 A.3d 816) (quotation marks omitted). On a motion for summary judgment, "[s]upporting 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." M.R. Civ. P. 56(e).

         A record of an act, event, condition, opinion, or diagnosis is not excluded by the rule against hearsay, regardless of ...


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