Opinion
Index No. EFCA2020002217
06-27-2023
MIDLAND CREDIT MANAGEMENT, INC., Plaintiff, v. JULIE A. BILL, Defendant.
Unpublished Opinion
DECISION AND ORDER
EUGENE D. FAUGHNAN JUSTICE PRESIDING
This matter is before the Court upon the motion of Plaintiff, Midland Credit Management, Inc. for summary judgment pursuant to CPLR 3212. Defendant, Julie Bill, submitted a letter dated June 1,2023, which did not raise any legal arguments or dispute with respect to the motion. The motion was given a return date of June 9,2023, on submission only. After due deliberation, this Decision and Order constitutes the Court's determination with respect to the pending motion.
All the papers filed in connection with the motion are included in the NYSCEF electronic case file, and have been considered by the Court.
BACKGROUND FACTS
This is an action pertaining to a credit card agreement originally entered into between Capital One Bank (USA), N.A. and Defendant. Midland Credit Management, Inc. purchased a pool of charged off accounts, including this one, from Capital One Bank (USA), N.A. in December 2019. Plaintiff commenced this action by the filing of a summons and complaint on October 28,2020 alleging that Defendant had failed to pay at least the minimum monthly payment, and had not paid the balance owed on the account, leaving an unpaid balance due of $9,078.13. An affidavit of service was filed on November 14,2020 indicating personal service upon the Defendant on October 30,2020. Defendant filed a letter on January 4,2021, stating that she was unable to make payments on her credit card bills. Plaintiff treated the response as a pro se answer.
Plaintiff filed the instant motion for summary judgment on April 21, 2023, with an amended motion filed on April 26, 2023. In support of the motion, Plaintiff submitted an affidavit of facts from Susan Barrett, a Legal Specialist of Plaintiff. Barrett stated that she has access to Plaintiff's electronic records relating to this account and has personal knowledge of the procedures relating to the purchase and/or assignment of consumer credit accounts. She also averred that Plaintiffs records were made in the regular course of business and that it is Plaintiffs regular course of business to create these records contemporaneously with activity occurring. The affidavit enclosed a copy of the agreement and account statements from 2019 showing the activity on the account. A copy of the bill of sale of this account was also provided. Barrett's affidavit also confirmed Defendant's default in payments and outstanding balance. Plaintiff also submitted an attorney affirmation setting forth the procedural history and legal arguments.
LEGAL DISCUSSION AND ANALYSIS
When seeking summary judgment, "the movant must establish its prima facie entitlement to judgment as a matter of law by presenting competent evidence that demonstrates the absence of any material issue of fact." Lacasse v. Sorbello, 121 A.D.3d 1241,1241 (3rd Dept 2014) citing Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 (1986) and Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 (1985) (other citation omitted); see Amedure v. Standard Furniture Co., 125 A.D.2d 170 (3rd Dept 1987); Bulger v. Tri-Town Agency, Inc., 148 A.D.2d 44 (3rd Dept. 1989), app dismissed 75 N.Y.2d 808 (1990). Such evidence must be tendered in admissible form. Zuckerman v. City of New York, 49 N.Y.2d 557 (1980); Friends of Animals, Inc. v. Associated Fur Mfrs., 46 N.Y.2d 1065,1067-1068 (1979). Once this obligation is met, the burden shifts to the respondent to establish that a material issue of fact exists. Dugan v. Sprung, 280 A.D.2d 736 (3rd Dept. 2001); Sheppard-Mobley v. King, 10 A.D.3d 70,74 (2nd Dept. 2004) affd as mod. 4 N.Y.3d 627 (2005); Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324; Winegrad v. N.Y.Univ. Med. Ctr., 64 N.Y.2d 851, 853. "When faced with a motion for summary judgment, a court's task is issue finding rather than issue determination (see, Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404 [1957]) and it must view the evidence in the light most favorable to the party opposing the motion, giving that party the benefit of every reasonable inference and ascertaining whether there exists any triable issue of fact." Boston v. Dunham, 274 A.D.2d 708, 709 (3rd Dept. 2000); see, Boyce v. Vazquez, 249 A.D.2d 724, 726 (3rd Dept. 1998). The motion "should be denied if any significant doubt exists as to whether a material factual issue is present or even if it is arguable that such an issue exists." Haner v. De Vito, 152 A.D.2d 896, 896 (3rd Dept. 1989) (citation omitted); Lacasse v. Sorbello, 121 A.D.3d 1241; Asabor v. Archdiocese of N. Y, 102 A.D.3d 524 (1st Dept. 2013). It "is not the function of a court deciding a summary judgment motion to make credibility determinations or findings of fact." Vega v. Restani Constr. Corp., 18 N.Y.3d 499, 505 (2012) (citation omitted).
A plaintiff makes a prima facie showing of entitlement to summary judgment by showing the existence of a credit agreement, which "defendant accepted by his use of the credit card and payments thereon, which was breached by defendant when he failed to make the required payments." Citibank (South Dakota), N.A. v. Keskin, 121 A.D.3d 635, 636 (2nd Dept. 2014); see, Discover Bank v. Berg, 2021 NY Mise LEXIS 730 (App. Term 2nd Dept. 2021); Citibank, N.A. v. Wheeler, 2021 NY Mise LEXIS 5998 (Sup. Ct., Broome County 2021); Am. Express Nat'l Bank v. Turrigiano, 2020 NY Mise LEXIS 8379 (Sup. Ct., Suffolk County 2020). Per Barrett's affidavit, Defendant was granted a line of credit and breached the terms of the agreement by not making the required payments on the purchases and cash advances. Thus, Plaintiff has set forth a prima facie case for breach of contract.
Plaintiff also made a prima facie showing for an account stated which requires "an agreement between parties to an account based upon prior transactions between them with respect to the correctness of the account items and balance due.... The agreement may be implied by the retention of an account statement for an unreasonable period of time without objection." Citibank (S.D.) N.A. v. Jones, 272 A.D.2d 815, 815 (3rd Dept. 2000) (internal quotation marks and citations omitted). "To establish its prima facie entitlement to judgment as a matter of law to recover on an account stated, a plaintiff must show that the defendant received the plaintiffs account statements for payment and retained these statements for a reasonable period of time without objection." Cach, LLCk v. Aspir, 137 A.D.3d 1065,1066 (2nd Dept. 2016). Here, Barrett's affidavit states that he reviewed Plaintiffs business records, including account information concerning this credit card including the account history, the credit card agreement and the fact that defendant has failed to make payments on the account, leaving an unpaid balance. By these submissions, Plaintiff has shown prima facie its entitlement to summary judgment under an account stated.
The burden was thus shifted to Defendant to raise a triable issue of fact. Defendant does not dispute usage of the credit card or failure to pay per the terms of the agreement; she simply states that she is unable to make payments. Therefore, Defendant has not raised a triable issue of fact with respect to breach of contract. Similarly, with respect to an account stated, Defendant has not submitted any evidence denying that she made purchases with the credit card, or that she received monthly statements showing the charges, payments and amount due. Based upon this, Defendant has failed to raise a triable issue of fact with respect to breach of contract or account stated.
CONCLUSION
Based on the foregoing discussion, it is hereby
ORDERED, ADJUDGED AND DECREED, that Plaintiffs motion for summary judgment is GRANTED; and it is further
ORDERED, ADJUDGED AND DECREED, that the Plaintiff shall have judgment against and shall recover of the Defendant. Julie A. Bill, in the sum of $9,078.13, plus costs and disbursements, and that Plaintiff shall have execution thereof.