We think the Court of Appeals is probably correct to imply that this plaintiff was planning on default judgment and, when that didn’t happen, didn’t quite know what to do. The court takes the opportunity to say some things about how summary judgment works.

Wells Fargo sued to collect a credit-card debt. It attached to the Complaint the card agreement and the last bill; collections lawyers tend to do things that way, more because that’s the way these things are traditionally done than because they’ve thought about why they’re doing it. But defendants answered and disputed the documents. Wells Fargo moved for summary judgment based on an affidavit by a Wells Fargo paralegal saying basically that he was the custodian of business records, he had reviewed them, and they say that the defendants owed the money. The affidavit didn’t include the documents. Defendants’ Response argued that it was hearsay. The Reply, in addition to presenting – without further affidavit – some business records, argued that the defendants had “failed to satisfy their burden to . . . disclose or put forth . . . evidence to defeat summary judgment.”

The trial court granted the motion. Defendants moved for reconsideration, arguing that there was a question of fact about the applicability of the documents attached to the Complaint (which may have thrown the trial court off the track a bit since this wasn’t really the dispositive issue). The court ordered Wells Fargo to respond; the response tried to explain why the documents had been presented – which evidently it hadn’t done before. The trial court denied the motion for reconsideration.

If you can’t anticipate that it gets reversed then you need to study this opinion and learn its morals.

Moral #1 is that “it is the party moving for summary judgment who bears the ‘burden of persuasion,” which burden “never shifts to the non-moving party.” So, “the question presented by Wells Fargo’s motion . . . was not whether the [defendants] had succeeded in
presenting genuine disputes of material fact –- it was whether Wells Fargo had presented sufficient undisputed admissible evidence to establish its entitlement to judgment.”

Moral #2: “The purpose of a custodian’s affidavit is to authenticate evidence.” We don’t know what’s hard about that but the mistake here – trying to squeeze substantive evidence as well as authentication into a custodian’s affidavit – is not uncommon. “Conclusory affidavits . . . may be sufficient in the default context” but not when you have to prove a disputed case.

Moral #3: Be careful in preparing the custodian’s affidavit. This one didn’t attach the records (“such an affidavit is of little value when it does not attach the evidence at issue”) and fouled up the business-records language by not describing how they were prepared and kept. You need to include all the 803(6) stuff.

Moral #4: Your Reply is too late. ‘It was improper to introduce new evidence with the Reply memorandum.”

None of this is new. But too many people need to be reminded of it.

(link to opinion)