Opinion
No. COA12–958.
2013-05-7
FIA CARD SERVICES, N.A., Plaintiff, v. Joy F. ASHWORTH, Defendant.
Sessoms & Rogers, P.A., by Amber K. Kauffman and Mitchell A. Meyers, for plaintiff-appellee. Joy F. Ashworth, pro se, defendant-appellant.
Appeal by defendant from order entered 4 May 2012 by Judge Joseph Williams in Union County District Court. Heard in the Court of Appeals 12 December 2012. Sessoms & Rogers, P.A., by Amber K. Kauffman and Mitchell A. Meyers, for plaintiff-appellee. Joy F. Ashworth, pro se, defendant-appellant.
GEER, Judge.
Defendant Joy F. Ashworth appeals from the trial court's order granting summary judgment to plaintiff FIA Card Services, N.A., on its claim to recover a debt on a credit account. On appeal, defendant primarily contends that the trial court erred in granting summary judgment because there was a genuine issue of material fact as to whether a valid credit agreement existed between plaintiff and defendant. We hold that the trial court correctly determined that pursuant to Rule 36 of the North Carolina Rules of Civil Procedure, defendant conclusively admitted the existence of a valid credit agreement between herself and plaintiff by failing to timely respond to plaintiff's request for admissions. Because we also find defendant's additional arguments unpersuasive, we affirm.
Facts
On 8 April 2011, plaintiff filed a complaint against defendant seeking to recover a debt of $4,798.61 on a credit account. The complaint alleged that plaintiff is a subsidiary of Bank of America Corporation, that plaintiff opened a credit account for defendant and, at defendant's request, extended credit to defendant through the account. The complaint further alleged that defendant accepted and used the credit, incurred balances due on the account, agreed to repay plaintiff, and defaulted on the account by failing to make monthly payments as they became due. On 6 May 2011, defendant, acting pro se, filed an answer denying the material allegations of the complaint and asserting affirmative defenses under the Statute of Frauds and Fair Debt Collection Practices Act.
On or about 7 June 2011, plaintiff served defendant with a request for admissions. Defendant failed to answer or otherwise respond to the requests within 30 days. Plaintiff then filed a motion for summary judgment on 7 October 2011. On or about 28 November 2011, defendant served plaintiff with untimely responses to plaintiff's request for admissions. Plaintiff filed an amended motion for summary judgment on 17 January 2012.
The trial court entered a written order granting summary judgment to plaintiff on 4 May 2012. In its 4 May 2012 order, the court specifically found that “on June 7, 2011, plaintiff served request for admissions upon the defendant” and that “defendant did not respond to the request of time [sic] within thirty (30) days and therefore said requests are deemed admitted.” Based on these findings, the court ordered that “plaintiff have and recover from the defendant the principal sum of $4,798.61,” that “plaintiff recover no interest,” and that defendant pay the costs. Defendant timely appealed the order granting summary judgment to this Court.
Discussion
As an initial matter, we address plaintiff's motion to dismiss defendant's appeal based on purported violations of the North Carolina Rules of Appellate Procedure. Although we have determined that defendant violated several nonjurisdictional rules, no violations rise to the level of a substantial failure or gross violation and we, therefore, deny plaintiff's motion to dismiss. See Dogwood Dev. & Mgmt. Co. v. White Oak Transp. Co., 362 N.C. 191, 199, 657 S.E.2d 361, 366 (2008) (“[T]he appellate court may not consider sanctions of any sort when a party's noncompliance with nonjurisdictional requirements of the rules does not rise to the level of a ‘substantial failure’ or ‘gross violation.’ In such instances, the appellate court should simply perform its core function of reviewing the merits of the appeal to the extent possible.”).
Turning to the merits of the appeal, “[o]ur standard of review of an appeal from summary judgment is de novo; such judgment is appropriate only when the record shows that ‘there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.’ “ In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008) (quoting Forbis v. Neal, 361 N.C. 519, 524, 649 S.E.2d 382, 385 (2007)).
“The elements of a claim for breach of contract are (1) existence of a valid contract and (2) breach of the terms of that contract.” Poor v. Hill, 138 N.C.App. 19, 26, 530 S.E.2d 838, 843 (2000). Defendant first argues that summary judgment was improper because there was a genuine issue of material fact as to whether a valid credit agreement existed between plaintiff and defendant. According to defendant, the complaint alleged an “impossible” fact-that plaintiff “opened a credit account ... for the defendant.” Defendant's argument is premised upon an exhibit that defendant contends establishes plaintiff is not authorized to issue credit cards.
It is, however, undisputed that plaintiff served defendant with a set of requests for admissions, that defendant received the admissions, and that defendant failed to timely serve plaintiff with a written answer or objection to the request for admissions. Pursuant to Rule 36(a) of the Rules of Civil Procedure, all matters in plaintiff's request for admissions were deemed admitted by defendant. See id. (providing, in part, “[a] party may serve upon any other party a written request for the admission ... of the truth of any matters within the scope of Rule 26(b)” and “[t] he matter is admitted unless, within 30 days after service of the request ... the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter”).
By operation of Rule 36, defendant therefore admitted the following relevant facts:
8. The defendant entered into a credit agreement with the plaintiff, FIA Card Services, N.A., a subsidiary of Bank of America.
9. The attached Plaintiff's Exhibit No. 2 is a true and accurate copy of the monthly billing statements dated August 23, 2009 through September 22, 2009.
....
12. The defendant is in default under the terms of that Credit Agreement, in that said defendant has failed to make the required payments due.
13. The defendant is lawfully indebted to the plaintiff in the principal sum of $4,798.61.
(Emphasis added.) Defendant, accordingly, admitted entering into a credit agreement with plaintiff, breaching the agreement, and the amount of damages owed.
Defendant did not move to withdraw or amend these admissions, and the trial court never allowed their withdrawal or amendment. As a result, defendant's admissions were conclusively established. SeeN.C.R. Civ. P. 36(b) (“Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission.”).
Defendant's admissions alone were sufficient to support the trial court's order granting summary judgment. See Goins v. Puleo, 350 N.C. 277, 280, 512 S.E.2d 748, 750 (1999) (“Facts that are admitted under Rule 36(b) are sufficient to support a grant of summary judgment.”). As stated by our Supreme Court in Goins, a case decided under similar circumstances:
The entry of summary judgment in ... this case may appear to lead to a harsh result. Nevertheless, the Rules of Civil Procedure promote the orderly and uniform administration of justice, and all litigants are entitled to rely on them. Therefore, the rules must be applied equally to all parties to a lawsuit, without regard to whether they are represented by counsel.
Id. at 281, 512 S.E.2d at 751 (holding that summary judgment in favor of defendants in medical negligence case was required when plaintiff, acting pro se, failed to respond to request for admission that defendants did not breach applicable standard of medical care).
We also note that, even though defendant's admissions alone support summary judgment, defendant contends that “there is no Affidavit, contract, [or] signed credit application” evidencing the contract. However, plaintiff submitted an affidavit of its Custodian of Records which states that defendant “opened an account with [plaintiff] or a predecessor in interest, for the purpose of obtaining an extension of credit and did thereafter use or authorize the use of the account for the acquisition of goods, services, or cash advances in accordance with the customer agreement governing use of that account.” Moreover, plaintiff submitted approximately two years' worth of monthly billing statements, dating from September 2008 to September 2010, issued to defendant and mailed to defendant at the same address as her current address of record. The following language was provided in a pre-printed form attached to each of the billing statements: “This account is issued and administered by FIA Card Services, N.A.”
Defendant next argues that the trial court erred in granting summary judgment because plaintiff did not establish that it was the “holder” or “holder in due course” of the credit account under North Carolina statutes codifying the Uniform Commercial Code. As statutorily defined, those terms pertain to persons with rights in negotiable instruments. SeeN.C. Gen.Stat. § 25–1–201(b)(21) (2011) (defining “ ‘[h]older’ ”); N.C. Gen.Stat. § 25–3–302 (2011) (defining “[h]older in due course”). In support of her argument, defendant cites In re Foreclosure by David A. Simpson, P. C., 211 N.C.App.483, ––––, 711 S.E.2d 165, 171 (2011), In re Foreclosure of Adams, 204 N.C.App. 318, 322, 693 S.E.2d 705, 709 (2010), and Liles v. Myers, 38 N.C.App. 525, 526–27, 248 S.E.2d 385, 387 (1978), each discussing the rights of parties with respect to negotiable instruments. “Negotiable instrument” is defined in the Uniform Commercial Code as “an unconditional promise or order to pay a fixed amount of money” under certain conditions. N.C. Gen.Stat. § 25–3–104(a) (2011).
In this case, however, the contract at issue was a “credit account” under which defendant “incurred balances due on the Account that the defendant agreed to repay to the plaintiff.” Because the alleged contract was a credit agreement rather than a negotiable instrument, defendant's argument that plaintiff did not establish it was a holder or holder in due course, and the cases cited in support of that argument, are beside the point.
Affirmed. Judges BRYANT and CALABRIA concur.
Report per Rule 30(e).