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RAY KLEIN, INC., d/b/a PROFESSIONAL CREDIT SERVICE, ASSIGNEE OF US BANK, N.A., Plaintiff-Appellant, v. DAVID KERR and TINA G. KERR, a/k/a TINA G. MEASE, Defendants-Respondents.

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No. SD28850 Opinion filed December 16, 2008

APPEAL FROM THE CIRCUIT COURT OF STONE COUNTY Honorable Alan Blankenship, Associate Circuit Judge AFFIRMED Plaintiff Ray Klein, Inc. d/b/a Professional Credit Service (PCS) appeals from a judgment in favor of defendants David Kerr and Tina Mease (hereinafter referred to collectively as "Defendants" and individually by their surnames). The trial court ruled in Defendants' favor because PCS failed to prove that it was the assignee of the debt upon which suit was brought. On appeal, PCS argues that the court's finding as to Kerr was against the weight of the evidence.1 This Court affirms.
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On appeal, PCS has not challenged the court's ruling in favor of Mease.

In this court-tried case, appellate review is governed by Rule 84.13(d).2 The judgment must be affirmed unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Ewanchuk v. Mitchell, 154 S.W.3d 476, 478 (Mo. App. 2005). "An appellate court exercises extreme caution in considering whether a judgment should be set aside on the ground that it is against the weight of the evidence and will do so only upon a firm belief that the judgment was wrong." Simpson v. Strong, 234 S.W.3d 567, 578 (Mo. App. 2007). The phrase "weight of the evidence" means its weight in probative value, rather than the quantity or amount of evidence. Nix v. Nix, 862 S.W.2d 948, 951 (Mo. App. 1993). The weight of the evidence is not determined by mathematics, but depends on its effect in inducing belief. Id. The trial court's judgment is presumed correct, and PCS has the burden of proving it erroneous. Surrey Condominium Ass'n, Inc. v. Webb, 163 S.W.3d 531, 535 (Mo. App. 2005). On appeal, this Court views the evidence and all reasonable inferences in the light most favorable to the judgment and disregards all contrary evidence and inferences. Strobl v. Lane, 250 S.W.3d 843, 844 (Mo. App. 2008). The credibility of the witnesses and the weight to be given to their testimony is for the trial court, which is free to believe none, part, or all of the testimony of any witness. Christian Health Care of Springfield West Park, Inc. v. Little, 145 S.W.3d 44, 48 (Mo. App. 2004). Our summary of the evidence presented at trial, which is set forth below, has been prepared in accordance with these principles.

All references to rules are to Missouri Court Rules (2008). All references to statutes are to RSMo (2000).

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On October 9, 2006, PCS filed suit against Kerr and Mease in the Associate Division of the Circuit Court of Stone County, Missouri. The third paragraph of the petition alleged that Defendants had executed a promissory note and security agreement that was later assigned to US Bank, N.A. (US Bank). A copy of the promissory note and security agreement, which had been executed by Kerr and Mease in connection with the purchase of an automobile from Reliable Chevrolet, was attached to the petition. The seventh paragraph of the petition alleged that US Bank had assigned all of its rights, title and interest in the debt to PCS. Defendants were each served on November 1, 2006. In their answer, they

admitted the allegations in the third paragraph of the petition, but they denied the allegations in the seventh paragraph due to lack of information. In addition, Defendants specifically alleged that they had no duty or obligation to pay any sums to PCS because it was not the assignee of the promissory note. According to the certificates of service, PCS mailed separate requests for admissions to Kerr and Mease on December 6, 2006. In paragraph 1.I. of each request for admission, each individual defendant was asked to admit that "Plaintiff received by valid assignment all the rights of the original creditor pursuant to the Promissory Note ...." Defendants' responses were due on January 5, 2007. Rule 59.01(d)(1). Neither Kerr nor Mease filed a response to the requests for admissions by that date.3 The case went to trial on April 26, 2007. PCS appeared by counsel. Defendants appeared in person and by counsel. PCS' counsel offered five exhibits into evidence. Exhibit 1 was an affidavit by Fran Amato (Amato), the manager of PCS' legal

On February 14, 2007, Mease filed an untimely response without leave of court. In that response, she denied paragraph 1.I. of the request. 3

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department, which had been executed on November 27, 2006. In relevant part, Amato's affidavit stated: 2. [Defendants'] US Bank account referenced above (hereinafter "the Credit Account") was purchased for value by Professional Portfolio Service, LLC. As legal owners in due course, Professional Portfolio Service, LLC assigned the Credit Account to Plaintiff for collection. The scope of my job responsibilities include the supervision or oversight of credit account records maintained by Plaintiff, including the Credit Account referenced above. In the performance of my duties for Plaintiff, I am familiar with the manner and method by which Plaintiff creates and/or maintains its normal business books and records, including computer records and/or the date of the purchased accounts, in the ordinary course of business. As such, I am the custodian of said business records. Attached hereto are 10 pages of records from Plaintiff which are kept and maintained under my control and supervision in the regular course of business, and it was the regular course of business of Plaintiff's employees or representatives of the company with knowledge of the act, event, condition, opinion, or diagnosis recorded to make the records or transmit information thereof to be included in such record, and the record was made at or near the time of the act, event, condition, opinion, or diagnosis. The attached statement of account(s) and supporting documentation are business records of such company so kept, and such statement(s), as well as the various items thereof, are within my personal knowledge just, true, and correct, and are the originals or exact duplicates of the originals.

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There were ten pages of records attached to Exhibit 1. The first record was a copy of a nine-page document titled "CHARGED-OFF ACCOUNT PURCHASE AGREEMENT" between US Bank and Professional Portfolio Services, LLC (PPS). This document, which had been executed in August 2005, confirmed that Defendants' debt was one of the charged-off accounts that had been purchased by PPS. The second record, however, was a one-page letter from PCS to PPS dated March 13, 2007 requesting that PPS assign Defendants' debt to PCS. The letter appears to bear the signature of a PPS officer purportedly assigning the debt to PCS.

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Exhibit 2 was another affidavit that Amato executed on November 27, 2006. Paragraphs two, three and four of this affidavit were virtually identical to those found in Exhibit 1. The copied records attached to this exhibit consisted of a vehicle service agreement for Defendants' vehicle, a title application, a vehicle certificate of origin, a credit application, the promissory note and security agreement and a US Bank account statement showing the payment history on the account. Thus, Exhibit 2 contained no documents tending to corroborate the statement in the second paragraph of the affidavit that Defendants' account had been assigned to PCS as of November 27, 2006. The final three exhibits all related to PCS' requests for admissions to Defendants. Exhibits 3 and 4 were copies of the admissions directed to Mease and Kerr, respectively. Exhibit 5 was the certificate of mailing showing that said requests had been mailed to Defendants on December 6, 2006. These comprehensive requests for admissions covered every element of PCS' case, including its status as the assignee of the debt upon which suit was brought. PCS' counsel took the position that, because neither Kerr nor Mease had filed a timely response, counsel was entitled to place Exhibits 3-5 in evidence by reading the requests into the record or by having the court take judicial notice of the contents of the requests. After PCS' counsel offered the five exhibits, Defendants' counsel made the following argument concerning Exhibit 1: [H]ere's the miraculous thing: As to [Exhibit 1], which deals with the issue of whether or not there was a valid assignment, I don't know how the notary and the person executing it can be so clairvoyant that on November 27, 2006, they're notarizing the accuracy of the document that contains on the final page a document dated March 13, 2007. So while they may be admissible as to form, I think this Court has the right to determine the credibility and the weight to be given to those documents. And very clearly ... [Exhibit 1] could not have been executed properly, in proper form, unless you have a notary and the person executing it in 5

November of 2006, and they anticipate a March 13, 2007 letter. And that document, if the Court gives no credibility to that document, that's the document that establishes whether this claim was ever properly assigned to; and, therefore, that [PCS] has any standing to be bringing this lawsuit. PCS' counsel made the following response: [PCS' counsel]: Judge, you know, the

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