Midland Funding LLC, et al., Respondents,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-1887

Midland Funding LLC, et al.,
Respondents,

vs.

Joy Ford,
Appellant.

Filed April 20, 2020
Affirmed
Reilly, Judge

Ramsey County District Court
File No. 62-CV-18-8184

Derrick N. Weber, Stephanie S. Lamphere, Katie D. Figgins, Messerli & Kramer, P.A.,
Plymouth, Minnesota (for respondents)

Darren B. Schwiebert, DBS Law LLC, Minneapolis, Minnesota (for appellant)

Considered and decided by Reilly, Presiding Judge; Connolly, Judge; and Hooten,
Judge.
U N P U B L I S H E D O P I N I O N
REILLY, Judge
Respondent-creditor’s-assignee sued appellant -debtor to collect a $508.52 unpaid
credit card bill. The district court granted summary judgment to respondent -assignee on
its breach-of-contract claim and appellant’s counterclaims against respondent-assignee and
respondent-assignee’s counsel under the Fair Debt Collection Practices Act (FDCPA).

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Appellant argues that the district court (1) abused its discretion by ruling that certain
evidence was properly authenticated and admissible under Minn. R. Evid. 803(6); (2) erred
in concluding that respondent -assignee had standing; (3) erred by granting summary
judgment in favor of respondent -assignee on its breach -of-contract claim; (4) erred by
granting summa ry judgment in favor of respondents, dismissing her FDCPA
counterclaims; (5) abused its discretion by denying her motion to amend her counterclaim;
and (6) abused its discretion by denying her motion for additional discovery unde r Minn.
R. Civ. P. 56.04. We affirm.
FACTS
On June 13, 2016, Comenity Bank (Comenity) issued a credit card to Joy Ford. The
next day, Ford used the credit card to purchase several items, incurring a balance of
$161.90. Ford subsequently failed to make the minimum payment due on the account, and
a $27 late fee was assessed. Ford then made a $30 payment on the account on August 7,
2016, and made another purchase of $35.95 that same day. But Ford failed to ma ke any
more payments on the account , and on March 16, 2017, Ford’s accoun t was “closed and
charged-off.” At the time the account was closed, Ford owed a balance of $508.52.
In June 2017, Comenity transferred Ford’s account to respondent Midland Funding
LLC (Midland) .1 Midland then filed suit against Ford in conciliation cour t seeking to
recover the debt owed by Ford on the account. Following a trial, the conciliation court

1 In addition to Ford’s account, Midland purchased “a pool of charged -off accounts” from
Comenity.

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concluded that Midland was entitled to recover $508.52 and ordered Ford to pay that
amount plus the $85 filing fee.
In December 2018, Ford removed the ca se to district court. Ford also filed a
counterclaim against Midland and respondent Messerli & Kramer P.A., 2 the law firm
representing Midland in its debt -collection action against Ford, alleging that respondents
violated several provisions of the FDCPA. See 15 U.S.C. §§ 1692-1692p (2018).
Respondents moved for summary judgment. Shortly thereafter, Ford moved to
amend her counterclaim to add an additional FDCPA clai m under 15 U.S.C. § 1692f ,
alleging that Midland failed to comply with sections 131(a) and 131(b) of its 2015 United
States Government’s Consent Order (consent order). Ford filed a motion to compel
discovery, and to postpone the summary -judgment hearing until the additional discovery
was completed. Ford also filed a motion for partial summary judgment on her FDCPA
counterclaims.
The district court granted summary judgment in favor of Midland on its breach-of-
contract claim. The district court also granted respondents’ motion for summary judgment,
dismissing Ford’s counterclaims. Finally, the district court denied Ford’s motion to
postpone the summary -judgment hearing under rule 56.04, and denied, as moot, Ford’s
motions to compel discovery and amend the counterclaim. This appeal follows.

2 Midland and Messerli & Kramer P.A. shall hereinafter be collectively referred to as
“respondents.”

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D E C I S I O N
Summary judgment is appropriate if the moving party shows that there is no genuine
issue of material fact and that the movant is entitled to judgment as a matter of law. Minn.
R. Civ. P. 56.01. This court reviews a district court’s summary-judgment decision de novo,
assessing whether any genuine issues of material fact exist and whether the district court
misapplied the law. Melrose Gates, LLC v. Moua, 875 N.W.2d 814, 819 (Minn. 2016) .
We view the evidence in the light most favorable to the nonmoving par ty and resolve
doubts regarding the existence of material facts in that party’s favor. Senogles v. Carlson,
902 N.W.2d 38, 42 (Minn. 2017).
I. The district court did not abuse its discretion by ruling that certain evidence
was properly authenticated and admissible under Minn. R. Evid. 803(6).

Ford challenges the admissibility of the affidavits and supporting documents
submitted by Midland in support of its summary -judgment motion. 3 While a district
court’s summary-judgment decision is reviewed de novo, McKee v. Laurion, 825 N.W.2d
725, 729 (Minn. 2013), this court reviews “a district court’s evidentiary rulings, including
rulings on foundational reliability, for an abuse of discretion,” Doe 76C v. Archdiocese of
St. Paul and Minneapolis , 817 N.W.2d 150, 164 (Minn. 2012). Decisions on foundation
are within the sound discretion of the district court, and a district court may allow a
qualified witness other than the custodian of a business record to establish foundation for

3 At the outset, we note that Ford consistently relies on unpublished decisions to support
her various arguments. But unpublished decisions are not precedential. See Minn. Stat.
§ 480A.08, subd. 3(c) (2018); see also Dynamic Air, Inc. v. Bloch , 502 N.W.2d 796, 800
(Minn. App. 1993).

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admissibility of another business’s records. Minn. R. Evid. 803(6), 901(a); Nat’l Tea Co.
v. Tyler Refrigeration Co. , 339 N.W.2d 59, 62 (Minn. 1983) (holding that district court
should be guided by certain principles relating to whether evidence was prepared for
presentation in case being tried, whether report was made by independent agency or hired
agency, when report was made, and nature of organization preparing the report).
A document must be authenticated or identified to be admissible. Minn. R. Evid.
901(a). This requirement “is satisfied by evidence sufficient to support a finding that the
matter in question is what its proponent claims.” Id. The rules of evidence provide several
examples of the procedure for authenticating or identifying evidence, including testimony
of a knowledgeable witness “that a matter is what it is claimed to be.” Id. at (b)(1).
Here, in order to authenticate the documents supporting its motion for summary
judgment, Midland submitted the affidavits of a legal specialist employed with Midland,
and the Chief Financial Officer (CFO) of Comenity. Ford argues that these affidavits do
not satisfy the requirement of Minn. R. Civ. P. 56.03(d) that supporting affidavits be made
on personal knowledge setting forth such facts as would be admissible in evide nce. We
disagree.
The CFO’s affidavit established that electronic and other records, including the bill
of sale, were transferred to Midland, and that the transferred records were kept by Comenity
in the course of regularly conducted business and were a p art of its regular business
practice. In addition, the legal specialist’s affidavit established that the attached cardholder
agreement, billing agreements, the CFO’s affidavit, and the bill of s ale were kept by
Midland in the course of regularl y conducted business activities and were made a part of

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Midland’s regular business practice, which was based upon her personal knowledge,
industry experience, and review of records prepared in the ordinary course of Midland’s
business practice. And the legal specialist testified that she was provided with these records
as part of her position at Midland as legal s pecialist, and that she was “familiar with and
trained on the manner and method by which [Midland] creates and maintains its business
record pertaining to [ Ford’s] account.” The affiants demonstrate that they reviewed the
relevant documents and had knowledge that Ford owed an amount to Comenity and that
Comenity sold the account to Midland. Ford is unable to demonstrate that the district court
abused its di scretion in concluding that the challenged affidavits were properly
authenticated.
Ford further contends that although the legal specialist, as Midland’s agent, may be
qualified to offer documents as to Midland’s business, she is not qualified to offer
documents or business records of Comenity because she lacks sufficient firsthand
knowledge of their business practices.4 But under rule 803(6):
Business records are admissible under the business -records
exception if the custodian or another qualified witness can
testify that the records were (1) made by a person with personal
knowledge of the matters recorded and a business duty to
report accurately or from information transmitted by a person
with such knowledge, (2) made at or near the time of the

