Opinion
DOCKET NO. A-5511-12T3
07-16-2014
CACH OF N.J., LLC, Plaintiff-Respondent, v. CARMEN V. DIAMOND, Defendant-Appellant.
Kyle L. Mastro, attorney for appellant. Fein, Such, Kahn & Shepard, P.C., attorneys for respondent (Brian P.S. McCabe, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Alvarez.
On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Somerset County, Docket No. DC-1309-13.
Kyle L. Mastro, attorney for appellant.
Fein, Such, Kahn & Shepard, P.C., attorneys for respondent (Brian P.S. McCabe, on the brief). PER CURIAM
In this debt collection action, defendant Carmen Diamond appeals from a June 14, 2013 order of the Special Civil Part granting summary judgment to plaintiff, CACH of N.J., LLC, in the amount of $11,092.75 plus costs. We affirm.
We recite the facts and evidence presented in the light most favorable to defendant, the non-moving party. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
On May 21, 2012, Citibank South Dakota, N.A. (Citibank) sold and assigned to CACH, LLC all of its rights, title and interest in a portfolio of defaulted accounts, including a revolving, open-ended Sears MasterCard credit card account opened on January 1, 1999 by defendant, and charged-off on February 24, 2012. On December 31, 2012, CACH, LLC transferred all title to this portfolio, including defendant's underlying defaulted account, to plaintiff, its affiliate and wholly-owned subsidiary. As is evidenced by the eighteen periodic billing statements sent to the same address at which defendant was served with process, defendant made payments toward the balance due and owing on the account through July 25, 2011. No further payments were made by defendant. The charge-off statement sent on or about the statement closing date of January 25, 2012, represented the final periodic statement sent to defendant, as she had defaulted on the terms of the credit arrangement, reflecting an outstanding balance on the account of $11,092.75.
Plaintiff filed suit against defendant for the outstanding balance plus interest and costs. Defendant filed an answer setting forth a general denial along with affirmative defenses of statute of limitations, statute of frauds and estoppel. Plaintiff moved for summary judgment, supported by billing statements for the period from September 2010 through January 2012; a May 21, 2012 bill of sale and assignment between Citibank and CACH, LLC; a certificate of assignment executed by CACH, LLC's authorized agent (Lisa Lundquist), evidencing CACH, LLC's then current ownership of the account; Lundquist's business records affidavit, evidencing her custodianship of the company's records; and Lundquist's affidavit of account transfer, evidencing transfer to plaintiff CACH of N.J., LLC of defendant's consumer debt to CACH, LLC.
Plaintiff maintained there is no genuine issue of material fact and that, as a matter of law, it is entitled to summary judgment because it completed its performance under a valid and binding contract while defendant breached its obligation thereunder by not paying the amounts due. Defendant opposed the motion, essentially challenging the authenticity of plaintiff's documentary proofs.
Following argument, the court granted plaintiff's motion and entered judgment in plaintiff's favor for $11,092.75 plus costs, finding that plaintiff produced competent proof that it was the legal owner of defendant's account; defendant received her monthly Sears credit card statements of account; these statements showed payments made and those transactions for which payment had not been made; and that defendant's general denials, on the other hand, were insufficient to defeat plaintiff's summary judgment motion. The judge specifically found:
Defendant argues that this court should not consider any of the attached documents submitted with plaintiff's motion because the affidavit concerning the admissibility of said documents was not made by someone with personal knowledge of the circumstances of the creation of the documents as is required by the business record exception to the hearsay rule. However, I find that this court can consider these attachments. Rule 6:6-3 allows for the account owner to rely on a copy of the periodic statement for the last billing cycle, as prescribed by 15 U.S.C. §1637(b) and 12 C.F.R. §226.7, or a computer-generated report. In addition, the court has found these documents admissible in support of proving a claim for a summary judgment motion provided that a representative of the assignee certifies with personal knowledge of the assignee's creation and maintenance of its business records. See LVNV Funding, LLC v. Colvell, 421 N.J. Super. 1, 7 (App. Div. 2011). As plaintiff's representative certified to the business records of plaintiff as required in Colvell, I find that the documents included with plaintiff's motion are admissible. Therefore, I find that plaintiff has made a sufficient showing that plaintiff is the legal owner of defendant's account and that defendant defaulted on payment of the sum due.
On appeal, defendant raises the same arguments made and rejected below, namely:
I. THE TRIAL COURT ERRED IN MISAPPLYING THE APPLICABLE STANDARD OF A MOTION FOR SUMMARY JUDGMENT.
II. THE TRIAL COURT ERRED IN BASING THE DECISION ON INADMISSIBLE EVIDENCE.
Based on our review of the competent proofs in the record, we are satisfied that plaintiff presented sufficient undisputed evidence of the credit card debt and plaintiff's ownership thereof warranting the entry of summary judgment in its favor as a matter of law.
