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REQUIREMENTS FOR AN EFFECTIVE ASSIGNMENT. PART II


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GEORGIA COURT CITATIONS:

THESE CITATIONS CAN BE USED IN ANY COURT OF COMPETENT JURISDICTION

WIRTH v. CACH, LLC. 300 Ga. App. 488, 685 S.E.2d 433 (2009)

WIRTH v. CACH, LLC. -- October 15, 2009

William R. Carlisle, Sugar Hill, for appellant.Fred J. Hanna, James T. Freaney, for appellee.In this action on an open account, we granted Donald Wirth's application for an interlocutory appeal to review whether the trial court erred in granting summary judgment in favor of Cach, LLC (³Cach´) omits claim to recover past due sums under a credit card account agreement Wirth allegedly entered intowith Providian National Bank (³Providian´). Wirth appeals, arguing that Cach was not entitled to summary judgment because the record failed to include or reference a written assignment proving that Cach was the real party in interest, as assignee of Providian. Finding that

Cach failed to show that it was entitled to file suit to recover the outstanding debt against Wirth, we reverse. ³Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.

OCGA § 9-11-56©.´ (Citation and punctuation omitted.)Rabun v. McCoy, 273 Ga.App. 311, 615 S.E.2d 131 (2005). ³We review the grant or denial of summary judgment de novo, construing the evidence in favor of the non movant.´ Id.So viewed, the evidence shows that Cach, alleging it was the assignee of Providian, brought this suit to collect the principal amount of $2,310.72 owed on a credit card account agreement allegedly entered into by Wirth and Providian. Attached to the complaint was a standard cardmember agreement entitled ³PROVIDIAN NATIONAL BANK VISA AND MASTERCARD ACCOUNT AGREEMENT.´ Wirth filed an answer to the complaint, in which he asserted that Cach was not the real party in interest

(OCGA §9-11-17(a)) and also filed a counterclaim under the Fair Debt Collection Practices Act. 15 USCS §1692e.

Thereafter, Cach filed a motion for summary judgment, arguing that it was entitled to judgment as a matter of law on its complaint. Attached to its motion was an affidavit from Tiffany Corrales, who identified herself as an authorized agent of Cach and business records custodian of its credit card accounts, including that belonging to Wirth. Corrales stated that Providian ³assigned all rights and interests of [Wirth's account] to [Cach].´ Cach also moved for partial summary judgment on Wirth's counterclaim, arguing that Wirth failed to prove any genuine issue of fact to support such claim. Finding ³no genuine issues of material fact and [that] Cach is entitled to judgment as a matter of law,´ the trial court granted Cach's motion for summary judgment and entered judgment in its favor and against Wirth in the principal sum of $2,310.72, plus interest,attorney fees and court costs. The trial court also granted Cach's motion for partial summary judgment and dismissed Wirth's counterclaim with prejudice.Wirth argues that the trial court's order was not supported by any evidence of a written assignment to prove that Cach was the real party in interest. We agree.

³THE DOCTRINE OF PRIVITY OF CONTRACT requires that only parties to a contract may bring suit to enforce it. [Cit.]´ Scott v. Cushman & Wakefield of Ga., Inc., 249 Ga.App. 264, 265, 547 S.E.2d 794 (2001);

OCGA §

9-2-20(a). ³A party may assign to another a contractual right to collect payment, including the right to sue to enforce the right. But an assignment must be in writing in order for the contractual right to be enforceable by the assignee.´ (Punctuation and footnote omitted.) Nyankojov. North Star Capital Acquisition, 298 Ga.App. 6, 8, 679 S.E.2d 57 (2009). Further, the writing ³must identify the assignor and assignee.´ (Footnote omitted.) Id. To prevail on its motion for summary judgment, Cach, as movant, has the burden of ³establishing the non-existence of any genuine issue of fact,´ including Wirth's assertion that Cach is not the real party in interest, and ³all doubts are to be resolved against [Cach].´ (Citation and punctuation omitted.) Sawgrass Builders v. Key, 212 Ga.App.138(1), 441 S.E.2d 99 (1994).Here, Cach relies on the Corrales affidavit to show that Providian assigned to it ³all rights andi nterests [to Wirth's account].´ The affidavit, however, fails to refer to or attach any written agreements which could complete the chain of assignment from Providian to Cach. Further, the account invoices upon which Corrales relies reflect that Wirth's account was with Washington MutuaL

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The only scary thing about that ruling is it is from an appeal court. That means some court actually let in hearsay and no documentation, and not only that, but granted summary judgement based on it. :shock:

I was getting ready to ask you why your posting what it is pretty much common sense, we all know, and is so obvious when it comes to hearsay and including documentation. Then I saw it was an appeal court decision and I was floored. An appeal court had to rule on this? Really? :private:

Wow, what's next, an appeal court having to throw out a confession that was given when somebody requested a lawyer and none was provided, and the Defendant having to cite Miranda V Arizona to the appeal court? :shock:

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The only scary thing about that ruling is it is from an appeal court. That means some court actually let in hearsay and no documentation, and not only that, but granted summary judgement based on it. :shock:

I was getting ready to ask you why your posting what it is pretty much common sense, we all know, and is so obvious when it comes to hearsay and including documentation. Then I saw it was an appeal court decision and I was floored. An appeal court had to rule on this? Really? :private:

Wow, what's next, an appeal court having to throw out a confession that was given when somebody requested a lawyer and none was provided, and the Defendant having to cite Miranda V Arizona to the appeal court? :shock:

I'm posting this for the benefit of all who may not be familiar of the ''common sense" approach. We have to remember that we have multitudes of people coming in here who don't have a clue on defending their position. We should all be willing to assist in any way we can, or at least that's my personal goal.

and let me add...thank goodness for appeals courts..as it is apparent that perhaps some lower courts don't use the commons sense approach, and are just rubber stamping summary judgements ! The appeals court cases cited just might cause any lower court to think twice about rubber stamping.

...and I disagree ...not everyone who comes in here is aware or knowledgeable of what you say is" pretty much common sense, we all know", and is so obvious when it comes to hearsay and including documentation." Obviously the lower courts had to be informed on what hearsay and documentation is...come now the appeals court decisions.

Those of us who can should be willing to remember when "we" were the least sophisticated consumer" and share our knowledge and experience with all in need. The spirit of 'giving" should be 365 days per year !

Merry Christmas !

Edited by Informed
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