4 Ford also argues that a document attached with the bill of sale, which is referred to by the
district court as a “summary spreadsheet,” should be excluded because it was a document
created just for litigation. In the alternative, Ford contends that the “summary spreadsheet”
should be excluded under Minn. R. Evid. 1006 because respondents failed to produce the
original document. But Ford failed to raise these arguments below and, therefore, they are
not properly before us . See Thiele v. Stich , 425 N.W.2d 580, 582 (Minn. 1988) (st ating
that a “reviewing court must generally consider only those issues that the record shows
were presented and considered by the [district] court”).

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recorded event, (3) kept in the course of a regularly conducted
business activity, and (4) made as par t of the regular practice
of that business activity.

In re Child of Simon , 662 N.W.2d 155, 160 (Minn. App. 2003) (citing Minn. R. Evid.
803(6)). “[O]ne business entity may submit the records of another business entity to
establish a proposition at trial.” Nat’l Tea, 339 N.W.2d at 61 -62 (citation omitted). The
actual custodian need not testify, but the person laying foundation must be familiar with
how the business compiles its documents. Id. at 62.
In this case, the legal specialist’s affidavit states that she reviewed the billing
statements between Comenity and Ford, the bill of s ale between Comenity and Midland,
the affidavit of s ale by Comenity, and the cardholder agreement be tween Ford and
Comenity. The legal specialist ’s affidavit also states that her statements are “based upon
personal knowledge of those account records maintained on [Midland’s] behalf,” that she
has access to and has “reviewed the electronic records pertaining to the account maintained
by [Midland],” and that she is “authorized to make this affidavit on [Midland ’s] behalf.”
The affidavit further states that the electronic records the legal specialist reviewed “consist
of data acquired from the seller when [Midland] purchased the account, together with
records generated by [Midland] in connection with servicing the account since the date the
account was purchased by [Midland].” The affidavits submitted by Midland satisfy the
requirements of rule 803(6). Therefore, the district court did not abuse its discretion by
determining that the challenged affidavits provided sufficient foundation for the documents
supporting Midland’s summary-judgment motion.

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II. The district court did not err when it determined that Midland had standing
to sue.

Ford challenges the district court’s conclusion that Midland had standing to pursue
its claim against Ford.5 This court reviews matters of standing de novo. See In re Gillette
Children’s Specialty Healthcare, 883 N.W.2d 778, 784 (Minn. 2016).
“Standing is a legal requirement that a party have a sufficient stake in a justiciable
controversy to seek relief from a court.” McCaughtry v. City of Red Wing , 808 N.W.2d
331, 338 (Minn. 2011) (quotation omitted). A standing analysis focuses on whether the
plaintiff is the proper party to bring a particular lawsuit. Rukavina v. Pawlenty, 684 N.W.2d
525, 531 (Minn. App. 2004), review denied (Minn. Oct. 19, 2004). To establish standing,
a plaintiff must have a sufficient personal stake in a justiciable controversy. State by
Humphrey v. Philip Morris Inc. , 551 N.W.2d 490, 493 (Minn. 1996) . A sufficient stake
may exist if the party has suffered an “injury -in-fact” or if the legislature has conferred
standing by statute. Id.
Ford argues that because the “summary spreadsheet” 6 document and the legal
specialist’s affidavit are inadmissible, Midland failed to provide admissible evidence that
it is the present owner of the account in controversy. Thus, Ford argues that the district

5 We note that standing is a threshold consideration in determining whether a litigant is
entitled to have courts determine the merits of a dispute. Annandale Advocate v. City of
Annandale, 435 N.W.2d 24, 27 (Minn. 1989). This is because jurisdiction is essential to a
court even hearing a matter. See Minn. R. Civ. P. 12.08(c) (requiring dismissal if court
lacks jurisdiction). But because the standing issue here is dependent upon the admissibility
of the challenged affidavits and related documents, we address it after the evidentiary issue.
6 Ford refers to this document as the “data printed” document.