"'Rules 6:6-3(a) provides a guide to the proofs necessary to grant summary judgment in a credit card collection matter." LVNV Funding, L.L.C. v. Colvell, 421 N.J. Super. 1, 6 (App. Div. 2011). Thus, "[t]o collect on a revolving credit card debt, [plaintiff] is required to provide the transactions for which payment has not been made, any payments that have been made, the annual percentage and finance charge percentage rates and the billing cycle information." Id. at 7-8 (citing Rule 6:6-3(a)). Moreover, the consumer's use of a credit card constitutes the formation of a contract and signifies the consumer's acceptance of, and acquiescence to, the terms therein. See Novack v. Cities Serv. Oil Co., 149 N.J. Super. 542, 547-49 (Law Div. 1977), aff'd, 159 N.J. Super. 400 (App. Div.), certif. denied, 78 N.J. 396 (1978).
Here, the final credit card statement for the account at issue sets forth the prior balance; all transactions and credits; the periodic interest rates and the balance upon which the finance charge is computed; accrued fees and finance charges; the closing date of the billing cycle; and the new balance. The seventeen periodic billing statements preceding the final statement, all sent to defendant at the same address used for service of the summons and complaint, also reflect purchases charged and payments made toward the account. By contrast, there is no evidence that defendant ever contested any charge or calculation with the original creditor. Thus, there is undisputed proof of the existence of the account, the use of the account, the receipt of statements of account by defendant, the balance owed upon the account, and the requisite information about interest charged and previous balance of the account. Defendant's general denials in her answer and opposition to plaintiff's summary judgment motion are simply inadequate to raise a genuine issue of material fact as to the existence and amount of defendant's debt.
Likewise, there is undisputed proof of plaintiff's ownership of the account. The bill of sale and accompanying spreadsheet listing all the accounts, including defendant's, sold and assigned by the original creditor Citibank to plaintiff's parent company, CACH, LLC, sufficiently describes the subject matter of the assignment and is evidence of the transferor's intent. See K. Woodmere Assocs., L.P. v. Menk Corp., 316 N.J. Super. 306, 314 (App. Div. 1998). And to complete the chain of assignment, the Affidavit of Account Transfer memorialized the transfer of defendant's specific account from CACH, LLC to its affiliate and wholly-owned subsidiary, plaintiff CACH of N.J., LLC. These uncontroverted proofs leave no question as to plaintiff's ownership of defendant's account.
Defendant nevertheless challenges the competency of plaintiff's documentary proofs, arguing that the individual who furnished certifications lacked the requisite personal knowledge of the documents to justify their admission as business records under the hearsay exception, N.J.R.E. 803(c)(6). We disagree.
As a threshold matter, we review a trial court's evidential ruling under the deferential standard of an abuse of discretion. Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008); Brenman v. Demello, 191 N.J. 18, 31 (2007). Here, defendant has not provided anything other than bare allegations to demonstrate the unreliability of the records proffered by plaintiff and therefore we perceive no abuse of discretion in their consideration by the motion court. Quite the contrary, Lundquist is an authorized representative of plaintiff's parent corporation, CACH, LLC, which purchased defendant's account from the original creditor and thereafter transferred it to plaintiff, CACH of N.J., LLC, its wholly-owned subsidiary. Thus, Lundquist's position imbued her with sufficient knowledge to adequately authenticate the documents at issue as business records. See N.J.R.E. 803(c)(6).
As regards the eighteen periodic billing statements from the original creditor, suffice it to say, they "[we]re admissible because they 'appear[ed] perfectly regular on [their] face and as having been issued in the regular course of business prior to the inception of any controversy between the parties.'" Garden State Bank v. Graef, 341 N.J. Super. 241, 246 (App. Div. 2001) (quoting Mahoney v. Minsky, 39 N.J. 208, 213 (1963)). On this score, business records may still be admitted even if they are the business records of an entity who is not a party to the case or proffered by a witness who did not participate in the record's creation and does not know who did, Hahnemann Univ. Hosp. v. Dudnick, 292 N.J. Super. 11, 17 (App. Div. 1996), particularly for purposes of a summary judgment motion, see LVNV Funding, supra, 421 N.J. Super, at 6-7. Here, defendant has offered nothing but blanket, self-serving allegations that either the chain of assignment documents or the eighteen periodic billing statements for the credit card account bearing defendant's name and address are in any way inaccurate or untrustworthy.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION