                      NOTICE: NOT FOR OFFICIAL PUBLICATION.
  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                  AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                     IN THE
              ARIZONA COURT OF APPEALS
                                 DIVISION ONE


                MIDLAND FUNDING LLC, Plaintiff/Appellee,

                                         v.

                   YARED AMELGA, Defendant/Appellant.

                              No. 1 CA-CV 15-0510
                                FILED 10-20-2016


            Appeal from the Superior Court in Maricopa County
                           No. CV2013-095695
                 The Honorable David King Udall, Judge

                                   AFFIRMED


                                    COUNSEL

Bursey & Associates PC, Tucson
By Barry Bursey, Peter M. Balsino
Counsel for Plaintiff/Appellee

Yared Amelga, Phoenix
Defendant/Appellant



                        MEMORANDUM DECISION

Judge Donn Kessler delivered the decision of the Court, in which Presiding
Judge Kenton D. Jones and Judge Randall M. Howe joined.
                          MIDLAND v. AMELGA
                           Decision of the Court

K E S S L E R, Judge:

¶1             Yared Amelga (“Amelga”) appeals the entry of judgment
against him in a collection action arising from his credit card debt. He
argues the superior court erred by applying the wrong statute of
limitations, and he challenges the sufficiency of the evidence supporting the
judgment. For the following reasons, we affirm.1

               FACTUAL AND PROCEDURAL HISTORY

¶2            In 2013, Midland Funding LLC (“Midland”) sued Amelga for
breach of contract, alleging a default on a credit card account with Citibank,
Midland’s predecessor-in-interest.        Midland alleged Amelga owed
approximately $13,000. Amelga denied knowledge of the relevant account
and later claimed he presumed the balance had been expunged due to
Citibank’s alleged failure to communicate with him for the previous five
years. Amelga moved for summary judgment, arguing in part that Arizona
Revised Statutes (“A.R.S.”) § 12-543 (2016)2 barred Midland’s claims
because Midland could not produce a signed contract,3 and that Midland’s
proffered evidence was inadmissible. The court denied his motion.

¶3            At trial, the parties stipulated to the admission of all exhibits.
Midland produced the bill of sale and assignment evidencing its purchase
of Amelga’s account from Citibank; documents from the sale showing
Amelga’s personal information associated with the account and the
account’s balance, last payment date, and opening and charge off dates;
billing statements Citibank had sent Amelga; and notices of new ownership

1      At trial, the superior court amended Midland’s complaint because it
had misidentified Amelga’s wife. See Ariz. R. Civ. P. 15(b) (allowing
amendment of pleadings to conform to the evidence). However, the court
did not enter judgment against Amelga’s wife because she was neither
present nor served. See Ariz. R. Civ. P. 4(f) (providing appearance in open
court “shall have the same force and effect as if a summons had been issued
and served”), 5(b) (stating plaintiff may only proceed against served
defendants). Accordingly, we affirm the superior court’s judgment as
against Amelga in his sole and separate capacity only.

2      We cite the current version of statutes unless changes material to this
decision have occurred.

3     Section 12-543 provides a three-year limitation period for actions in
which the indebtedness is not evidenced by a contract in writing.


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                          MIDLAND v. AMELGA
                           Decision of the Court

and collection that Midland’s credit manager had sent Amelga. Amelga
did not object to any of the exhibits, and he did not deny entering into a
contract for the credit card account. He only disputed the amount owed,
but he did not provide any evidence of an alternative amount.

¶4            The superior court found Midland proved its breach of
contract claim beyond a preponderance of the evidence. Amelga timely
appealed. We have jurisdiction pursuant to A.R.S. § 12-2101(A)(1) (2016).

                                DISCUSSION

¶5          Amelga argues the superior court erred by applying the
wrong statute of limitations. He also asserts insufficient or inadmissible
evidence supported the judgment.

I.     Statute of Limitations

¶6              Amelga contends the superior court should have applied
A.R.S. § 12-543 rather than A.R.S. § 12-548 because Midland failed to prove
(1) the existence of a signed contract, or (2) that Amelga was a “cardholder”
pursuant to A.R.S. § 13-2101(2) (2016).4 We review a superior court’s
application of a statute of limitations de novo. Andrews ex rel. Woodard v.
Eddie’s Place, Inc., 199 Ariz. 240, 241, ¶ 1 (App. 2000).

