FIA Card Services, N.A. v. Jaques, No. S1074-09 CnC (Toor, J., Nov. 8, 2010) [The text of this Vermont trial court opinion is un official. It has been reformatted from the origina l. The accuracy of the text and the accompanying data included in the Vermont trial cou rt opinion database is not guaranteed.] V ERMONT S UPERIOR C OURT C HITTENDEN U NIT C IVIL D IVISION

│ FIA CARD SERVICES, N.A. │ Plaintiff │ │

v. │ Docket No. S1074-09 CnC │ DAVID A. JAQUES │ Defendant │ │

RULING ON MOTION FOR SUMMARY JUDGMENT

This is a collection case in connection with a clai med debt on a credit card. Plaintiff has moved for summary judgment. Plaintiff is represented by John Balkunas, Jr., Esq; Defendant is pro se. The Motion and Response Plaintiff has submitted with its legal memorandum t he following: a number of

documents that are attached to the memorandum but n ot authenticated by any affidavit of a records custodian; a Statement of Uncontested Fac ts that cites not a single supporting document or affidavit; an Affidavit of Amounts Due signed by the lawyer; and an Affidavit of Account signed by someone identifying herself as an “agent for FIA CARD SERVICES, N.A.” but without explaining her title or employment status. Defendant responds to the motion with an affidavit denying that he has ever contracted with FIA, pointing out that nothing in t he records submitted by Plaintiff shows any contract with FIA, and asserting that the compl aint and the motion refer to completely different account numbers in any case.2 Conclusions of Law The motion for summary judgment does not comply wit h Rule 56 for several reasons. First, the rule requires that the statemen ts of material facts filed by the moving party “contain specific citations to the record.” V .R.C.P. 56(c)(2). The statement here has not a single such citation. Second, the rule requires that affidavits submitted with the motion “shall be made on personal knowledge, shall set forth such facts a s would be admissible in evidence, and shall show affirmatively that the affiant is compet ent to testify to the matters stated

therein.” Id . § (e). While the affidavit of the lawyer is appr opriate with regard to its recitation of costs incurred for filing and service and the like, the affidavit of the “agent”

is insufficient to establish the facts of the accou nt. The agent is not identified as an employee or a records custodian or other person act ually familiar with the company’s

files. Her affidavit asserts that “the note attache d hereto is true and correct,” yet no note is attached. It fails to state that any contract exist s between FIA and defendant. Likewise, although affidavits are not mandatory wit h a motion for summary judgment, if documents are being submitted as evide nce for the court to consider with the motion, they must be identified and authenticated b y a witness with knowledge of them, not merely attached to the legal memorandum as if t hey are somehow per se admissible in evidence. Until they are exhibits to such an aff idavit, they are not “in the record” in the sense intended by the rule:

Supporting materials designed to establish issues o f fact in a summary judgment proceeding must be established through one of the vehicles designed to ensure reli ability and veracity -- depositions, answers to interrogato ries, admissions and affidavits. When a party seeks to of fer3 evidence through other exhibits, they must be ident ified by affidavit or otherwise made admissible in evidence. Friedel v. City of Madison , 832 F. 2d 965, 970 (7 th Cir. 1987)(internal quotation omitted). “To be admissible, documents must be authenticated by and attached to an affidavit that meets the requirements of Rule 56(e) and the affian t must be a person through whom the exhibits could be admitted into evidence.” Wright & Miller, 10A Federal Practice & Procedure Civ. § 2722 (3d ed.). The documents attac hed to the legal memorandum are not identified or authenticated by an affidavit fro m anyone. For all of these reasons, the motion is denied. In addition, however, Defendant has raised disputed issues of material fact with regard to whether he ever contracted with FIA at all, and whether the account sued upon is the sa me one for which judgment is sought. For this reason as well, the motion is denied.

Order The plaintiff’s motion for summary judgment is deni ed. The case will be

scheduled for a two hour trial.

Dated at Burlington, Vermont this 3rd day of Novemb er, 2010.

_____________________________ Helen M. Toor Superior Court Judge