Portfolio Recovery Associates, LLC v. Max A. Bickford — 2017 ME 140

MAINE SUPREME JUDICIAL COURT 	Reporter of Decisions
Decision: 	2017 ME 140
Docket: 	Han-16-414
Argued: 	April 12, 2017
Decided: 	June 29, 2017
Panel: 	SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
PORTFOLIO RECOVERY ASSOCIATES, LLC
v.
MAX A. BICKFORD
JABAR, J.
[¶1] 	Max A. Bickford appeals from a judgment of the Superior Court
(Hancock 	County, 	R. 	Murray, 	J.) 	affirming 	a 	District 	Court 	(Ellsworth,
Mallonee, J.) judgment 	in a small claims proceeding 	in favor of Portfolio
Recovery Associates, LLC (PRA), finding Bickford liable on debt that PRA had
purchased from a prior creditor. 	Bickford raises two issues on appeal. 	He
contends that the District Court erred by finding that PRA had met its burden
of proof and by admitting PRA’s exhibits into evidence. 	We disagree and
affirm.
I. BACKGROUND
[¶2] 	PRA filed two small claims complaints against Bickford: one on
April 23, 2015, and the second on May 11, 2015. 	The first claim alleged that

2
Bickford had been indebted to Capital One Bank (USA), N.A. in the amount of
$1,102.20 and that PRA had purchased the debt. 	The second alleged that
Bickford had been indebted to HSBC Bank Nevada, N.A. in the amount of
$885.08 and that PRA had purchased the debt. 	In each complaint, PRA
requested a judgment against Bickford for the amount of the alleged debt plus
costs.
[¶3] 	The District Court (Mallonee, J.) heard the cases together on
October 5, 2015. 	For each claim, 	PRA 	offered in 	evidence 	an affidavit
suggesting that PRA had received proper assignment of Bickford’s debt and
that the purported amount of the debt was an accurate statement of the
amount of money owed. 	PRA also offered in evidence for each claim bills of
sale purportedly proving the sale of Bickford’s two accounts from the prior
creditors to PRA. 	Additionally, as to its first claim, PRA offered in evidence
several credit card statements and a 2012 Maine tax lien certificate offered to
show that the address where the statements were mailed was Bickford’s
residence. 	As to its second claim, in addition to the affidavit and bill of sale,
PRA offered in evidence a single credit card statement.
[¶4] 	Bickford objected to the admission of the affidavits in each claim
on the basis that there was no witness to verify their relevance, accuracy, or

3
credibility, and that they did not comply with the requirements for actions
brought on itemized annexed accounts pursuant to 16 M.R.S. § 355 (2016).
Bickford also argued that all of PRA’s exhibits should be excluded pursuant to
M.R.S.C.P. 6(b) and 15, and M.R. Civ. P. 43(a). 	Further, he argued at the
hearing that PRA had offered no evidence of a contract and therefore could
not prove its claims for breach of contract.
[¶5] 	The court reserved ruling on the evidentiary offerings in both
claims 	and 	provided 	additional 	time 	for 	each 	party 	to 	submit 	written
arguments. 	After review of the written submissions, in two decisions—
without making factual findings or explicitly ruling on the admissibility of the
evidence—the court found that 16 M.R.S. § 355 did not apply and concluded
that PRA had met its burden of proof as to both claims.1 	Bickford appealed
both decisions to the Superior Court pursuant to M.R.S.C.P. 11(d), and the
Superior Court (Hancock County, R. Murray, J.) affirmed the District Court’s
decisions. Bickford timely appeals that judgment. See M.R. App. P. 2(b)(3).
1 At the hearing, PRA asserted that its complaints recited claims only for breach of contract. In
written filings to the District Court following the hearing, PRA asserted causes of action for breach
of contract and unjust enrichment, and a claim under the Fair Debt Collection Practices Act, see
15 U.S.C.S. §§ 1692-1692p (LEXIS through PL 115-9). 	On appeal here, PRA does not specify the
legal theory under which it is entitled to relief, but contends that its evidence supports the court’s
finding that PRA owns Bickford’s debt, the debt is in the amounts alleged, Bickford defaulted, and
PRA’s two affidavits meet the statutory requirements of 16 M.R.S. § 355 (2016), which sets out
requirements of affidavits for accounts annexed complaints. Because at the hearing PRA explicitly
disclaimed section 355 as a basis for Bickford’s liability, we do not consider arguments related to
that cause of action.

