Amjad Alkeisi v. Bank of America N.A.

• Court: Court of Appeals of Kentucky
• Decided: April 28, 2022
• Docket: 2021 CA 000199
• Status: Unknown

Opinion

RENDERED: APRIL 29, 2022; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2021-CA-0199-MR

AMJAD ALKEISI APPELLANT

APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE BARRY WILLETT, JUDGE ACTION NO. 19-CI-002513

BANK OF AMERICA N.A. APPELLEE

OPINION AFFIRMING

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BEFORE: ACREE, JONES, AND K. THOMPSON, JUDGES.

ACREE, JUDGE: Appellant, Amjad Alkeisi, appeals the Jefferson Circuit Court’s

order granting summary judgment in favor of Appellee, Bank of America. Having

reviewed the record, we affirm.

Bank of America filed this debt collection action on April 23, 2019,

alleging Alkeisi accumulated $30,434.69 in credit card debt and failed to make

payments on that credit card balance. Alkeisi filed his answer on May 9, 2019. On November 17, 2020, about eighteen months after initiating the

action, Bank of America moved for summary judgment. A week later, on

November 25, Appellant served Bank of America with his response repeating the

substance of his answer to the complaint that he did not owe the money. He failed

to direct the circuit court to evidence in the record and presented no opposing

affidavit as permitted by CR1 56.03 to counter the bank’s proof for the

nonexistence of a genuine issue regarding the material facts. Instead, he noted his

simultaneous service of discovery on the bank and asserted his hope that, based on

the bank’s responses, he “may have a viable Counterclaim” and might learn that

Bank of America failed to pay for the “services/products [Alkeisi] allegedly

purchased . . . from the original creditor . . . .”

The circuit court granted summary judgment in favor of Bank of

America on December 30, 2020 – before Bank of America responded to Alkeisi’s

discovery requests. Alkeisi now appeals the order granting summary judgment,

arguing summary judgment was premature.

Bank of America argues summary judgment was proper because no

genuine issue of material fact existed as to the amount of Alkeisi’s liability. Bank

of America produced credit card records detailing the amount Alkeisi owed. An

1 Kentucky Rules of Civil Procedure.

-2- accompanying affidavit showed the previous 27 months of credit card activity,

enumerating record of purchases, debits, credits, and payments on the account.

This affidavit showed a balanced owed of $30,434.69.

Alkeisi argues the circuit court granted summary judgment

prematurely and the discovery answers Bank of America failed to give would show

a genuine issue of material fact existed. Alkeisi argues, with no supporting

authority, the circuit court cannot grant summary judgment when discovery is

served on a party, that party has not responded to the discovery requests, and the

court had notice of this prior to granting summary judgment. We are not

persuaded by Alkeisi’s argument.

A circuit court properly grants summary judgment “if the pleadings,

depositions, answers to interrogatories, stipulations, and admissions on file,

together with the affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment as a matter of

law.” CR 56.03. “An appellate court’s role in reviewing a summary judgment is

to determine whether the trial court erred in finding no genuine issue of material

fact exist[ed] and the moving party was entitled to judgment as a matter of law.”

Feltner v. PJ Operations, LLC, 568 S.W.3d 1, 3 (Ky. App. 2018). Thus, appellate

courts use de novo review when reviewing a circuit court’s order granting

-3- summary judgment. Cmty. Fin. Servs. Bank v. Stamper, 586 S.W.3d 737, 741 (Ky.

2019).

However, “where the movant shows that the adverse party could not

prevail under any circumstances” summary judgment is appropriate. Steelvest, Inc.

v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 480 (Ky. 1991). “[A] party opposing

a properly supported summary judgment motion cannot defeat that motion without

presenting at least some affirmative evidence demonstrating that there is a genuine

issue of material fact requiring trial.” Hubble v. Johnson, 841 S.W.2d 169, 171

(Ky. 1992) (citing Steelvest, 807 S.W.2d at 480). The nonmovant “cannot rely on

the hope that the trier of fact will disbelieve the movant’s denial of a disputed

fact . . . .” Steelvest, 807 S.W.2d at 481 (quoting Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 257, 106 S. Ct. 2505, 2514, 91 L. Ed. 2d 202 (1986)).

In debt collections matters, a plaintiff need only prove three elements

to be entitled to summary judgment. Bruner v. Discover Bank, 360 S.W.3d 774,

778 (Ky. App. 2012). The creditor must establish proof of the debt, proof of how

the debt was calculated, and proof the defendant is the person responsible for the

debt. Id. Bank of America’s motion and accompanying affidavit with Alkeisi’s

credit card record readily satisfy these three requirements. The evidence shows

Alkeisi owned the account, incurred debt on the account, and did not make

payments on the account. The 27-month ledger shows how Bank of America

-4- calculated the debt and how Alkeisi accumulated the debt. The credit card record

is 120 pages long.

In response to this evidence, Alkeisi must show a genuine issue of

material fact exists. Feltner, 568 S.W.3d at 3. Additionally, we are to view the

record in a light most favorable to Alkeisi, awarding summary judgment only if no

genuine issue as to any material fact exists which would make it impossible, as a

practical matter, for Alkeisi to prevail. Steelvest, 807 S.W.2d at 480, 483. “[T]he

term ‘impossible’ is to be used in a practical sense, not in an absolute sense.”

Patton v. Bickford, 529 S.W.3d 717, 723 (Ky. 2016). Additionally, Alkeisi has the

burden of showing what additional discovery is sought and why “facts essential to

justify his opposition” are not available. CR 56.06. Appellant failed to meet this

burden.

Appellant here may not rely on unanswered discovery requests to

overcome the evidence presented by Bank of America. Alkeisi argues that certain

pieces of requested discovery, if answered, could show a genuine issue of material

fact exists, and summary judgment should, therefore, not be granted until Bank of

America responds to those discovery requests. This argument merely relies on

“hope” that evidence creating a genuine issue will surface; it is insufficient to

overcome the summary judgment standard.

-5- Appellant has not stated any concrete reasons why these discovery

answers will provide evidence of a genuine dispute as to a material fact. Appellant

also has not advanced a theory of what potential evidence would be found that

defeats Bank of America’s motion. Appellant points to no authority suggesting the

circuit court must wait to grant summary judgment when there are discovery

requests gone unanswered. In reviewing Alkeisi’s response to summary judgment,

he merely hopes discovery will unearth evidence to reduce his credit card debt in

some way. Ultimately, Alkeisi advances no concrete evidence or potential

evidence hidden by discovery that could bring Bank of America’s debt collection

action into question.

Thus, the circuit court properly granted summary judgment.

Accordingly, we affirm.

ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Scott S. Simon Robert K. Hogan Louisville, Kentucky Cincinnati, Ohio

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