Hutto v. CACV OF COLORADO, LLC, Ga: Court of Appeals (2011) Ponder v. CACV of Colorado, LLC, 289 Ga.App. 858, 859, 658 S.E.2d 469 (2008) Yates v. CACV of Colorado, LLC, 303 Ga. App. 425, 431 (1) (693 SE2d 629) (2010). WIRTH v. CACH, LLC. 300 Ga. App. 488, 685 S.E.2d 433 (2009) Nyankojo v. North Star Capital Acquisition, 298 Ga. App. 6, 10 (679 SE2d 57) (2009). Boyd v. Calvary Portfolio Svcs., 285 Ga.App. 390, 391(1), 646 S.E.2d 496 (2007).

HUTTO, v. CACV OF COLORADO, LLC. A10A2068. Court of Appeals of Georgia. Decided: March 16, 2011. DOYLE, Judge. CACV of Colorado, LLC, filed suit against Tammy E. Hutto to collect past due sums under the terms of a Mastercard/Visa credit card agreement. The trial court granted summary judgment to CACV, and Hutto appeals, arguing that CACV (1) failed to establish a valid legal contract between Hutto and CACV's predecessor; and (2) failed to demonstrate that CACV had standing to sue Hutto as an assignee of any debt she owed. We reverse, for reasons that follow. Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. A defendant moving for summary judgment may put forth evidence to show that there is no issue of fact as to one or more elements of the plaintiff's causes of action or demonstrate that the record lacks sufficient evidence to support one or more of the plaintiff's causes of action. We review the grant or denial of summary judgment de novo, construing the evidence in favor of the nonmovant.[1] So viewed, the record shows that on August 8, 2005, CACV, alleging that it was the successor-ininterest of Chase Manhattan Bank, filed suit to collect the principal amount of $29,031.83 (plus accrued interest and additional pre-judgment interest) owed on a credit card agreement allegedly entered into by Hutto and Chase Manhattan Bank. Attached to the complaint was a standard cardholder agreement entitled "CHASE VISA/MasterCard CREDIT AGREEMENT," which stated that the term "we" referenced in the agreement referred to "The Chase Manhattan Bank (USA)"; Hutto's name did not appear in the agreement. Hutto filed an answer to the complaint, in which she denied the alleged debt and requested validation thereof under the Fair Debt Collection Practices Act. On December 22, 2005, CACV filed a motion for summary judgment, arguing that it was entitled to judgment as a matter of law. Attached to the motion was an affidavit from John Becker, who identified himself as an agent for CACV with personal knowledge of the matters stated therein. Becker averred that he had reviewed CACV records, which indicated that Hutto owed $29,031.83, plus accrued

interest in the amount of $11,832.29, under the terms of a credit card agreement with Chase Manhattan Bank. Also attached to the motion was a document entitled "Affidavit of Sale," which was signed by Robert Watson, an assistant vice president for JP Morgan Chase & Co. Watson averred that Hutto had a credit card account with JP Morgan Chase & Co., account [. . . 5639]. The account was sold and transferred to CACV of Colorado, LLC on 7/30/2003. . . . At the time of the sale to CACV of Colorado, LLC, the amount due on the account pursuant to the terms of the cardholder agreement between JP Morgan Chase & Co. and TAMMY E. HUTTO was $29,031.83. . . . Your deponent acknowledges that in [sic] making this affidavit that CACV of Colorado, LLC is now the owner of said account, and is authorized to collect, settle, adjust, compromise[,] and satisfy the same and that JP Morgan Chase & Co. has no further interest in said account for any purpose.[2] On March 27, 2006, the trial court granted summary judgment to CACV in the amount sought, plus attorney fees in the amount of $3,741.08. Thereafter, on December 28, 2009, Hutto filed a motion to set aside the judgment, alleging that she never received a copy of the motion for summary judgment, nor did she receive a copy of the judgment.[3] Attached to the motion were affidavits from Hutto, her husband, and her son, averring that they never received a copy of the summary judgment motion, discovery, or the judgment. On April 29, 2010, following a hearing, the trial court entered an order setting aside the March 2006 judgment and again granting summary judgment to CACV.[4] Hutto appeals the grant of summary judgment. 1. Hutto argues that the trial court erred by granting summary judgment to CACV because CACV failed to establish that it was a real party in interest with the right to sue Hutto to collect sums due under the cardholder contract. We agree. In Georgia, "[a]s a general rule, an action on a contract . . . shall be brought in the name of the party in whom the legal interest in the contract is vested, and against the party who made it in person or by agent."[5] A 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. Further, the writing must identify the assignor and assignee. To prevail on its motion for summary judgment, [CACV], as movant, has the burden of establishing the nonexistence of any genuine issue of fact, including [Hutto's] assertion that [CACV] is not the real party in interest, and all doubts are to be resolved against [CACV].[6] Here, CACV relies on the Watson affidavit to show that Chase Manhattan Bank assigned its rights to and interests in Hutto's account.[7] But Watson, an assistant vice president of JP Morgan Chase & Co., states that Hutto's account with JP Morgan Chase & Co. was sold to CACV. Watson's affidavit contains no mention of Chase Manhattan Bank. Thus, this document is insufficient to establish a valid assignment of rights from Chase Manhattan to CACV.[8] On appeal, CACV also relies on a document entitled "Bill of Sale," which appears in the record as an apparent attachment to CACV's response to Hutto's motion to set aside the judgment; the Bill of Sale is not included as an exhibit or attachment to CACV's summary judgment motion. Pretermitting whether CACV may rely on a document that was not filed in support of its motion for summary judgment, the Bill of Sale does not constitute sufficient evidence of a valid assignment between Chase Manhattan Bank and CACV. The Bill of Sale provides FOR VALUE RECEIVED, and pursuant to the terms and conditions of the Credit Card Account Purchase Agreement between Chase Manhattan Bank USA, National Association ("Seller") and CACV of Colorado, LLC ("Purchaser"), dated as of July 30, 2003, Seller does hereby sell, assign[,] and convey to Purchaser, its successors[,] and assigns, all right, title[,] and interest of Seller in and to those certain accounts described in Exhibit "A" attached hereto and made a part hereof for all purposes.

CACV did not file a supporting affidavit authenticating the Bill of Sale.[9] Furthermore, the Bill of Sale stated that it was assignment of "certain accounts" listed in "Exhibit A"; there is no document attached thereto labeled "Exhibit A," and the document immediately following the Bill of Sale in the record appears to be a statement to Hutto, not a list of accounts.[10] Finally, the Bill of Sale contradicts the Watson affidavit, which states that JP Morgan Chase & Co., not Chase Manhattan, sold its rights to Hutto's account to CACV.[11] Under these circumstances, we conclude that "[t]his evidence, even together with the reasonable inferences from it, was insufficient to establish [a valid assignment of rights to CACV]."[12] 2. In light of our holding in Division 1, we need not address Hutto's remaining enumeration. 3. In its response brief, CACV argues that the trial court erred by setting aside the 2006 judgment because Hutto's motion to set aside was untimely. But because CACV did not file a cross-appeal raising this argument, the issue is not before us and will not be considered.[13] 4. Hutto's motion to strike CACV's amended brief is denied as moot. Judgment reversed. Ellington, C. J., and Andrews, J., concur.[1] (Citations and punctuation omitted.) Koncul Enterprises, Inc. v. Fleet Finance, Inc., 279 Ga. App. 39 (630 SE2d 567) (2006). See OCGA 9-11-56 (c). [2] Emphasis omitted. [3] According to Hutto, she did not learn about the judgment until she received a letter dated September 14, 2009, from an attorney seeking to collect the judgment. [4] The order specifically noted that the court's case file lacked a certificate of service or any other indication that Hutto was provided with a copy of the judgment. [5] OCGA 9-2-20 (a). [6] (Punctuation and citations omitted.) Wirth v. Cach, LLC, 300 Ga. App. 488, 489 (685 SE2d 433) (2009). [7] On appeal, CACV also notes that "[t]he [r]ecord does not show the filing of any response by [Hutto] to [CACV's] Request for Admissions," and states that Hutto "ignores [her failure] to deny the [a]dmisions of [CACV] as to the correctness of the . . . assignment of the account. . . ." But, although the record contains a certificate of service showing that CACV served Hutto with requests for admissions, the requests themselves are not in the record. Thus, CACV's apparent argument that Hutto has effectively admitted the assignment of the account is without merit. [8] See id. at 490. [9] See Yates v. CACV of Colorado, LLC, 303 Ga. App. 425, 431 (1) (693 SE2d 629) (2010). [10] See id. [11] There is no evidence in the record connecting JP Morgan & Chase Co. with Chase Manhattan Bank. [12] Nyankojo v. North Star Capital Acquisition, 298 Ga. App. 6, 10 (679 SE2d 57) (2009). See also Yates, 303 Ga. App. at 431 (1); Wirth, 300 Ga. App. at 491; Ponder v. CACV of Colorado, LLC, 289 Ga. App. 858, 859-860 (658 SE2d 469) (2008). [13] See OCGA 5-6-38 (a); Carter v. Murphey, 241 Ga. App. 340, 343 (1) (526 SE2d 149) (1999).

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 (Cach) on its claim to recover past due sums under a credit card account agreement Wirth allegedly entered into with Providian National Bank (Providian). 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. Summary 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(c). (Citation and punctuation omitted.) Rabun v. McCoy, 273 Ga.App. 311, 615 S.E.2d 131 (2005). We review the grant or denial of summary judgment de novo, construing the evidence in favor of the nonmovant. 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 PROVIDIAN 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 assigned 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 no 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. The 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). A 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.) Nyankojo v. North Star Capital Acquisition, 298 Ga.App. 6, 8, 679 S.E.2d 57 (2009). Further, the writing must identify the assignor and assignee. (Footnote omitted.) Id. To prevail on its motion for summary judgment, Cach, as movant, has the burden of establishing the non-existence of any genuine issue of fact, including Wirth's assertion that Cach is not the real party in interest, and all 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 all rights and interests [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

Card Services (Washington Mutual), not Providian or Cach. And no competent evidence exists to establish the relationship between Washington Mutual and either Providian or Cach. Although Cach contends that Wirth did not raise Cach's failure to present a valid assignment in the trial court, the record reflects that issue was squarely before the trial court. Cach directly addressed Wirth's defense under OCGA 9-11-17 in its motion for summary judgment, referring to the Corrales affidavit to show that it was Providian's assignee. Further, in a motion to compel and for sanctions based on Cach's alleged failure to respond to his request for interrogatories and request for production of documents, Wirth argued that Cach had failed to provide documents and information relevant to show Cach's standing that would either contradict or confirm Corrales' affidavit. For example, Wirth's discovery request sought, among other things, information as to the date of the assignment, parties to, and individuals executing the assignment, and the exact amount of monetary consideration paid for the assignment, and documents reflecting [a]ll assignments and transfers of the debt complained of in [the] complaint as well as those under which [Cach] claim[s] standing as the plaintiff and real party in interest in this action. Thereafter, Cach filed a response to Wirth's discovery requests, referring to a Bill of Sale to show the sale of accounts from Washington Mutual (who purchased Providian) to [Cach]. The Bill of Sale provides Washington Mutual Bank, for value received and in accordance with the terms of the Purchase and Sale Agreement by and between Washington Mutual Bank and CACH, LLC (Purchaser), dated as of August 25, 2006 (the Agreement), does hereby sell, assign, and transfer to Purchaser, its successors and assigns, all right, title, and interest in and to the Accounts listed in the Account Schedule attached (as may be amended in accordance with the Agreement) at Appendix A to the Agreement[.] To the extent that the trial court may have relied on this document to find a valid assignment between Providian and Cach of the subject account, the Bill of Sale contradicts Corrales' affidavit in that it refers to accounts assigned from Washington Mutual to Cach while Corrales' affidavit alleges a valid assignment of Wirth's account from Providian to Cach. Moreover, there is no contract or Appendix A appended to the Bill of Sale which identifies Wirth's account number as one of the accounts Washington Mutual assigned to Cach. The record is also devoid of any evidence which reflects that Washington Mutual purchased Providian to support the chain of assignment to Cach. See Ponder v. CACV of Colorado, LLC, 289 Ga.App. 858, 859, 658 S.E.2d 469 (2008) (record was devoid of evidence supporting CACV's allegation that it was the successor in interest to Fleet Bank's right to recover any outstanding debt from Ponder). Given the foregoing, we conclude that [t]his evidence, even together with the reasonable inferences from it, was insufficient to establish all essential elements of [Cach's] case. Nyankojo, supra, 298 Ga.App. at 10, 679 S.E.2d 57. We therefore reverse the trial court's order granting summary judgment in favor of Cach. Judgment reversed. ANDREWS, P.J., and BARNES, J., concur.

