Opinion
DOCKET NO. A-4094-13T2
06-01-2016
CITIBANK, N.A., Plaintiff-Respondent, v. FRED COVINGTON, JR., Defendant-Appellant.
Fred Covington, Jr., appellant pro se. Slater, Tenaglia, Fritz and Hunt, P.A., attorneys for respondent (James T. Hunt, Jr., on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Simonelli and Sumners. On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Hudson County, Docket No. DC-12370-13. Fred Covington, Jr., appellant pro se. Slater, Tenaglia, Fritz and Hunt, P.A., attorneys for respondent (James T. Hunt, Jr., on the brief). PER CURIAM
In this credit card collection matter, defendant Fred Covington, Jr. appeals from a December 6, 2013 Special Civil Part summary judgment order requiring him to pay $2,488.25 to plaintiff Citibank, N.A. (Citibank). He also appeals from the March 28, 2014 denial of the second reconsideration of that decision.
The Special Civil Part issued an order on January 17, 2014 denying Covington's motion to vacate the summary judgment order. The court treated that motion as the first motion for reconsideration. --------
We briefly summarize the facts adduced from the record. On or around March 27, 2006, Citibank issued a Sears credit card to Covington. Covington subsequently made charges to the account, and after receiving statements from Citibank, he initially made payments without objection. However, he stopped making payments, and on July 24, 2013, Citibank filed a complaint against him to collect on the balance owed.
Covington, who was not represented by counsel, filed an answer to the complaint, but did not dispute making charges to the account nor receiving billing statements from Citibank. Rather, he challenged Citibank's standing to sue as the account creditor stating that the "[account] statements made no representation as to whom said payments were owed." Notably, though, the statements sent to Covington stated in unambiguous terms: "This [a]ccount is issued by Citibank (South Dakota), N.A."
Following discovery, Citibank filed a motion for summary judgment. In support, Citibank submitted with its affidavit, copies of the account statements from April 11, 2011, to April 11, 2013, that were sent to Covington. Though the record on appeal only includes the account statements for three billing cycles, each account statement sets forth the current and previous balance; all transactions and credits; accrued fees and finance charges; the annual percentage and finance charge percentage rates; and all billing cycle information in accordance with Rule 6:6-3(a).
On December 6, 2013, the court issued an order granting the motion. Though the order stated that summary judgment was granted for reasons set forth "on the record by the [c]ourt on December 6, 2013," neither party included a transcript of the decision with the record as required by Rule 2:6-1(a)(1). Our understanding of the judge's reasoning, however, is informed by the arguments of the parties in their briefs and the judge's reference to his summary judgment decision in Covington's subsequent reconsideration motion on January 17, 2014. The judge stated:
And the court found [in granting summary judgment] that under the analysis of [LVNV Funding, L.L.C. v. Colvell, 421 N.J. Super. 1, 3 (App. Div. 2011)], that the plaintiff had sustained the burden — I'm not going to reread the decision, but had sustained the burden of — to set forth the previous balance, to identify the transactions, to submit the closing date of the billing cycle.
The court interpreted the case and looked at the facts presented by the movant in that motion and agreed and granted summary judgment.
In his motion to reconsider summary judgment, Covington contended that the court's order did
not appear to consider my [o]bjection to [Citibank's] [m]otion. The [c]lerk . . . told me that it appeared that the decision in question was decided because I failed to file an [o]pposition. I filed and served a timely objection to [the] motion. Order contains no basis for ruling in favor of [Citibank].
After hearing oral argument, the court issued an oral opinion on January 17, 2014, denying Covington's motion. In addressing Covington's argument concerning the timeliness of his opposition to Citibank's summary judgment motion, the court explained that it reviewed the opposition as a new motion for summary judgment. However, even giving Covington the "benefit of the doubt," the court affirmed its finding that Citibank had sustained its burden in proving no issue of material fact. The court reasoned,
The movant, Citibank, is required to prove these issues under [LVNV Funding]. The standards of reconsideration under [Rule] 4:49-2 are not considered because I'm going to give the pro se the benefit of the doubt, but notwithstanding that and his original motion papers in opposition, [Covington] has not sustained his burden of showing to the courts of any material fact in dispute or any other issue with regards to this debt.
So therefore the court is going to deny [Covington's] . . . motion for reconsideration and it's denied for the substantive reasons, not the reasons of reconsideration which is a harsher standard under [Rule] 4:49-2 because there was somewhat of a question of whether the opposition got to the court and got to [Citibank] in a timely fashion.
Sometimes those things happen because of court — I don't know what the word would be, court staffing issues[,] and I don't meant to be critical but just because there are thousands of pleadings that are filed, it may not have gotten here but I'm going to give him the benefit of the doubt. And notwithstanding the benefit of the doubt, [Citibank] has sustained his burden and the original motion for summary judgment and once again looking again at the opposition. So, sir, the motion for reconsideration is denied and the summary judgment will stand.
On March 7, Covington filed a second motion for reconsideration seeking reversal of the denial of his first reconsideration request. He contended Citibank failed to meet its burden for summary judgment under both LVNV Funding and Rule 6:6-3. On March 28, the trial court denied Covington's second motion for reconsideration, pursuant to Rule 4:49-2, concluding that "[Covington] has already been provided an opportunity for the [c]ourt to [r]econsider the [s]ummary [j]udgment" and "has failed to submit any new information or law to the [c]ourt which it did not consider at the time of [his] [m]otion on January 17, 2014."
On appeal, Covington contends the trial court erred in granting Citibank's summary judgment motion for two reasons: 1) Citibank failed to demonstrate that it was the creditor in the transaction entitled to the balance due; and 2) Citibank's summary judgment motion did not satisfy Rule 6:6-3 nor the criteria established in LVNV Funding. In addition, Covington argues the court erred on March 28 in rejecting his request for reconsideration of the January 17 order which denied his reconsideration of the summary judgment order.
After our review of the record, as well as controlling law, we conclude the trial court's decisions on both motions were factually and legally correct. Having considered plaintiff's arguments on appeal under the same lens, we conclude they are wholly without merit and do not warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION