Arizona Court of Appeals Division One Holds that a Plaintiff Cannot Shift the Burden of Proof to the Defendant by Filing a Motion for Summary Judgment.

In 2010, Wells Fargo filed a complaint against Cola and Lisa Allen alleging that the Allens had defaulted on payment obligations they allegedly incurred using a Wells Fargo credit card.  The Allens filed an answer denying the allegations and, shortly thereafter, Wells Fargo moved for summary judgment.  With its supporting statement of facts, Wells Fargo included a Consumer Credit Card Customer Agreement and Disclosure Statement dated August 2010 (the “August 2010 Agreement”) and a computer-generated credit card statement indicating that the Statement Billing Period ran from November 17, 2010, to November 30, 2010 (the “November 2010 Statement”).  The supporting statement of facts also included the affidavit of a Wells Fargo paralegal, who described himself as a custodian of Wells Fargo’s business records.  The affidavit averred that the Allens had defaulted on their obligations and stated the amount claimed to be owed, without mentioning or explaining the August 2010 Agreement or the November 2010 Statement.  The motion was not supported by any other evidence.

The Allens filed a response to the motion for summary judgment and a “statement of material facts in dispute.”  In their statement, the Allens included an affidavit in which they asserted that the August 2010 Agreement was not binding on them and that the November 2010 Statement was hearsay.  Wells Fargo replied, contending that the Allens had failed to satisfy their burden to defeat the entry of summary judgment.  The superior court agreed and granted Wells Fargo’s motion for summary judgment.  The Allens appealed. 

On appeal, the Arizona Court of Appeals concluded that the superior court erred in granting Wells Fargo’s motion because Wells Fargo had failed to establish its entitlement to judgment as a matter of law.  Under Arizona Rule of Civil Procedure 56(c), it is the party moving for summary judgment who bears the “burden of persuasion.”  To carry its burden of persuasion, a plaintiff who seeks summary judgment must submit undisputed admissible evidence that would compel any reasonable juror to find in its favor on every element of its claim.  In this case, the only evidence Wells Fargo submitted in support of its motion for summary judgment was a paralegal’s affidavit, the August 2010 Agreement, and the November 2010 Statement.  Although the paralegal made a general avowal that he is the custodian of records and that he personally reviewed records that established the amount of the Allens’ indebtedness, those records were neither described nor attached.  Nor was there anything in the affidavit to provide a reviewing court with the means to evaluate the accuracy of the paralegal’s calculation of the amount claimed to be due.  Consequently, the affidavit was insufficient to support the motion for summary judgment.  Because Wells Fargo failed to demonstrate by admissible evidence that it was entitled to judgment as a matter of law, the superior court had erred in granting Wells Fargo’s motion for summary judgment.  The Court of Appeals therefore reversed and remanded.

Judge Swann authored the opinion; Judges Gemmill and Gould concurred.