NYANKOJO v. NORTH STAR CAPITAL ACQUISITION. No. A09A0704. Court of Appeals of Georgia. May 15, 2009. 58*58 Pekor & DeWoskin, Charles B. Pekor, Jr., Atlanta, for appellant. Franzen & Salzano, John H. Bedard, Jr., Joseph C. Cooling, Atlanta, James T. Freaney, for appellee. PHIPPS, Judge. North Star Capital Acquisition, as assignee of Wells Fargo Financial, brought this suit to collect the principal amount of $1,132.62 owed on an account between Elias Nyankojo, as buyer of certain pieces of furniture, and a company doing business as Leather World, as seller. In his answer to the complaint, Nyankojo challenged North Star's standing to sue him as an assignee of any debt he owed. On that ground, he filed counterclaims seeking damages against North Star for violations of the Fair Debt Collection Practices Act and the Fair Business Practices Act. Nyankojo moved for partial summary judgment, seeking an adjudication in his favor on North Star's complaint. North Star filed a cross-motion for partial summary judgment, seeking an adjudication in its favor on Nyankojo's counterclaim on the ground that North Star had showed itself to be a valid assignee of the debt owed by Nyankojo to Leather World. Nyankojo appeals the trial court's grant of North Star's motion for partial summary judgment and its denial of his motion. For reasons that follow, we agree with Nyankojo that North Star has not shown that it is an assignee of the debt owed by him to Leather World. We, therefore, reverse the grant of partial summary judgment to North Star and the denial of partial summary judgment to Nyankojo. Nyankojo moved for partial summary judgment in reliance on documents referred to as Exhibits A through D and an affidavit referred to as Exhibit E. Exhibits A through D were the only documents produced by North Star in response to Nyankojo's discovery requests. In support of its motion for partial summary judgment as well as its response to Nyankojo's motion, North Star produced two affidavits executed by its chief executive officer, David Paris, and documentation referred to as Exhibits 1 and 2. Summary judgment is proper when the record reveals no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. We review the trial court's grant of summary judgment de novo, construing the evidence and all reasonable inferences in favor of the nonmoving party. Additionally, to prevail at summary judgment a movant who does not bear the burden of proof need only show an absence of evidence to support an essential element of the nonmoving party's case.[1] "[O]nly admissible evidence may be considered when evaluating a motion for summary judgment."[2] Exhibits A and C Exhibit A is a photocopy of a sales invoice between Elias Nyankojo and a company identified as "Leather World." It identifies Elias Nyankojo residing in Alpharetta, Georgia as the buyer. It identifies Leather World along with its Norcross, Georgia address as the seller. It shows an account number beginning with the numerals "48400529"; a date of June 1, 2003; a purchase of a sofa, love seat, chair and ottoman for a total price of $4,321.83, governed by a revolving charge

agreement; a cash down 59*59 payment of $1,700; financing of the remaining unpaid balance in the amount of $2,621.83; repayment due in 12 monthly billing cycles; and a signature by Elias Nyankojo. Exhibit C is a photocopy of a revolving charge agreement between Leather World and Nyankojo, also dated June 1, 2003, and signed by Nyankojo. Exhibits A and C are sufficient to show that in June 2003 Elias Nyankojo bought four pieces of furniture from a Norcross, Georgia enterprise doing business as Leather World; that he was assigned an account number beginning with the numerals "48400529"; and that he also entered into a revolving charge agreement with Leather World through which he financed $2,621.83 of the purchase price. There is no merit in Nyankojo's argument that these documents are inadmissible because they were not authenticated or attested to by a competent witness. It is true that [a] proper foundation must be laid for the introduction of documentary evidence. As a general rule, a writing will not be admitted into evidence unless the offering party tenders proof of the authenticity or genuineness of the writing. There is no presumption of authenticity, and the burden of proof rests upon the proffering party to establish a prima facie case of genuineness.[3] But "[o]ur rules of evidence provide a wide variety of means by which a party may authenticate a writing. The use of circumstantial evidence is one of these methods."[4] And the content and appearance of a document are two circumstances considered when our courts analyze whether there is sufficient circumstantial evidence of authentication.[5] Exhibits A and C are preprinted form documents with handwritten insertions that bear the name of an individual and an address, as well as a business and an address. These documents contain very specific information concerning goods purchased, and bear signatures on behalf of buyer and seller. As to these documents, the trial court was authorized to find sufficient circumstantial evidence of authentication. Exhibit B Exhibit B is a photocopy of an assignment of a revolving charge agreement by Leather World. The document bears a stamp that identifies Leather World along with its address as the seller (or assignor) and contains the signature of Jeff Harris as the owner, officer, or member of the firm. But the document does not identify the assignee or the revolving charge agreement that is being assigned. "[A] 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."[6] And the writing must identify the assignor and assignee.[7] Exhibit B shows only that Leather World assigned an unidentified revolving charge agreement to an unidentified party. Exhibit D Exhibit D is a North Star preprinted form containing only computer-generated information. It bears the name "North Star Capital Acquisition, LLC" and is captioned "Charge-Off Statement." It shows Nyankojo as owing a $1,132.62 balance due as of October 31, 2006 on an account numbered 48400529. As such, it amounts to a business record, inadmissible as hearsay because no foundation was laid for its admission under the Business Records Act.[8]

60*60 Exhibit E Exhibit E is an affidavit in which Nyankojo testified that he had never entered into any kind of agreement with North Star and had never received any notice of any assignment of any credit account or agreement entered into between himself and anyone. The Paris Affidavits/Exhibits 1 and 2 In his first affidavit, Paris testified that North Star is in the business of purchasing delinquent accounts receivable; that, in the regular course of its business, North Star purchased a portfolio of delinquent accounts receivable consisting of revolving credit accounts from Wells Fargo Financial pursuant to a Bill of Sale attached as Exhibit 1 to the affidavit; that Wells Fargo delivered account data to North Star in electronic format; and that an excerpt of that data appearing as Exhibit 2 to the affidavit showed the account name of Elias Nyankojo and account number XXXXXXXX. Exhibit 1 to Paris's first affidavit is captioned "Bill of Sale and Assignment." The body of the document states that Wells Fargo and certain of its subsidiaries entered into an agreement for the sale of certain delinquent receivables to North Star upon terms and conditions stating that sellers sold, assigned, and transferred to the buyer all of the sellers' right, title, and interest in each and every one of the receivables listed in Schedule A and Schedule B to the Agreement. Exhibit 2 to Paris's first affidavit consists of a Schedule A and a Schedule B. Schedule A consists of pages bearing only the typewritten name, address, and social security number of Nyankojo, and other information such as a balance of $1,132.62 in the right hand margins. Schedule B consists of pages bearing the same information as Schedule A but in the left hand margins. In his second affidavit, Paris testified that in the regular course of its business, North Star purchased and was assigned all the rights, title, and interest to account 48400529 of Elias Nyankojo by Wells Fargo (as shown by the "Bill of Sale and Assignment"); that books and records of Wells Fargo and its routine factual documents relating to the account were transmitted and delivered to North Star and entered into its books and records in the regular course of business; that its books and records are kept on computer to preserve the records; that he examined the books and records; and that such records (consisting of the "Bill of Sale and Assignment" along with Schedules A and B) reveal that Nyankojo applied for and was issued the account for the purpose of obtaining $2,621.83 credit to purchase goods from Leather World, ultimately failed to make timely payments on the account, and was in default in the principal amount of $1,132.62. "We have held that testimony regarding the contents of business records, unsupported by the records themselves, by one without personal knowledge of the facts constitutes inadmissible hearsay."[9] Paris's affidavits in conjunction with the attached business records were sufficient to show only that North Star purchased a portfolio of Wells Fargo's delinquent accounts receivable, and that the portfolio included an account on which Nyankojo owed $1,132.62. The attached business records do not, however, reflect that the Nyankojo account that Wells Fargo assigned to North Star was account 48400529 on which he owed money to Leather World. And from Davis's affidavits, it appears that his knowledge of these facts was based on his review of the records and not his personal knowledge. Conclusions North Star, as assignee of Wells Fargo, sued Nyankojo on an account for $1,132.62 he owed to Leather World. The elements of North Star's claim thus consisted of Nyankojo's account debt to Leather World, Leather World's assignment of the account to Wells Fargo, and Wells Fargo's account assignment to North Star. Through competent and admissible evidence, North Star showed 61*61 nothing more than that, under a revolving charge agreement, Nyankojo was indebted in the amount of $2,621.83 on an account to Leather World identified by number; that Leather World assigned an unidentified revolving charge agreement to an unidentified entity; and that Wells Fargo