9
court erred in concluding that Midland had standing to bring suit against Ford because
Midland failed to establish that it suffered an injury-in-fact.7
As addressed above, the legal specialist’s affidavit was properly authenticated and
admitted under the business -records exception to the hearsay rule. And as noted
previously, Ford failed to challenge the admissibi lity of the “summary spreads heet”
document below. The legal specialist ’s affidavit and attache d documents, which include
the bill of sale transferring the debt to Midland, establish that Midland suffered an injury -
in-fact. The district court did not err by concluding that Midland had standing to bring suit
against Ford.
III. The district court did not err by granting summary judgment in favor of
Midland on its breach-of-contract claim.

Ford challenges the district court’s decision that no genuine issue of material fact
exists and that Midland is entitled to summary judgment on its breach -of-contract claim.
A genuine issue of material fact exists “when reasonable persons might draw different
conclusions from the evidence presented.” DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn.
1997). “[T]here is no genuine issue of material fact . . . when the nonmoving party presents
evidence which merely creates a metaphysical doubt as to a factual issue.” Id. at 71. For
summary judgment, the nonmoving party may not rely upon mere averments in the
pleadings or unsupported allegations, but must come forward with specific facts to satisfy

7 Respondents argue that Ford waived this argument because standing is an affirmative
defense, which she failed to assert in her responsive pleadings. But standing may be raised
at any time and cannot be waived. In re Horton, 668 N.W.2d 208, 212 (Minn. App. 2003).

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its burden. Bebo v. Delander , 632 N.W.2d 732, 737 (Minn. App. 2001) , review denied
(Minn. Oct. 16, 2001).
“A contract consists of a binding promise or set of promises. A breach of contract
is a failure, without legal excuse, to perform any promise that forms the whole or part of
the contract.” Lyon Fin. Servs., Inc. v. Ill. Pater & Copier Co. , 848 N.W.2d 539, 543
(Minn. 2014) (footnote and citation omitted). To prevail on a breach-of-contract claim, the
plaintiff must show (1) the formation of a contract , (2) the plaintiff’ s performance of
conditions precedent to its right to demand performance from the d efendant, and (3) the
defendant’s breach of the contract. Id.
Ford argues that she presented a genuine issue of material fact because she claimed
that she never entered into a credit card agreement with Midland or Comenity. To support
her claim, Ford points to her sworn affidavit in which she “denied owing any money to
Midland on this account, denied that she had ever agreed to or even seen the generic
cardholder agreement, and denied that she had received or retained any of the account
statements.” But respondents submitted affidavits, a bill of sale, a cardholder agreement,
and account statements with Ford’s name and address, establishing that Ford had a credit
card account with Comenity, that she owed approximately $500 on the account, and that
Midland purchased Ford’s account from Comenity. This evidence supports the district
court’s determination that Midland conclusively established its breach-of-contract claim.
Other than her own affidavit, Ford submitted no evidence disputing Midland’s claim. The
general assertions contained in Ford’s self-serving affidavit are insufficient to create a
genuine issue of material fact. See Nicollet Restoration, Inc. v. City of St. Paul, 533 N.W.2d

11
845, 848 (Minn. 1995) (stating that “general assertions” are not enough to create a genuine
issue of material fact). Accordingly, the district court did not err by granting summary
judgment in favor of Midland on its breach-of-contract claim against Ford.
IV. The district court did not er r by granting summary judgment in favor of
respondents, dismissing Ford’s counterclaims under the FDCPA.