4
II. DISCUSSION
[¶6] 	Bickford raises two issues on appeal. 	First, he claims that the
District Court erred by finding that PRA had met its burden of proof to
establish its ownership of his debt. Second, he asserts that the court erred by
admitting PRA’s affidavits into evidence because the affidavits do not meet the
requirements of 16 M.R.S. § 355 and PRA presented no live witnesses to
support its case.
A. 	Standard of Review
[¶7] 	Small claims proceedings in the District Court are creatures of
statute with procedures and rules different from those in the District and
Superior Courts. 	See 14 M.R.S. §§ 7481-7487 (2016). 	Initially, the small
claims rules limited any appeal by either party to issues of law. 	See Ela v.
Pelletier, 495 A.2d 1225, 1227-28 (Me. 1985). In Ela v. Pelletier, however, we
held that limiting appeals by the defendant to issues of law violated the Maine
Constitution because it denied the defendant the right to a jury trial. 	Id. at
1228-29. 	Because the plaintiff had the option of bringing the claim in
Superior 	Court 	where 	a 	jury 	trial 	would 	be 	available, 	there 	was 	no
constitutional requirement that the plaintiff be given the same right as the

5
defendant to appeal a small claims judgment and demand a jury trial. 	Id. at
1229.
[¶8] 	The Rules of Small Claims Procedure were subsequently amended
to reflect the defendant’s options on appeal. 	See M.R.S.C.P. 11. Rule 11(d)(2)
states that upon appeal by the defendant, he or she is entitled to a jury trial de
novo on an issue triable by right. 	If the defendant decides to appeal any
factual issues, he or she is required to file affidavits “‘setting forth specific
facts showing that there is a genuine issue of material fact’” entitling the
appealing defendant to a trial by jury. 	H & H Oil Co. v. Dineen, 557 A.2d 604,
605 (Me. 1989) (quoting M.R. Civ. P. 56(e)); see also M.R.S.C.P. 11(d)(2); M.R.
Civ. P. 80L. 	Failure to make a demand for a jury trial with accompanying
affidavits constitutes a waiver of his right to jury trial. 	In that event, the
appeal is limited to questions of law. See M.R.S.C.P. 11(d)(1)-(2).
[¶9] 	Here, Bickford did not demand a jury trial on any issues, and
therefore we only address any legal issues, which we review de novo. 	See
Gray v. TD Bank, N.A., 2012 ME 83, ¶ 10, 45 A.3d 735. 	Legal issues do not
include questions of weight to be given to evidence. 	See Vibert v. Dimoulas,
2017 ME 62, ¶ 16, --- A.3d ---. Thus, to the extent that Bickford argues that the
court erred in its assessment of evidence properly admitted, that argument

6
cannot entitle Bickford to relief on appeal. To the extent that Bickford argues
that, as a matter of law, PRA did not present evidence on which the court
could have determined that Bickford was liable, that argument is cognizable
on appeal. See NDC Commc’ns, LLC v. Carle, 2016 ME 156, ¶ 7, 149 A.3d 1151.
[¶10] 	PRA’s evidence was limited to the information contained in and
accompanying the affidavits. If the court did not err in admitting the affidavits
in 	evidence, 	then 	the 	court 	had 	evidence 	sufficient 	to 	support 	its
determinations that Bickford is liable to PRA. 	Alternatively, if the affidavits
were not admissible, then there would be no evidence on which the court
could 	find 	Bickford 	liable. 	We 	therefore 	turn 	to 	Bickford’s 	argument
pertaining to the admissibility of PRA’s documents admitted in evidence.
B. 	Admissibility of the Evidence
[¶11] Bickford argues that the court erred by admitting in evidence the
various exhibits that PRA offered in both its claims, because PRA’s reliance
upon affidavits rather than live witnesses denied Bickford a fair opportunity
to present a defense. 	PRA, on the other hand, contends that its exhibits were
properly admitted and that there was no requirement for it to present a live
witness.