assigned to North Star an unidentified account on which Nyankojo owed $1,132.62. This evidence, even together with the reasonable inferences from it, was insufficient to establish all essential elements of North Star's case. Remaining issues are moot. Judgment reversed. SMITH, P.J., and BERNES, J., concur.[1] Lewis v. Meredith Corp., 293 Ga.App. 747, 748, 667 S.E.2d 716 (2008) (citations omitted). [2] Jones v. Orris, 274 Ga.App. 52, 57(2), 616 S.E.2d 820 (2005) (footnote omitted). [3] Davis v. First Healthcare Corp., 234 Ga.App. 744, 746(1), 507 S.E.2d 563 (1998) (citation and punctuation omitted). [4] Id. (citation and punctuation omitted). [5] Id. at 747, 507 S.E.2d 563. [6] Ponder v. CACV of Colorado, LLC, 289 Ga.App. 858, 859, 658 S.E.2d 469 (2008) (citations and punctuation omitted). [7] See Southern Mut. Life Ins. Assn. v. Durdin, 132 Ga. 495, 498, 64 S.E. 264 (1909); Scott v. Cushman & Wakefield of Ga., 249 Ga.App. 264, 547 S.E.2d 794 (2001). [8] See Span v. Phar-Mor, Inc., 251 Ga.App. 320, 322(1), 554 S.E.2d 309 (2001). [9] Ingles Markets v. Martin, 236 Ga.App. 810, 812, 513 S.E.2d 536 (1999); see also Dept. of Transp. v. Shugart,198 Ga.App. 884, 885(2), 403 S.E.2d 870 (1991) (physical precedent only); see generally Dickson v. Dickson,238 Ga. 672, 674(4), 235 S.E.2d 479 (1977); compare Boyd v. Calvary Portfolio Svcs., 285 Ga.App. 390, 391(1), 646 S.E.2d 496 (2007).

PONDER v. CACV OF COLORADO, LLC. No. A07A2150. Court of Appeals of Georgia. February 29, 2008. Aaron M. Ponder, for Appellant. Trauner, Cohen & Thomas, Michael J. Cohen, Atlanta, for Appellee. BERNES, Judge. We granted Aaron M. Ponder's application for discretionary appeal to review whether the trial court erred in granting summary judgment to CACV of Colorado, LLC in its suit on account.[1]Because the record contains no evidence that CACV was authorized to pursue the debt on behalf of the original party in interest, we reverse. We review a grant of summary judgment de novo, viewing all evidence and all reasonable conclusions and inferences drawn from the record in the light most favorable to the nonmovant.All Fleet Refinishing v. West Ga. Nat. Bank, 280 Ga.App. 676, 634 S.E.2d 802 (2006). Summary judgment is warranted only if there is no genuine issue of material fact and the movant demonstrates entitlement to judgment as a matter of law. Id. So viewed, the record shows that sometime prior to 2002, Ponder entered into a cardholder agreement with Fleet Bank and opened a charge account. On August 18, 2006, CACV, alleging that it was successor in interest of Fleet Bank, filed a complaint against Ponder to recover monies that he allegedly owed under that account. CACV then moved for summary judgment. In support of its motion, CACV filed an affidavit from one of its agents who averred that Ponder had established a charge account with Fleet Bank and had an outstanding balance on that account in the amount being sought by CACV, plus interest. The trial 470*470 court granted CACV's motion, and we granted the application for discretionary review. As a general rule, the law requires that one must be a party to a contract in order to enforce its provisions. Scott v. Cushman & Wakefield of Ga., 249 Ga.App. 264, 265, 547 S.E.2d 794 (2001). CACV, however, seeks to invoke an exception to the contractual privity rule, namely "that a party may assign to another a contractual right to collect payment, including the right to sue to enforce the right." Id. See OCGA 44-12-22. But an assignment must be in writing in order for the contractual right to be enforceable by an assignee. Scott, 249 Ga.App. at 266, 547 S.E.2d 794. We must reverse the trial court because the record is totally devoid of any evidence supporting CACV's allegation that it is the successor in interest to Fleet Bank's right to recover any outstanding debt from Ponder. Scott, 249 Ga.App. at 265-266, 547 S.E.2d 794. See alsoUltima Real Estate Investments v. Saddler, 237 Ga.App. 635, 636-637(2), 516 S.E.2d 360 (1999); Levinson v. American Thermex, 196 Ga.App. 291, 292(1), 396 S.E.2d 252 (1990). Indeed, besides identifying itself as a successor in interest in the style of its complaint, CACV has made no further allegation or presented any other proof of its relationship with Fleet Bank. Under these circumstances, summary judgment in favor of CACV was improper. See Scott,249 Ga.App. at 265-266, 547 S.E.2d 794; Ultima Real Estate Investments, 237 Ga.App. at 636-637(2), 516 S.E.2d 360; Levinson, 196 Ga.App. at 292(1), 396 S.E.2d 252. Judgment reversed. BLACKBURN, P.J., and RUFFIN, J., concur.[1] This case was subject to the discretionary appellate procedure set forth in OCGA 5-6-35(a)(6) because it involves a monetary judgment in an amount less than $10,000.