¶7           Section 12-548 sets a six-year limit on actions for debt “if the
indebtedness is evidenced by or founded on either . . . [a] contract in writing
that is executed in this state [or a] credit card as defined in § 13-2101,
paragraph 3, subdivision (a).” A.R.S. § 12-548(A)(1)-(2) (emphasis added);




4       “‘Cardholder’ means any person who is either: (a) Named on the face
of a credit card to whom or for whose benefit the credit card is issued by an
issuer. (b) In possession of a credit card with the consent of the person to
whom the credit card was issued.” A.R.S. § 13-2101(2).




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                          MIDLAND v. AMELGA
                           Decision of the Court

see A.R.S. § 13-2101(3)(a).5 Thus, A.R.S. § 12-548 does not require proof of a
written contract if the plaintiff proves a credit card was the basis for the
debt.

¶8           Here, the parties stipulated to the admission of documents
showing Amelga entered into a contract for the credit card account. Amelga
did not dispute entering into the contract. The documents showed the
indebtedness was “evidenced or founded upon a credit card,” therefore the
superior court did not err in applying A.R.S. § 12-548 to Midland’s action.

II.    Sufficiency of the Evidence

¶9            Amelga asserts that no evidence, or alternatively that no
admissible evidence, supported the verdict. He argues: (1) the court’s
finding that he admitted to entering into the contract for the credit card
shifted the burden of proof, violating due process; (2) his admission did not
prove he was “[n]amed on the card” or was “in possession of the credit card
with the consent” of the person to whom it was issued as required by A.R.S.
§ 13-2101(2); and (3) Midland’s evidence was inadmissible hearsay. We
review a trial court’s ruling on the admissibility of evidence for abuse of
discretion, and we review purely legal issues de novo. State v. Newell, 212
Ariz. 389, 404, ¶ 73 (2006) (internal quotation marks and citations omitted).

¶10           As an initial matter, we will not address Amelga’s arguments
regarding admissibility of the evidence because Amelga stipulated to the
evidence’s admission. See Pulliam v. Pulliam, 139 Ariz. 343, 345-46 (App.
1984) (observing “counsel may stipulate as to evidentiary matters such as
the admission . . . of evidence” however “[a] party to an action cannot
stipulate to one thing and then later change her mind and withdraw her
consent”); see also Amparano v. ASARCO, Inc., 208 Ariz. 370, 374, ¶ 13 (App.




5       “Any instrument or device, whether known as a credit card, charge
card, credit plate, courtesy card or identification card or by any other name,
that is issued with or without fee by an issuer for the use of the cardholder
in obtaining money, goods, services or anything else of value, either on
credit or in possession or in consideration of an undertaking or guaranty by
the issuer of the payment of a check drawn by the cardholder, on a promise
to pay in part or in full therefor at a future time, whether or not all or any
part of the indebtedness that is represented by the promise to make
deferred payment is secured or unsecured.” A.R.S. § 13-2101(3)(a).



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                          MIDLAND v. AMELGA
                           Decision of the Court

2004) (citation omitted) (stating an argument not raised at trial is waived on
appeal).

¶11            In light of the stipulated documents and Amelga’s own
admissions, Amelga’s remaining arguments cannot stand. He admitted at
trial and in his own briefs that he entered into the contract, and he expressly
stated that he only disputed the amount. It is fruitless for Amelga to argue
the court erred in finding he said something that both the record and his
briefs indicate he did in fact say.

¶12            Additionally, Midland did not need to prove Amelga was
“[n]amed on the card” or was “in possession of the credit card with the
consent” of the person to whom it was issued pursuant to A.R.S. § 13-
2101(2). “It is well established that, in an action based on breach of contract,
the plaintiff has the burden of proving the existence of a contract, breach of
the contract, and resulting damages.” Chartone, Inc. v. Bernini, 207 Ariz. 162,
170, ¶ 30 (App. 2004) (citations omitted). Thus, A.R.S. § 13-2101(2) is
inapposite to Midland’s claim. Additionally, Midland did not need to
present a copy of the credit card or a signed credit card agreement to prove
the existence of the contract because use of a credit card is sufficient to bind
a cardholder to the terms and conditions of the account. See A.R.S. § 44-
7802.     Midland produced documents showing Amelga’s personal
information associated with the account and the account’s balance, last
payment date, and opening and charge off dates. Amelga neither objected
to any of the exhibits nor denied entering into the contract for the account.
Midland therefore presented sufficient evidence to meet its burden, Amelga
effectively admitted the essential elements of Midland’s claim, and the
superior court did not err in finding sufficient evidence to support the
judgment.
                               CONCLUSION
¶13           For the foregoing reasons, we affirm the superior court.




                            AMY M. WOOD • Clerk of the Court
                            FILED: AA




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