Opinion
DOCKET NO. A-5856-09T1
12-20-2011
FIA CARD SERVICES NATIONAL ASSOCIATION, Plaintiff-Respondent, v. ANGELO C. FAZIO, Defendant-Appellant.
Angelo C. Fazio, appellant, pro se. Ragan & Ragan, P.C., attorneys for respondent (Thomas C. Kinney, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne and Messano.
On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Monmouth County, Docket No. DC-006086-10.
Angelo C. Fazio, appellant, pro se.
Ragan & Ragan, P.C., attorneys for respondent (Thomas C. Kinney, of counsel and on the brief). PER CURIAM
Defendant, Angelo C. Fazio, appeals from an order of summary judgment in the amount of $12,705.00 plus costs, entered in a collection action instituted by FIA Card Services National Association and arising from a credit card debt on an account with Bank of America.
The record discloses defendant's claim that, in April or May 2007, he entered into a contract with Lifestyles Holiday Vacation Club (LHVC) for the purchase of what defendant believed would be a "deeded fractional ownership" in a timeshare property. Thereafter, he determined that the ownership interest was, instead, a "Gold membership" in the property. Defendant claimed as a result that the transaction was fraudulent.
In payment for his claimed ownership interest in the property, defendant entered into what he allegedly believed to be a loan transaction. However, he claims that his "loan application" was utilized by LHVC, without his authorization, to file an "online credit card application" with Bank of America, with statements of account e-mailed to a representative of LHVC, not defendant. No evidence in support of these allegations appears in the record. There is, instead, contained in supplemental exhibits submitted by defendant in the matter, a credit card application for an RCI Elite Rewards MasterCard Credit Card from Bank of America completed and signed by defendant, evidence of issuance of that card bearing the account number *******6533, and a credit card receipt from LH Escrow Agency bearing defendant's signature, charging the *******6533 account the sum of $14,845. There is also evidence in the record of payments on that account in the months of June 2007, July 2007, August 2007, November 2007, January 2008, February 2008, March 2008, May 2008, July 2008, and August 2008.
Customer statements of disputed item dated July 1, 2008 were submitted to Bank of America with respect to all statements issued between May 2007 and June 2008. In those statements, defendant challenged the imposition of late fees and finance charges, as well as the rate of interest charged on the account. The statements do not dispute the existence of the initial debt.
On September 8, 2008, more than a year after the transaction at issue, defendant wrote to Bank of America, stating, in part:
Due to a series of events outside of both my authorization and control, I was misled into opening this account with Bank of America ("BofA") by a third party, Lifestyles Holiday Vacation Club ("LHVC"). Subsequent to this, this account fell into delinquency accruing severe penalties. In an attempt to rectify this situation, please allow me to explain the history involved and why I vehemently insist that any and all necessary action be taken on my behalf to both vacate this account and remove me from any and all liability associated therewith.Defendant then set forth the facts that we have previously summarized regarding his dealings with LVHC.
Bank of America responded to defendant in a letter dated October 6, 2008, asking for further detail regarding "the $14,845.00 charge(s) from LH ESCROW AGENCY." The letter requested, in relevant part:
1. A letter detailing how the merchandise or service you ordered was described to you when you placed the order, how it differed from what was received, and the exact amount of the merchandise in dispute . . . .
2. The date(s) that you attempted to resolve the situation with the merchant, any actions you have taken, and the merchant's response to your request for credit. . . .
3. Copies of the front and back of any sales slips, invoices, or contracts involved in the purchase . . . .
4. If merchandise was involved, provide the date you received it and your attempts to return the merchandise to the merchant . . . .
Defendant responded by letter dated October 20, 2008, stating that he "purchased a timeshare in person and it differed from what was explained," since he expected a fractional ownership interest in specific property and received membership in a club. He stated that he attempted to resolve the issue numerous times, commencing in September 2007 at the time he expected to receive the deed for his property interest. He then said:
I contacted them every month after talking to Bank of America in Oct and November because they were receiving my Bank of America statement to one of their employee e-mail addresses that opened my Bank of America credit card. They claimed that they could not change it. My calls in Jan and Feb were to use a sister property in London and both of those requests were turned down. This again showed that if it was a service I purchased I did not use any of the membership to the club nor did I use the properties if it was merchandise they ever did send me.No other communication with Bank of America appears in the appellate record.
In April and March they said the certificate was a deed of trust for a membership not a fractional ownership of real property. In May and Jun[e] I attempted to resolve the matter with the help of a lawyer and Lifestyles Holiday Vacation Club said that they would be able to downgrade my membership to a smaller unit but that would only relieve my loan with them.
Any sale of the membership did not come with guarantees on value and that is w[h]ere we parted ways on being able to resolve this without disputing what was purchased, what was received, what was not received and what was used or not used.
On January 4, 2010, plaintiff's law firm, Ragan & Ragan, contacted defendant regarding the outstanding account. On January 20, 2010, defendant responded, stating that "the account in question is still an open case with the Bank of America Dispute Department" and that he was "working with Bank of America directly to resolve this issue." Thus, according to defendant, the account was forwarded for collection in error. On March 10, 2010, plaintiff filed suit in the Special Civil Part seeking $12,705 plus accrued interest and costs of suit. Defendant answered the complaint on April 20, 2010, checking as applicable the following:
(1) The good[s] or services were not receivedA jury trial was requested.
. . . .
(4) I/We did not order the goods or services
(5) The dollar amount claimed by the plaintiff(s) is incorrect
(6) Other -This is still an open dispute with Bank of America and I informed Regan & Regan of such in a letter signed for by Kathy Vernon on 1/25/2010.
On May 10, 2010, plaintiff's counsel filed discovery requests on defendant, and on May 24, 2010, plaintiff moved for summary judgment. Timely opposition to plaintiff's motion was not filed, and summary judgment was entered on June 16, 2010.
Rule 6:3-3(c)(2) requires notice to the court and counsel for the moving party within ten days of service of the motion that the responding party objects to the entry of judgment. That requirement was set forth in plaintiff's notice of motion.
Twelve days after the entry of summary judgment, by letter dated June 28, 2010, defendant submitted opposition to plaintiff's motion, asserting that the denials of plaintiff's allegations, contained in defendant's answer to plaintiff's complaint provided evidence that material issues of fact remained; that the initial charge continued to be disputed; and that the matter should be resolved by arbitration. Additionally, defendant sought summary judgment in his favor. No response to defendant's untimely submission was provided.
Defendant does not argue on appeal and did not attempt to argue in the Special Civil Part that the imposition of interest and late fees was improper. We thus deem such an argument to have been waived.
Thereafter, on July 30, 2010, defendant appealed. Upon initial consideration of the substance of the parties' briefs on appeal, we ordered supplemental briefing on the potential applicability of 15 U.S.C.A. §§ 1666 and 1666i to the dispute. We have considered that supplemental briefing in determining to affirm summary judgment in plaintiff's favor.
Defendant's failure to submit timely opposition to plaintiff's summary judgment motion in the Special Civil Part provides an alternative ground for affirmance.
In reaching that conclusion, we note that defendant's defense to plaintiff's claim for payment has its origin in the dispute between defendant and LHVC over the nature of the interest that defendant purchased from it. However, defendant has not filed suit against LHVC seeking rescission of his contract with it or a modification of that contract to conform to defendant's alleged expectations. Moreover, defendant has offered no legal authority for his position that the Bank of America should bear the cost of a dispute over a debt that was not brought to its attention until more than one year after the debt had been incurred. As plaintiff notes in its supplemental brief, federal law does not compel such a result, but instead requires that an obligor provide written notice of a billing error within sixty days of receipt of a statement containing such an error. See 15 U.S.C.A. § 1666(a); see also 15 U.S.C.A. § 1666i.
We recognize defendant's claim that he did not receive billing statements until June 2008. However, he had sufficient notice of the debt to make the multiple payments on account that we have noted.
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Defendant claims additionally, without supporting evidence, that irregularities existed in the manner in which the account with Bank of America was opened. However, as plaintiff notes, defendant's use of the credit card to purchase his membership in LHVC and his subsequent payments provide evidence of a valid contract between defendant and Bank of America that was breached once insufficient payment was made. Novack v. Cities Service Oil Co., 149 N.J. Super. 542, 548 (Law Div. 1977) ("'Acceptance or use of the card by the offeree makes a contract between the parties according to its terms[.]'") (quoting City Stores Co. v. Henderson, 156 S.E.2d 818, 823 (Ga. App. 1967)), aff'd, 159 N.J. Super. 400 (App. Div.), certif. denied, 78 N.J. 396 (1978).
As a final matter, defendant claims that his dispute with Bank of America should have been arbitrated. However, defendant failed to demand arbitration in his answer, and did not seek such relief until summary judgment had been entered against him. We thus find his demand untimely.
Affirmed.
I hereby certify that the foregoing
is a true copy of the original on
file in my office
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CLERK OF THE APPELLATE DIVISION