Ford contends that the district court erred by granting summary judgment in favor
of respondents, dismissing her counterclaims under the following provisions of the
FDCPA: 15 U.S.C. §§ 1692e(3), 1692e(14), 1692f.
A. Claim under 15 U.S.C. § 1692e(3)
The FDCPA provides that “[a] debt collector may not use any false, deceptive, or
misleading representation or means in connection with the collection of any debt.” 15
U.S.C. § 1692e . This includes “ [t]he false representation or implication that . . . [a]
communication is from an attorney.” 15 U.S.C. § 1692e(3). Federal courts have held that
a debt collection letter from a law firm or lawyer violates section 1692e(3) if an attorney
was not “directly and personally involved” with the debtor’s account —such as reviewing
the debtor’s file —before the letter was sent. See, e.g., Avila v. Rubin , 84 F.3d 222, 228
(7th Cir. 1996); Taylor v. Perrin, Landry, deLaunay & Durand , 103 F.3d 1232, 1 237-38
(5th Cir. 1997).
Ford argues that the district court erred by granting summary judgment in favor of
respondents, dismissing her claim under 15 U.S.C. § 1692e(3). We disagree. Respondents
submitted documents demonstrating that Messerli & Kramer P.A. conducted a thorough
and meaningful review of Ford’s account -documentation prior to signing the complaint.

12
The documents reflect that this review included an examination of the name on Ford’s
account, the last four digits of the account number associated with the debt at the time it
was charged off, and the claimed amount, caption, venue, principal balance, account
number, purchased debt, bankruptcy, fraud claim, and applicable statute of limitation. This
evidence supports the district court’s determination that respondents complied with section
1692e(3). Although Ford claims that Messerli & Kramer P.A. violated section 1692e(3)
by failing to review the full chain of title transferring the debt from Comenity to Midland,
Ford cites no published casela w requiring Messerli & Kramer P.A. to conduct such a full
chain of title review.8
Ford also contends that the district court’ decision is erroneous because it relied on
Exhibit B to one of Messerli & Kramer P.A.’s attorney’s declarations. Ford argues that the
district court’s reliance on this documentation is improper because it was inadmissible
hearsay. But as the district court noted, although the “exhibit was not attached when it was
originally filed” by respondents, it was submitted upon inquiry by the district court. The
district court determined t hat respondents “stated that it was its intention to attach the
exhibit to the declaration,” and “Ford did not object to it being submitted.” Becau se Ford
failed to object to the admission of Exhibit B below, she has forfeited her argument that
the documents submitted by respondents were inadmissible. Estate of Hartz v. Nelson, 437
N.W.2d 749, 752 (Minn. App. 1989), review denied (Minn. July 12, 1989); see also Minn.
R. Civ. P. 51.03, .04; State v. Beaulieu, 859 N.W.2d 275, 278 (Minn. 2015) (clarifying that

8 In any event, we note that the chain of title was only one link long: from Comenity to
Midland.

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“forfeiture is the failure to make the timely assertion of a right” (quotation omitted)). The
documents submitted by respondents support the dis trict court’s determination that
respondents complied with 15 U.S.C. § 1692e(3). The district court did not err by granting
summary judgment in favor of respondents, dismissing Ford’s counterclaim under section
1692e(3).
B. Claim under 15 U.S.C. § 1692e(14)
Next, Ford argues that the district court erred by dismissing her claim under 15
U.S.C. § 1692e(14), which prohibits a debt collector from using “any false, deceptive, or
misleading representation or means in connection with the collection of any debt,”
including, the “use of any business, company, or organization name other than the true
name of the debt collector’s business, company, or organization.”
In her counterclaim, Ford alleged that respondents violated section 1692e(14) when
Midland capt ioned its identity as “Midland Funding LLC as successor -in-interest to
Comenity Bank,” rather than using its true name of Midland Funding LLC. But in
analyzing section 1692e(14), the United States Supreme Court stated that “[a]lthough the
FDCPA does not s ay what a true name is, its import is straightforward: A debt collector
may not lie about his institutional affiliation.” Sheriff v. Gillie , 136 S. Ct. 1594, 1602
(2016) (quotation omitted).
Here, as the district court observed , “Midland did not lie abou t its institutio nal
affiliation.” Midland’s caption used its true name, “Midland Funding LLC,” and then
identified itself as the “successor -in-interest” of the Comenity debt, which is also true.
There is nothing deceptive or misleading about the title used by Midland.

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Ford argues that the “FDCPA is a strict liability statute” with “no separate
materiality requirement for a violat ion of [section] 1692e(14).” Thus, Ford argues that
Midland violated section 1692e(14) by simply not using its “true name.” We disagree.
The Eighth Circuit Cou rt of Appeals has joined other federal circuit c ourts in
recognizing a materiality requirement for claims brought under 15 U.S.C. § 1692e. See
Hill v. Accounts Receivable Servs., LLC, 888 F.3d 343, 346-47 (8th Cir. 2018). In Hill, the
court adopted the reasoning of the Seventh Circuit Court of Appeals where the Seventh
Circuit stated that the FDCPA “‘is designed to provide information that helps consumers
to choose intelligently, . . . immaterial information neither contributes to that objective (if
the statement is correct) nor undermines it (if the statement is incorrect).’” Id. (quoting
Hahn v. Triumph Partnerships LLC , 557 F.3d 755, 757 -58 (7th Cir. 2009)). Moreover,
Ford specifically pleaded that Midland’s alleged violation “constitutes a material
violation” of the FDCPA, which indicates that she understood that a violation of section
1692e(14) must be material in order to be actionable. (Emphasis added.) Midland’s failure
to use its “true name” was not a material violation of section 1602e(14) because an
unsophisticated consumer would not be misled by the alleged violation. Accordingly, the
district court did not err by dismissing Ford’s claim under 15 U.S.C. § 1692e(14).
C. Claim under 15 U.S.C. § 1692f
The FDCPA provides that “[a] debt collector may not use unfair or unconscionable
means to collect or attempt to collect any debt,” which includes, but is not limited to, the
“collection of any amount (including any interest, fee, charge, or expense incidental to the

15
principal obligation) unless such amount is expressly authorized by the agreement creating
the debt or permitted by law.” 15 U.S.C. § 1692f(1).
Ford argues that respondents’ conduct violated section 1692f by (1) failing to
comply with Minn. Stat. § 358.116 (2018)9; and (2) failing to comply with a September 23,
2016, Ramsey County Amended Standing Order (2016 standing order).
1. Minn. Stat. § 358.116
Section 358.116 of the Minnesota Statutes provides:
Unless specifically required by court rule, a pleading,
motion, affidavit, or other document filed with a court of the
Minnesota judicial branch, or presented to a judge or judicial
officer in support of a request for a court order, warrant, or
other relief, is not required to be notarized. Signing a
document filed with the court or presented to a judge or judicial
officer constitutes “verification upon oath or affirmation” as
defined in section 358.52 , without administration of an oath
under section 358.07, provided that the signature, as defined
by court rules, is affixed immediately below a declaration
using substantially the following language: “I declare under
penalty of perjury that everything I have stated in this
document is true and correct.” In addition to the signature, the
date of signing and the county and state where the document
was signed shall be noted on the document.

Minn. Stat. § 358.116.
Ford argues that respondents violated 15 U.S.C. § 1692f(1) when they failed to
comply with section 358.116 by omitting, from the Statement of Claim and Summons, the
state and county where the document was signed. But section 1692f prohibits the use of

9 Minn. Stat. § 358.116 was amended in 2018. 2018 Minn. Laws ch. 176, art. 2, § 3, at
268. Although the 2017 version of the statute was in effect at the time Midland filed its
Statement of Claim and Summons, we cite to the most recent version because it was not
amended in relevant part.

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“unfair or unconscionable means to collect or attempt to collect any debt.” 15 U.S.C. §
1692f (emphasis adde d). As the district court determined , although Midland’s attorney
“did not include the county when he signed the Statement of Claim and Summons, such a
mistake cannot be seen as ‘unfair or unconscionable.’” Therefore, the district court did not
err by granting summary judgment in favor of respondents, dismissing Ford’s claim under
15 U.S.C. § 1692f(1).
2. 2016 standing order
Ford also argues that respondents violated 15 U.S.C. § 1692f(1) by “failing to
comply with the requirements” of the 2016 standing order. But the complaining party has
the obligation to provide the appellate court with a record sufficient to show any alleged
error. See Noltimier v. Noltimier, 157 N.W.2d 530, 531 (Minn. 1968) (dismissing appeal
for an inadequate record, stating both that “[e]rror cannot be presumed” an d that the
appellant has the burden to provide an adequate record on appeal). Our review of the record
reveals that the 2016 standing order is not part o f the record on appeal, and Ford’s brief
contains no citations to the 2016 standing order in the record. And the 2016 standing order
does not appear to be available online, perhaps because Ramsey County issued a new
standing order for consumer credit case types on May 14, 2019, that “supersedes all
previous standing or administrative orders related to con sumer credit cases.” Because the
2016 standing order is not part of the record before this court, it is impossible for us to
determine whether the district court erred by concluding that the 2016 standing order does
not apply to conciliation court. See Truesdale v. Friedman, 127 N.W.2d 277, 279 (Minn.
1964) (stating that a record is adequate if it is “sufficient to show the alleged errors and all