YATES v. CACV OF COLORADO, LLC. No. A10A0621. Court of Appeals of Georgia. April 6, 2010. 631*631 Cynthia Yates, pro se. Arthur C. Nilsen, for Appellee. BLACKBURN, Presiding Judge. Cynthia Yates appeals pro se from three separate orders of the trial court which: (i) confirmed an arbitration award entered against Yates and in favor of CACV of Colorado, LLC ("CACV") as successor in interest to Maryland Bank North America ("MBNA") (and thereby implicitly denied Yates's motion to vacate that award); (ii) entered judgment for CACV in the amount of the arbitration award against Yates; and (iii) denied Yates's counterclaim under the Fair Debt Collection Practices Act, 15 USCA 1692 et seq. (the "FDCPA"). We find that CACV presented no evidence to establish the existence of an arbitration agreement, and that the trial court therefore erred in confirming the arbitration award and in entering an order of judgment against Yates. Because Yates's motion to vacate the arbitration award was untimely, however, we find no error by the trial court in denying that motion. Finally, because a counterclaim under the FDCPA could not be properly asserted in a proceeding to confirm an arbitration award, we find that the trial court erred in addressing Yates's counterclaim, rather than dismissing it. Accordingly, we reverse the trial court's orders confirming the arbitration award and entering judgment in favor of CACV; we affirm the trial court's denial of Yates's motion to vacate the arbitration award; and we vacate the trial court's order denying Yates's counterclaim. We remand the case for entry of an order dismissing Yates's counterclaim without prejudice. "In reviewing a trial court's order confirming an arbitration award, this Court will affirm unless the trial court's ruling was clearly erroneous." (Punctuation omitted.) Brookfield Country Club v. St. JamesBrookfield, LLC.[1] The question of whether a valid and enforceable arbitration agreement exists, however, represents a question of law, subject to de novo review. Order Homes, LLC v. Iverson.[2] The record shows that this case arose out of Yates's alleged default on her obligations under a credit card agreement with MBNA. MBNA assigned the debt to CACV, who then initiated two different arbitration claims against Yates in the National Arbitration Forum ("NAF"). The first arbitration claim ("Claim No. 1") was filed sometime in or before July 2005. The notice of claim sent to Yates by CACV, and all subsequent correspondence from and between the NAF, CACV, and Yates concerning this claim, referenced an MBNA account number ending in 9695, an NAF file number ending in 8268, and a "claimant [CACV] reference number" ending in 5326. Yates responded to the notice of claim sent by NAF in Claim No. 1 via letter, dated August 13, 2005. In her response, Yates asserted, inter alia, that she had never agreed to arbitration. On August 18, 2005, 632*632 NAF sent Yates a letter acknowledging her response, enclosing a copy of the "scheduling notice" for Claim No. 1, and instructing Yates to contact NAF for a "fee schedule." Shortly thereafter, on August 25, 2005, CACV filed a motion for a stay in Claim No. 1, stating that it was still in the process of obtaining the necessary documentary evidence from MBNA. That same day, NAF sent Yates a letter notifying her that Claim No. 1 had been stayed. Over a year later, on October 13, 2006, CACV asked NAF to vacate the stay and proceed with the arbitration of Claim No. 1. CACV attached to its request exhibits that it asserted constituted the documentary evidence necessary to support Claim No. 1. On October 25, 2006, NAF sent Yates a

letter notifying her that CACV had moved to lift the stay, and on October 27 CACV forwarded a copy of its request and the attached exhibits to Yates via UPS. Yates filed her response with NAF on November 29, 2006, seeking a dismissal of Claim No. 1 with prejudice on the grounds that the documents submitted by CACV failed to support that claim and again asserting that she had never agreed to arbitration. Specifically, Yates noted that the claim in question referenced an MBNA account number ending in 9695, while all the documents submitted by CACV referenced an MBNA account number ending in 8180; that CACV had failed to produce a copy of a signed application or other writing showing that Yates had entered into an agreement with MBNA or the terms of any such agreement; and that CACV had failed to demonstrate the existence of an arbitration agreement. In support of her arguments, Yates attached copies of the documents sent to her by CACV on October 27. On December 5, 2006, NAF sent Yates a letter notifying her that an arbitrator had been appointed to hear Claim No. 1. Less than a week later, on December 11, 2006, NAF sent Yates a document "regarding CACV of Colorado, LLC v. Cynthia Yates" and captioned "Second Notice of Arbitration." This notice was in fact referring to a second claim ("Claim No. 2") that CACV had filed against Yates in the NAF regarding her MBNA account.[3] Given that she had only previously received notice of arbitration with respect to Claim No. 1, Yates assumed this letter referred to that claim. She was somewhat confused, however, because this "Second Notice" referred to an NAF file number, a claimant (CACV) reference number, and a CACV (as opposed to an MBNA) account number that differed from the file, claimant reference, and MBNA account numbers that had been used in all previous correspondence regarding Claim No. 1.[4] In an attempt to obtain clarification, Yates made three phone calls to NAF between her receipt of the December 11 "Second Notice" and December 31, 2006; her calls were not returned. Instead, Yates received a letter from NAF, dated January 3, 2007, which referred to the file, reference, and account numbers for Claim No. 1 (which, to Yates's knowledge, was the only claim pending against her), and which stated that the arbitrator appointed to hear that claim had requested additional information from CACV. The letter further stated that such information, together with any additional information Yates wished to provide, was due no later than February 2, 2007. After receiving that communication, Yates faxed a letter to NAF on January 9, 2007, asking them to confirm receipt of her November 29 correspondence and the documents she had attached thereto. Additionally, Yates's letter listed both file numbers and both claimant reference numbers used by NAF in their previous correspondence with her and asked for clarification as to whether there was, in fact, a second case; stated that if there was a second case, she had never received notice of it; and again reiterated that she had never agreed to arbitration of any claim against her. On January 11, Yates spoke on the telephone with an NAF case coordinator, who acknowledged receipt of Yates's January 9 fax and who stated that 633*633she was meeting with her supervisor to draft a letter to Yates. On January 14, 2007, Yates received in the mail a written notice of an award entered by the arbitrator against her on Claim No. 2 in the amount of $13,135.32. Although both the award and the letter were dated January 8, 2007, and although the letter was signed by the same NAF case coordinator with whom Yates spoke on January 11, the case coordinator had failed to mention the award to Yates. Yates responded by letter dated January 15, 2007, in which she stated that she had never received notice of the filing of Claim No. 2 and that she had never agreed to arbitration of any claim against her. She therefore sought to have the arbitrator's award vacated. NAF subsequently sent Yates two letters, each of which was dated January 18 and each of which was signed by the same case coordinator with whom Yates had previously corresponded. The first letter referenced the file, account, and reference numbers for Claim No. 1, and acknowledged receipt of Yates's January 9 fax, stating: "As indicated to [Yates] in a phone call on January 11, 2007 that information was received by [NAF] and was included with the file documents mailed to the [a]rbitrator for review." The second letter referenced the file, account, and reference numbers for Claim No. 2, and stated that Yates's request for "reopening and reconsideration" of that claim "[could not] be processed as it was not accompanied by the $250.00 [f]ee as required by [NAF's] Code of Procedure." Yates responded to NAF via letter dated January 29, stating, in part, that because she had never agreed to arbitrate her claim, she was unwilling to pay NAF any fees. She also reiterated her request for a copy of any "First Notice of Arbitration" allegedly served on her with respect to Claim No. 2. In its

response dated February 9, 2007, NAF informed Yates that she would need to pay $31 to receive a complete copy of the file for Claim No. 2 or $14 for copies of the documentation CACV submitted in support of its claim. Yates never obtained any such copies, and CACV apparently elected not to file the same in the court below. Yates's last correspondence from NAF came on February 19, 2007. On that date, NAF mailed her a copy of the arbitrator's award in Claim No. 1, which dismissed that claim with prejudice. On September 10, 2007, CACV filed a petition to confirm the arbitration award for Claim No. 2 in Cobb County Superior Court. In its petition, CACV alleged that "pursuant to the terms and conditions of the credit agreement between [MBNA and Yates], the parties have contractually agreed to have any and all disputes reviewed by the [NAF] and that any resulting award may be entered as a judgment in any court having jurisdiction." CACV sought a judgment against Yates in the amount of the arbitrator's award ($13,135.32), plus costs and post-judgment interest. In support of its petition, CACV attached a copy of the arbitrator's award; it did not attach a copy of the alleged arbitration agreement. Yates filed an answer, a motion to vacate the arbitrator's award, and a counterclaim against CACV for violation of the FDCPA. In her answer, Yates asserted that the petition should be dismissed based upon CACV's failure to attach thereto a copy of the alleged arbitration agreement. She sought to have the award vacated on the grounds that CACV had never served her with notice of the same and that she had never agreed to arbitration. CACV thereafter filed an amended confirmation petition and a motion to strike Yates's counterclaim. In its amended petition, CACV asserted that Yates was properly served with a First Notice of Arbitration with respect to Claim No. 2. The affidavit of service submitted in support of this assertion referenced the UPS package sent to Yates on October 27 and received by her on October 31, 2006. Rather than containing notice of Claim No. 2, however, the record shows that this package contained the documentation CACV had submitted in support of Claim No. 1, at the time it moved to have the stay lifted with respect to that claim. Additionally, CACV attached to this pleading a photocopy of "Selected Sections" of an MBNA "Credit Card Agreement: Additional 634*634 Terms and Conditions." That document was undated, was not attached to a credit application or other document signed by Yates, and was not supported by an affidavit authenticating the same. It contained a paragraph titled "Arbitration and Litigation," which provided, in relevant part: Any claim or dispute ("Claim") by either you or us against the other . . . arising from or relating in any way to this Agreement or any prior Agreement or your account. . . shall be resolved by binding arbitration. The arbitration shall be conducted by the [NAF] under the Code of Procedure in effect at the time the Claim is filed. . . . This arbitration agreement is made pursuant to a transaction involving interstate commerce and shall be governed by the Federal Arbitration Act, 9 U.S.C. 1-16 ("FAA"). Judgment upon any arbitration award may be entered in any court having jurisdiction. Following a hearing that apparently was not transcribed, the trial court issued two separate orders on April 14, 2008. The first order stated: "Upon consideration of [CACV]'s Application to Confirm an Arbitration Award . . . it is ORDERED that the Arbitration Award in favor of [CACV] . . . plus costs of this action be CONFIRMED. . . ." The second order was an order of judgment in favor of CACV and against Yates in the principal amount of $13,135.32 plus $105 in costs. Yates appealed from these orders, but this Court dismissed the appeal as premature, noting the trial court's failure to consider or address Yates's counterclaim under the FDCPA and holding that "[i]n light of Yates's pending counterclaim, the trial court's judgment is interlocutory, and because Yates filed a direct appeal, we have no jurisdiction to consider the matter." (Punctuation omitted.) Yates v. CACV of Colorado[5] On remand, the trial court held a "civil, non-jury hearing" and issued what it termed a "supplemental order" on September 2, 2009. The supplemental order stated that by issuing the two orders on April 14, 2008, the trial court had "effectively ruled against [Yates] on all allegations made by her. The

Order[s] should have recited these findings as they were final orders resolving each and every pending issue in the matter." Yates now appeals from both of the trial court orders entered on April 14, 2008 and the trial court order entered on September 2, 2009. 1. We find that the trial court erred in granting the petition to confirm the arbitration award. Under both Georgia and federal law, [a]rbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit. Therefore, the question of arbitrability, i.e., whether an agreement creates a duty for the parties to arbitrate the particular grievance, is undeniably an issue for judicial determination. (Punctuation omitted.) Pickle v. Rayonier Forest Resources[6] See also Panhandle Fire Protection v. Batson Cook Co.[7] Thus, "[w]here there is a specific challenge attacking the validity of an arbitration agreement, the court and not the arbitrator should decide whether the arbitration provision is enforceable." Crawford v. Great American Cash Advance.[8] In making this determination, the court applies state contract law, even in cases, such as this one, where the arbitration itself would be governed by the FAA. Id. As the party seeking to enforce the alleged arbitration agreement, CACV bore the burden of proving the existence of such a valid and enforceable agreement. See Life Care Centers of America v. Smith;[9] TranSouth 635*635 Financial Corp. v. Rooks.[10] The record before us shows unequivocally that CACV failed to meet this burden. The only evidence of an arbitration agreement was an undated, unauthenticated photocopy of certain "additional" terms and conditions of an MBNA credit agreement that CACV attached to its amended petition to confirm the arbitration award. There was no evidence, however, showing that Yates's contract with MBNA was governed by these provisions. Specifically, CACV did not submit a copy of any credit card application or agreement executed by Yates; nor did it submit an affidavit or other evidence showing the date Yates entered into a credit agreement with MBNA and that the photocopied terms and conditions represented the terms and conditions in effect for all MBNA credit agreements at that time.[11] Compare Davis v. Discover Bank;[12] Roberson v. Ocwen Fed. Bank.[13] Alternatively, CACV failed to offer any evidence showing that the original credit agreement between Yates and MBNA had been properly amended, the date of such amendment, that the attached terms and conditions reflected the amended agreement, that the amendments were sent to Yates, and that she accepted the same by continuing to use her MBNA credit card. Compare Davis, supra, 277 Ga.App. at 864-865, 627 S.E.2d 819. Moreover, because it had purchased the debt from MBNA, CACV was required to submit not only documentary evidence of its assignment but also an affidavit authenticating such documents. See Roberson, supra, 250 Ga.App. at 351(1)(a), 553 S.E.2d 162. See also MBNA America Bank v. Straub.[14] Here, CACV attached to its petition a photocopy of a document titled "Bill of Sale and Assignment of Loans" as evidence that it was the assignee of MBNA's rights under the bank's credit agreement with Yates. CACV, however, did not file a supporting affidavit authenticating that document. Furthermore, the alleged assignment stated that it was an assignment of MBNA's rights "to each of the Loans identified in the loan schedule ("Loan Schedule") attached hereto. . . ." The photocopied document submitted by CACV, however, did not have an attached Loan Schedule and therefore did not demonstrate that Yates's loan had been assigned to CACV. Given this lack of evidence, CACV failed to meet its burden of proving a valid and enforceable arbitration agreement. See Panhandle Fire Protection, supra, 288 Ga.App. at 198(1)(b), 653 S.E.2d 802; Life Care Centers of America, supra, 298 Ga.App. at 744(1), 681 S.E.2d 182. Finally, and despite its assertions to the contrary, CACV cannot rely on the arbitrator's finding that the parties had a valid arbitration agreement as evidence of such.[15] As noted earlier,