7
[¶12] 	The purpose of small claims proceedings is to provide “a simple,
speedy and informal court procedure for the resolution of small claims.”
14 M.R.S. § 7481. 	Small claims are defined as any claim for “debt or
damage[s]” no greater than $6,000. 	14 M.R.S. § 7482. 	The Small Claims Act
provides that the Supreme Judicial Court shall adopt procedural rules for
small claims actions. 	14 M.R.S. § 7484-A. 	Under M.R.S.C.P. 6(b), the Maine
Rules of Evidence, other than those with respect to privilege, do not apply in
small claims proceedings. 	Without setting evidentiary standards, M.R.S.C.P.
6(b) states that “[t]he court may receive any oral or documentary evidence,
not 	privileged, 	but 	may 	exclude 	any 	irrelevant, 	immaterial, 	or 	unduly
repetitious evidence.” (Emphasis added).
[¶13] 	In this case, the exhibits submitted by PRA included documents
that were not “irrelevant, immaterial, or unduly repetitious.” In support of its
claim on the Capital One debt, PRA offered in evidence photocopies of five
credit card bills setting out Bickford’s name, an account number, the dates of
the statements, and the outstanding balance. 	In support of its claim on the
HSBC debt, PRA offered in evidence one credit card bill also setting out
Bickford’s name, an account number, a date, and an outstanding balance.
PRA’s affidavits suggested that PRA was the assignee of Bickford’s previous

8
creditors and listed the final four digits of the Capital One and HSBC accounts.
In addition, PRA offered two bills of sale, one for each claim, both stating that
“[a]ccounts identified in the Sale File” had been sold by prior creditors to PRA.
The 	court 	was 	entitled 	to 	admit 	in 	evidence 	and 	then 	consider 	these
documents because they fell within the general grant of admissibility created
in Rule 6(b) and because none of that Rule’s grounds for exclusion applied
here. 	There was no error in the court’s decision to admit these documents in
evidence.2
The entry is:
Judgment affirmed.
2 We are not persuaded by Bickford’s assertion that in this type of proceeding, he had a “right”
to cross-examine the affiants, and we note that nothing in the record indicates that Bickford
requested any process by which one or both affiants would be made available, telephonically or
otherwise, for testimonial purposes.

9
Erica Veazey, Esq. (orally), Pine Tree Legal Assistance, Bangor, for appellant
Max A. Bickford
Katherine Audet, Esq., Law Offices Howard Lee Schiff, PC, Portland, and David
P. 	Florio, 	Esq. 	(orally), 	Law 	Offices 	Howard 	Lee 	Schiff, 	PC, 	Auburn,
Massachusetts, for appellee Portfolio Recovery Associates, LLC.
Linda Conti, Asst. Atty. Gen., Office of the Attorney General, Augusta, for
amicus curiae Attorney General Janet T. Mills
Thomas A. Cox, Esq., National Consumer Law Center, Portland, and Jeffrey
Gentes, 	Esq., 	Jerome 	N. 	Frank 	Legal 	Services 	Organization, 	New 	Haven,
Connecticut, for amici curiae The National Consumer Law Center and The
Jerome N. Frank Legal Services Organization
Hancock County Superior Court docket numbers AP-2015-10 and AP-2015-11
FOR CLERK REFERENCE ONLY