Asset Acceptance v. Guimaraes

2015 UT App 83
THE UTAH COURT OF APPEALS
A SSET A CCEPTANCE, LLC,
Plaintiff and Appellee,
v.
EDISON GUIMARAES,
Defendant and Appellant.
Per Curiam Decision
No. 20140244-CA
Filed April 9, 2015
Second District Court, Farmington Department
The Honorable David M. Connors
No. 129705443
Edison Guimaraes, Appellant Pro Se
Gregory M. Constantino, Attorney for Appellee
Before JUDGES GREGORY K. O RME, JAMES Z. D AVIS, and
J. F REDERIC VOROS JR .
PER CURIAM:
¶1 	Edison Guimaraes appeals a summary judgment in favor
of Asset Acceptance, LLC (Asset Acceptance) in a debt collection
case. We affirm.
¶2 	We review a grant of summary judgment for correctness,
as a question of law, giving no deference to the district court’s
legal conclusions. See Basic Research, LLC v. Admiral Ins. Co., 2013
UT 6, ¶ 5, 297 P.3d 578. Summary judgment is appropriate only
when “there is no genuine issue as to any material fact . . . and
the moving party is entitled to a judgment as a matter of law.”
Utah R. Civ. P. 56(c). Rule 56(e) of the Utah Rules of Civil
Procedure states, in relevant part,

Asset Acceptance, LLC v. Guimaraes
When a motion for summary judgment is made
and supported as provided in this rule, an adverse
party may not rest upon the mere allegations or
denials 	of 	the 	pleadings, 	but 	the 	response, 	by
affidavits or as otherwise provided in this rule,
must set forth specific facts showing that there is a
genuine 	issue 	for 	trial. 	Summary 	judgment, 	if
appropriate, shall be entered against a party failing
to file such a response.
¶3 	Guimaraes 	claims 	both 	that 	the 	summary 	judgment
motion was “premature” and that it was barred by the equitable
doctrine of laches because the case had been abandoned. Neither
claim has merit. Asset Acceptance filed the summary judgment
motion after the case had been pending for roughly one year and
it was not premature. Although the district court had given
notice 	that 	the 	case 	was 	subject 	to 	dismissal 	for 	lack 	of
prosecution, Asset Acceptance’s subsequent filing of the motion
for summary judgment demonstrated that the case had not been
abandoned and the case was not barred by laches.
¶4 	The district court did not err in failing to hold a hearing
on 	the 	summary 	judgment 	motion. 	Guimaraes 	quotes 	the
portion of rule 7(e) of the Utah Rules of Civil Procedure stating
that the trial court “shall grant a request for a hearing on a
motion under Rule 56 . . . unless the court finds that the motion
or opposition to the motion is frivolous or the issue has been
authoritatively decided.” Utah R. Civ. P. 7(e). However, the
language immediately preceding that statement clarifies that a
party must request a hearing in the motion, in a memorandum,
or in the request to submit for decision. 	Id. Neither party
requested a hearing on the summary judgment motion, the
district court did not deny a request for a hearing, and the court
did not err by not holding a hearing.
¶5 	The district court also did not err in granting the motion
for summary judgment, which was supported by the affidavit of
20140244-CA 	2 	2015 UT App 83

Asset Acceptance, LLC v. Guimaraes
an Asset Acceptance employee “familiar with the manner and
method by which Asset Acceptance, LLC creates and maintains
its 	business 	records.” 	The 	affidavit 	stated 	that 	the 	records
demonstrated that Asset Acceptance “purchased the receivable
at issue in this case from WELLSFARGO-WF PERSONAL LCA,”
stated the original account number, and stated the amount
claimed based upon the “records associated with the receivable.”
Guimaraes’s arguments that the affiant was anonymous and that
the affidavit was insufficient to establish the facts stated therein
lack merit. Contrary to Guimaraes’s assertion on appeal, the
district court was not required to make findings of fact and
conclusions 	of 	law 	on 	the 	summary 	judgment 	because 	the
motion was not based upon alternative theories. See Utah R. Civ.
P. 52.
¶6 	Finally, 	the 	district 	court 	did 	not 	err 	in 	denying
Guimaraes’s request for a continuance of a status conference for
the case, and Guimaraes was not prejudiced by that denial.
¶7 	Affirmed.
20140244-CA 	3 	2015 UT App 83