[a]bsent clear and unmistakable evidence that the parties agreed to arbitrate the issue of arbitrability, a trial court reviewing an arbitration decision should independently determine whether the parties contractually agreed to the arbitration. Hence, [given the lack of] clear and unmistakable evidence that [Yates and CACV] agreed to have the arbitrator resolve whether they had mutually assented to the arbitration clause, the superior court was charged with conducting its own independent examination of whether the parties had mutually assented to the clause. 636*636 (Citation omitted.) Panhandle Fire Protection, supra, 288 Ga.App. at 197-198(1)(b), 653 S.E.2d 802. In any given case, therefore, whether a particular dispute is arbitrable is a question for the court, and deference need not be given to the arbitrator's decision. CACV attempts to avoid the deficiencies in its evidence by asserting that Yates failed to challenge the arbitration award in a timely fashion. The FAA requires that "[n]otice of a motion to vacate, modify, or correct an award must be served upon the adverse party or his attorney within three months after the award is filed or delivered." 9 USCA 12. The question raised by this argument is whether CACV can rely on Yates's tardiness in moving to vacate the award to bar her from asserting a lack of an arbitration agreement as a defense to a petition to confirm that award. Although Georgia courts have never addressed this issue, we agree with those jurisdictions holding that a party who did not otherwise consent to the arbitration of a claim, via active participation or otherwise, may raise the absence of an arbitration agreement as a defense in confirmation proceedings. See MBNA America Bank v. Christianson;[16] MBNA America Bank v. Credit;[17] MBNA America Bank v. Boata.[18] The assertion of this defense does not constitute a motion to vacate, modify or correct an award. Thus, it is not subject to the 90-day time limitation found in section 12 of the FAA. 9 USCA 12. Rather, a claim that a contract dispute is not subject to arbitration constitutes an attack on the subject matter jurisdiction of the arbitrator. See Threatt v. Forsyth County.[19] See also Christianson, supra, 659 S.E.2d at 212; Credit, supra, 132 P.3d at 901. "[A]s such, [it] may be raised at any time prior to a final court judgment. . . . The final judgment in an arbitration proceeding is ordinarily an order of the trial court modifying, vacating or confirming the arbitrator's award." (Citations and punctuation omitted.) Boata, supra, 893 A.2d at 483. Cf. OCGA 9-9-15. 2. By granting the petition to confirm the award, the trial court implicitly denied Yates's motion to vacate. Given Yates's failure to file a motion to vacate the award within three months after receiving delivery of it, we find no error in the trial court's ruling and therefore affirm the same.[20]See 9 USCA 12. 3. Because a petition to confirm an arbitration award is a special statutory proceeding, as opposed to a civil action, counterclaims are generally not permitted. Booth v. Hume Publishing.[21] Cf. Hardin Constr. Group v. Fuller Enterprises[22] ("[A]n application for confirmation is not a complaint which initiates a civil action in the superior court. It is not a civil suit in the ordinary meaning of that term.") (punctuation omitted; emphasis in original). The only exception to this rule is where the counterclaim relates to those defenses permitted under sections 10 and 11 of the FAA (9 USCA 10, 11) i.e., where the counterclaim seeks the modification or vacation of the arbitration award. Booth, supra, 902 F.2d at 931(D). Accordingly, the trial court erred to the extent it considered the merits of Yates's counterclaim under the FDCPA. Rather than denying that claim, the trial court should have dismissed it without prejudice. 637*637 For the reasons set forth above, we reverse the April 14, 2008 order of the trial court confirming the arbitration award, but affirm the trial court's implicit denial of Yates's motion to vacate that award; we reverse the April 14, 2008 order entering judgment against Yates and in favor of CACV; and we vacate the September 2, 2009 order denying Yates's counterclaim under the FDCPA, and remand the case for entry of an order dismissing that claim without prejudice. Judgment affirmed in part, reversed in part, and vacated, and remanded in part.

BARNES and BERNES, JJ., concur.[1] Brookfield Country Club v. St. James-Brookfield, LLC, 299 Ga.App. 614, 618(1), 683 S.E.2d 40 (2009). [2] Order Homes, LLC v. Iverson, 300 Ga.App. 332, 333, 685 S.E.2d 304 (2009). [3] As best we can tell from the record, Claim No. 2 was filed on or about October 25, 2006. [4] This "Second Notice" referred to an NAF file number ending in 6795, a claimant (CACV) account number ending in 3531, and a claimant reference number ending in 3235. [5] Yates v. CACV of Colorado, 295 Ga.App. 69, 69, 670 S.E.2d 884 (2008). [6] Pickle v. Rayonier Forest Resources, 282 Ga. App. 295, 296, 638 S.E.2d 344 (2006). [7] Panhandle Fire Protection v. Batson Cook Co., 288 Ga.App. 194, 197(1)(b), 653 S.E.2d 802 (2007). [8] Crawford v. Great American Cash Advance, 284 Ga.App. 690, 692-693(1), 644 S.E.2d 522 (2007). [9] Life Care Centers of America v. Smith, 298 Ga. App. 739, 741(1), 681 S.E.2d 182 (2009). [10] TranSouth Financial Corp. v. Rooks, 269 Ga. App. 321, 324(1), 604 S.E.2d 562 (2004). [11] In this regard, we note that any such affidavit would need to be sufficient to serve as the basis for admitting the business records of MBNA. [12] Davis v. Discover Bank, 277 Ga.App. 864, 864-865, 627 S.E.2d 819 (2006). [13] Roberson v. Ocwen Fed. Bank, 250 Ga.App. 350, 351(1)(a), 553 S.E.2d 162 (2001). [14] MBNA America Bank v. Straub, 12 Misc.3d 963, 815 N.Y.S.2d 450, 453-454 (N.Y.City Civ.Ct. 2006). [15] We note that we have no way of knowing what evidence was presented to the arbitrator to establish the existence of an arbitration agreement, because the documents CACV submitted in support of Claim No. 2 were not served on Yates, NAF refused to provide Yates with copies of those documents unless she paid a fee, and CACV failed to file any such documents in the trial court. [16] MBNA America Bank v. Christianson, 377 S.C. 210, 659 S.E.2d 209, 212 (2008). [17] MBNA America Bank v. Credit, 281 Kan. 655, 132 P.3d 898, 901 (2006). [18] MBNA America Bank v. Boata, 94 Conn.App. 559, 893 A.2d 479, 483 (2006), aff'd, 283 Conn. 381, 926 A.2d 1035 (2007). [19] Threatt v. Forsyth County, 250 Ga.App. 838, 841(1)(b), 552 S.E.2d 123 (2001). [20] We note, however, that our holding that CACV is not entitled to confirm the award is res judicata, and would operate to bar CACV from bringing a subsequent confirmation petition. Thus, even though the award stands, our holding means that it is unenforceable. [21] Booth v. Hume Publishing, 902 F.2d 925, 930-931(D) (11th Cir.1990). [22] Hardin Constr. Group v. Fuller Enterprises, 265 Ga. 770, 771, 462 S.E.2d 130 (1995).