17
matters necessary for consideration of the questions presented”). Ford, therefore, cannot
establish that the district court erred by granting summary judgment in favor of
respondents, dismissing her claim under 15 U.S.C. § 1692f.
V. The district court did not abuse its discretion by denying Ford’s motion to
amend her counterclaim.

Ford challenges the district court’s denial of her motion to amend her counterclaim.
We review a district court’s decision to deny amendments to pleadings for an abuse of
discretion. Johns v. Harborage I, Ltd., 664 N.W.2d 291, 295 (Minn. 2003).
Under Minn. R. Civ. P. 15.01, “a party may amend a pleading only by leave of court
or by written consent of the adverse party; and leave shall be freely given,” except when it
would prejudice the opposing party. See Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.
1993). In TCF Bank & Sav. F.A. v. Marshall Truss Sys., Inc., this court held that a district
court “must” rule on a motion to amend a complaint and that a failure to rule on such a
motion is prejudicial error. 466 N.W.2d 49, 54 (Minn. App. 1991), review denied (Minn.
Apr. 29, 1991), overruled on other grounds by Lloyd F. Smith Co. v. Den-Tal-Ez, Inc., 491
N.W.2d 11 (Minn. 1992); see also Voicestream Minneapolis, Inc. v. RPC Props., Inc., 743
N.W.2d 267, 272 (Minn. 2008) (acknowledging that the “court of appeals has required a
district court to rule on a motion to amend”).
Citing TCF Bank, Ford argues that her case must be reversed and remanded because
the district court failed to rule on the merits of her motion to amend. But in TCF Bank, the
district completely failed to rule on the motion to amend. In contrast, the district court here
explicitly denied the “motion to amend the counterclaim [as] moot.” Because the district

18
court denied the motion, its decision is reviewable for an abuse of discretion. See
Voicestream, 743 N.W.2d at 272 (stating that a denial of a motion to amend “would have
been explicit and reviewable for an abuse of discretion”).
Ford also argues that the district court abused its discretion by denying the motion
to amend as moot b ecause “the fact that the district court granted summary judgment on
respondents’ debt claim does not moot the FDCPA claims asserted in the proposed
amendment to the counterclaim.” (Emphasis omitted.) We agree that the granting of
summary judgment in favor of respondents did not necessarily moot the motion to amend
because, although Ford’s pleaded claims under the FDCPA did not survive summary
judgment, the claims sought to be added might have. See Kahn v. Griffin , 701 N.W.2d
815, 821 (Minn. 2005) (stati ng that a case is moot if there is no longer a justiciable
controversy for the court to decide). But a motion to amend is properly denied “when the
additional claim could not survive summary judgment.” Voicestream, 743 N.W.2d at 272.
Here, by denying Fo rd’s motion to amend as “moot,” the district court implicitly
determined that the claim would not survive summary judgment. Indeed, Ford sought to
amend her counterclaim to include the two additional FDCPA violations by Midland. First,
Ford claimed that Midland violated the con sent order by failing to produce the following
required informati on discussed in paragraph 131(a): “A certified or otherwise properly
authenticated copy of each bill of sale or other document evidencing the transfer of
ownership of the Debt at the time of Charge-off to each successive owner . . . .” But an
authenticated copy of the bill of sale was provided by respondents. Thus, there is no

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genuine issue of material facts as to whether respondents produced the information
required by paragraph 131(a) of the consent order.
Second, Ford claimed that Midland violated paragraph 131(b) of the consent order
by “failing to communicate to the consumer the required notice prior to filing the
conciliation court action.” But in its opposition to Ford’s motion to amend, respondents
submitted the pre-legal notification letter that was sent to Ford prior to the commencement
of the conciliation-court action. As the district court implicitly determined, that letter was
in compliance with paragraph 131(b) of the consent order. B ecause Ford’s additional
claims would not have survived summary judgment, the district court did not abuse its
discretion by denying Ford’s motion to amend.
VI. The district court did not abuse its discretion by denying Ford’s motion for
additional discovery under Minn. R. Civ. P. 56.04.

