Opinion
2012 CA 0246
11-14-2012
CAPITAL ONE BANK (USA) NA v. RAOUL A. GALAN
Gregory M. Eaton Paul E. Pendley Stacey L. Greaud Baton Rouge, LA Attorneys for Plaintiff/Appellee Capitol One Bank (USA) NA Raoul A. Galan, Jr. Ponchatoula, LA Defendant/Appellant In Proper Person
NOT DESIGNATED FOR PUBLICATION
On Appeal from the City Court of Hammond, Seventh Ward
Parish of Tangipahoa, Louisiana
Docket No. 1-1105-0054
Honorable Grace Bennett Gasaway, Judge Presiding
Gregory M. Eaton
Paul E. Pendley
Stacey L. Greaud
Baton Rouge, LA
Attorneys for
Plaintiff/Appellee
Capitol One Bank (USA) NA
Raoul A. Galan, Jr.
Ponchatoula, LA
Defendant/Appellant
In Proper Person
BEFORE: PARRO, HUGHES, AND WELCH, JJ.
PARRO, J.
In this suit concerning a MasterCard balance, Raoul A. Galan, Jr. appeals a judgment that granted a motion for summary judgment in favor of Capital One Bank (USA) NA (Capital One). We affirm the judgment and issue this opinion in accordance with the Uniform Rules of Louisiana Courts of Appeal, Rules 2-16.2(A)(2), (4), (6), and (8).
BACKGROUND
On May 11, 2011, Capital One filed suit against Mr. Galan, claiming he was indebted to the bank in the full sum of $2,656.59, plus accrued interest of $111.70, plus additional interest of 12.9% from December 6, 2010, until paid, plus 25% attorney's fees based on the aggregate of both principal and interest, plus all court costs. The petition claimed that after amicable demand, these amounts remained due on Mr. Galan's MasterCard account, which account number ends with 4628. Mr. Galan answered with a general denial, in which he also asked Capita! One to prove its claims by producing a "complete hard copy" of his monthly statements to the court. He filed a number of additional "discovery" pleadings, each time repeating his request for the bank to produce hard copies of the monthly statements, so that he could ascertain whether the claimed amount was due.
In response to Mr. Galan's discovery requests, Capital One stated that the record retention requirements on open accounts and credit card loans are found in "Reg Z" at 12 CFR 226.25, which requires creditors to maintain records for two years "after the date disclosures are required to be made or action is required to be taken." This regulation further requires a debtor to dispute a statement within 60 days from receipt, after which it is presumed correct. With regard to this case, Capital One stated that the records retention requirements had prescribed, and the documents Mr. Galan had requested were no longer required to be available and, in fact, may no longer be available. Capital One further advised that the information Mr. Galan sought had previously been provided to him in monthly statements and that he had not made any objections to the charges shown on those statements.
On August 8, 2011, Capital One filed a motion for summary judgment, supported by an affidavit of correctness of account certifying the balance due and the terms sued upon, as well as verifying the attached credit terms and itemized statement of account. The attachments included a copy of the Capital One "Customer Agreement," which provided all the terms of the credit card account; copies of statements on the account for the periods July 8, 2010, through May 6, 2011; and a copy of the final transaction summary for Mr. Galan's credit card account, showing the balance due.
Mr. Galan did not oppose the motion for summary judgment or provide any factual information to rebut the amount shown as due on his account. Instead, he continued to ask for hard copies of the monthly statements and for discovery conferences. The motion for summary judgment was set for hearing on October 11, 2011. At that hearing, the court acceded to Mr. Galan's request and deferred ruling on the motion until November 29, 2011, in order for Mr. Galan to have an opportunity for further discovery. At the hearing on November 29, 2011, Mr. Galan explained to the court that he had been displaced and his records had been lost in Hurricane Katrina, so he could not examine the statements to determine whether the amount being claimed by Capital One was correct. He also raised, for the first time, the claim that his account had been secured by an unknown insurance company, for which premiums were deducted from his account every month for the purpose of covering any unpaid balance, should he be forced to default on the account. However, because he could not present any evidence of the existence or terms of any such insurance agreement and could not dispute the amounts claimed, the court granted Capital One's motion for summary judgment. The judgment was signed on November 29, 2011, and Mr. Galan appealed.
ANALYSIS
In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court's determination of whether summary judgment is appropriate. Louisiana Indus. for Disabled, Inc. v. Premier Bank, Nat. Ass'n, 00-2946 (La. App. 1st Cir. 2/15/02), 807 So.2d 1190, 1194. In proving the sum due on an open account, the plaintiff first must prove the account by showing that a record of the account was kept in the course of business and by introducing supporting proof regarding its accuracy. Once a prima facie case has been established by a plaintiff-creditor, the burden shifts to the debtor to prove the inaccuracy of the account or to prove that the debtor is entitled to certain credits. See Jacobs Chiropractic Clinic v. Holloway, 589 So.2d 31, 34 (La. App. 1st Cir. 1991). A motion for summary judgment that shows there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law shall be granted. LSA-C.C.P. art. 966(C)(1).
Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers referred to in an affidavit shall be attached thereto. LSA-C.C.P. art. 967(A). When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleading, but his response must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment shall be rendered against him. LSA-C.C.P. art. 967(B).
Capital One established a prima facie case by an affidavit based on personal knowledge and supporting documents identifying the account holder, verifying the balance due, and confirming the terms of the account agreement. The court allowed additional time for Mr. Galan to obtain evidence to support his claims. However, other than making a very sympathetic argument, Mr. Galan presented no evidence that the amounts claimed were incorrect or that he was due a credit on the balance. Also, although the account may have been secured against default, as he claimed, he did not raise this affirmative defense in his answer and did not provide any proof of the existence or terms of any such agreement. See LSA-C.C.P. arts. 1003 and 1005. Therefore, there was no genuine issue of material fact, and summary judgment in favor of Capital One was appropriate.
CONCLUSION
For the above reasons, and in accordance with the Uniform Rules of Louisiana Courts of Appeal, Rules 2-16.2(A)(2), (4), (6), and (8), we affirm the judgment of November 29, 2011. All costs of this appeal are assessed to Raoul A. Galan, Jr.
AFFIRMED.
NOT DESIGNATED FOR PUBLICATION
2012 CA 0246
CAPITAL ONE BANK (USA) NA
v.
RAOUL A. GALAN
HUGHES, J., dissenting.
I respectfully dissent. Affidavits shall be made on personal knowledge. I do not see how the plaintiff can provide an "affidavit of correctness" without an itemization of the charges.