GREEN v. CAVALRY PORTFOLIO SERVICES, LLC. No. A10A1123. -- September 08, 2010

Cavalry Portfolio Services, LLC (CPS), sued Grant Green to collect sums owed under an automobile sales contract between Green (purchaser) and Cary Paul Ford (seller). CPS alleged that it received an assignment of the contract rights and was therefore the real party in interest with the right to sue for the amount due. In his answer to the suit and response to CPS's motion for summary judgment, Green contended that CPS failed to establish that it was the real party in interest to sue on the contract. We agree and reverse the trial court's grant of summary judgment in favor of CPS. The record shows that Cary Paul Ford assigned its contract rights in writing to Union Acceptance Corporation. Thereafter, the record shows a written assignment of the contract rights from Union Acceptance Company, LLC to Professional Recovery Systems, LLC, which assigned the rights in writing to Cavalry SPV I, LLC, which assigned the rights in writing to CPS. Because nothing in the record shows an assignment of the contract rights from Union Acceptance Corporation to Union Acceptance Company, LLC, there is a break in the chain of written assignments necessary to establish that CPS was the real party in interest to bring the suit on the contract. Wirth v. Cach, LLC., 300 Ga.App. 488 (685 S.E.2d 433) (2009). Although CPS contends in its appellate brief that Union Acceptance Company, LLC is also known as Union Acceptance Corporation, there is nothing in the record to support this contention. In the absence of evidence showing that CPS received a valid assignment of contract rights making it the real party in interest to sue on the contract, the trial court erred in granting summary judgment in favor of CPS. Lau's Corp. v. Haskins, 261 Ga. 491 (405 S.E.2d 474) (1991); Wirth, supra. Judgment reversed. ELLINGTON and DOYLE, JJ., concur.

BOYD v. CALVARY PORTFOLIO SERVICES, INC. No. A07A0194. Court of Appeals of Georgia. May 15, 2007. 497*497 Sidney L. Moore Jr., Atlanta, for appellant. Sherwin P. Robin, Savannah, for appellee. RUFFIN, Judge. Norma Boyd purchased a vehicle, and the finance contract on the vehicle was assigned to AmeriCredit Financial Services, Inc. The vehicle was later repossessed and sold at auction. AmeriCredit sought to recover a deficiency of $7,259.59 from Boyd. AmeriCredit then sold the account, and Calvary Portfolio Services, Inc. brought a collection action against Boyd to recover the deficiency. Boyd counterclaimed, alleging violations of the Motor Vehicle Sales Finance Act, Fair Debt Collection Practices Act, and Georgia law on repossession. Calvary moved for summary judgment, which the trial court granted. Boyd appeals and, for reasons that follow, we affirm. 1. Boyd first argues that the trial court erred in granting summary judgment because it relied on inadmissible hearsay in making its decision. On appeal from the grant of a motion for summary judgment, we 498*498 conduct a de novo review to determine whether the trial court erred in concluding that no genuine issue of material fact existed and that the moving party was entitled to judgment as a matter of law.[1] Here, Calvary submitted two affidavits in support of its motion for summary judgment, both from employees of Calvary. The affidavits refer to attached documents which reflect the various transactions among Boyd, AmeriCredit, and Calvary.Boyd contends that these affidavits merely recount facts which are hearsay, as "[t]he record does not show that either of these men had any association with the account at all until it was assigned for collection, and the accuracy of their conclusions depends entirely on the accuracy of the records of Ameri[C]redit[,] to which they cannot attest." "[W]here routine, factual documents made by one business are transmitted and delivered to a second business and there entered in the regular course of business of the receiving business," such documents are admissible under OCGA 24-3-14(b).[2] In Jackson, we affirmed the trial court's admission of mortgage loan documents on the testimony of an employee of the company, which had purchased the mortgage after it was made.[3] This is an analogous situationCalvary purchased Boyd's account in the regular course of its business and received from AmeriCredit routine factual documents that became part of its own business records. And Georgia law favors the admission of evidence of even doubtful relevance or competency, with the weight to be given it left to the trier of fact.[4] Under these circumstances, any lack of personal knowledge by the affiants of the specific facts in the documents "would go to the weight of the evidence, not its admissibility."[5] Accordingly, documents attached to the affidavits were properly admitted as business records of Calvary, and the trial court did not err in granting summary judgment based on the evidence contained therein.[6] 2. Boyd also contends that the trial court erred in granting summary judgment on her counterclaims "because the counterclaims were not addressed in [Calvary's] motion or pierced by any admissible evidence." Calvary requested that the trial court enter summary judgment in its favor "upon the whole case" because "there is no genuine issue as to any material fact and . . . [Calvary] is entitled to [j]udgment as a matter of law," but did not specifically address the counterclaims in its motion or in the brief in support of the motion. The trial court made no mention of the counterclaims in its order.

Boyd was not required to present evidence in support of her counterclaims until Calvary pierced the allegations contained therein.[7] "Nothing in the applicable law places a burden on [the nonmovant] to respond to issues which are not raised in the motion for summary judgment."[8]But a trial court may grant summary judgment sua sponte under certain circumstances, so long as it "ensure[s] that the party against whom summary judgment is rendered is given full and fair notice and opportunity to respond prior to entry of summary judgment."[9] Here, all ofBoyd's counterclaims alleged wrongful conduct in the repossession process. They arise out of the same set of facts that Boyd was required to address in responding to the motion for summary judgment, and the trial court necessarily resolved all issues 499*499 in favor of Calvary in granting it summary judgment on the deficiency claim. We note that Boyd, in response to the motion for summary judgment, merely challenged the admissibility of Calvary's affidavits on the basis set forth in Division 1 and presented no affirmative evidence to refute Calvary's assertions. Because in this instance summary judgment in favor of Calvary was dispositive of the issues raised by Boyd's counterclaims, the trial court did not err in also granting summary judgment to Calvary on Boyd's counterclaims.[10] Judgment affirmed. BLACKBURN, P.J., and BERNES, J., concur.[1] See Chapman v. C.C. Dickson Co., 273 Ga.App. 640, 641(1), 616 S.E.2d 478 (2005). [2] Jackson v. State, 209 Ga.App. 217, 219(1), 433 S.E.2d 655 (1993); see Walter R. Thomas Assoc. v. Media Dynamite, 284 Ga.App. 413, 416(1)(a), 643 S.E.2d 883 (2007). OCGA 24-3-14(b) is the Business Records Act, an exception to the hearsay rule. [3] See Jackson, supra at 218, 433 S.E.2d 655. [4] See Tensar Earth Technologies v. City of Atlanta, 267 Ga.App. 45, 48-49(2), 598 S.E.2d 815 (2004). [5] Intl. Biochemical Indus. v. Jamestown Mgmt. Corp., 262 Ga.App. 770, 776(3), 586 S.E.2d 442 (2003). [6] See Jackson, supra; Walter R. Thomas, supra. [7] See Knight v. American Suzuki Motor Corp., 272 Ga.App. 319, 325(2), 612 S.E.2d 546 (2005). [8] (Punctuation omitted.) Id. [9] Fraker v. C.W. Matthews Contracting Co., 272 Ga.App. 807, 816(4), 614 S.E.2d 94 (2005). [10] See id.; Smith v. Gordon, 266 Ga.App. 814, 817(2), 598 S.E.2d 92 (2004).