Finally, Ford challenges the district court’s denial of her motion under Minn. R. Civ.
P. 56.04. Under that rule, if the nonmovant shows by affidavit that, for specified reasons,
it cannot present facts essential to justify the party’s opposition, the district court may defer
consideration of the motion or deny it, allow additional time to obtain affidavits or take
discovery, or issue any other appropriate order. Minn. R. Civ. P. 56.04 . There is a
“presumption in favor of granting continuances to allow sufficient time for discovery.”
Cargill Inc. v. Jorgenson Farms , 719 N.W.2d 226, 231 (Minn. App. 2006) . A district
court’s decision to rule on a summary -judgment motion without allowin g additional
discovery is reviewed for an abuse of discretion. Molde v. CitiMortgage, Inc., 781 N.W.2d
36, 45 (Minn. App. 2010).

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The district court must consider two factors in determining whether to grant a
motion for a continuance: (1) whether the nonmoving party is seeking further discovery in
the good-faith belief that material facts will be uncovered or merely engaging in a fishing
expedition; and (2) whether the nonmoving party has been diligent in obtaining or seeking
discovery. City of Maple Grove v. Marketline Constr. Capital, LLC, 802 N.W.2d 809, 818
(Minn. App. 2011). But when discovery would not assist the district court or change the
result of the summary-judgment motion, the court does not abuse its discretion by granting
the summary-judgment motion without granting the continuance. QBE Ins. Corp. v. Twin
Homes of French Ridge Homeowners Ass’n, 778 N.W.2d 393, 400 (Minn. App. 2010).
Ford argues that “[i]t was arbitrary and unfair for the [district] court to restrict
discovery in this case based on what the . . . court deemed the ‘simplicity’ of the claims
and the relatively small dollar amount in controversy.” We disagree. Minn. R. Civ.
P. 1 provides that “[i]t is the responsibility of the court and the parties to examine each
civil action to assure that the process and the costs are proportionate to the amount in
controversy and the complexity and importance of the issues.” And rule 26.02(b) provides:
Parties may obtain discovery regarding any nonprivileged
matter that is relevant to any party’s claim or defense and
proportional to the needs of the case, considering the
importance of the issues at stake in the action, the amount in
controversy, the parties’ relative access to relevant
information, the partie s’ resources, the importance of the
discovery in resolving the issues, and whether the burden or
expense of the proposed discovery outweighs its likely benefit.

Minn. R. Civ. P. 26.02(b).

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Here, as the district court determined , the amount in controversy concerns a $500
credit card debt, and the amount in controversy in Ford’s counterclaim consist s of alleged
damages of approximately $1,000, plus attorney fees. Moreover, as analyzed above, the
claims are relatively simple. But despite the simple claims, and the insubstantial amount
in controversy, the district court record is extensive, containing over 100 entries. As the
district court found, “[t]o allow additional written discovery or to allow depositions, would
add to the disproportionate discovery that has already taken place.”
The size of the district court record, and the lengthy memorandum Ford filed in
opposition to respondents’ summary -judgment motion, also indicates that Ford had
sufficient time and information to oppose the summary -judgment motion. And in light of
the straight -forward issues presented in this case, the district court did not abuse its
discretion by determining that Ford’s request for additional discovery amounts to merely a
“fishing expedition.” Fina lly, as the district cou rt noted, “it is difficult” to see how the
requested discovery would change the results of the summary -judgment motion. The
district court properly considered the factors in entertaining Ford’s rule 56.04 motion and
determined that additional discovery wa s not warranted. Ford has not shown that the
district court’s decision was an abuse of discretion.
Affirmed.