Bruner v. Discover Bank

360 S.W.3d 774, 2012 WL 163029, 2012 Ky. App. LEXIS 11
CourtCourt of Appeals of Kentucky
DecidedJanuary 20, 2012
DocketNo. 2011-CA-000197-MR
StatusPublished
Cited by4 cases

This text of 360 S.W.3d 774 (Bruner v. Discover Bank) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bruner v. Discover Bank, 360 S.W.3d 774, 2012 WL 163029, 2012 Ky. App. LEXIS 11 (Ky. Ct. App. 2012).

Opinion

OPINION

MOORE, Judge:

On May 4, 2009, DFS Services, LLC, filed this collection action in Jefferson Circuit Court against Kenneth A. Bruner, naming itself “Discover Bank” in its complaint and thereafter referring to itself as “Discover Bank c/o DFS Services, LLC” in all of its subsequent pleadings. In substance, DFS’s complaint alleged that Bruner owed Discover Bank a credit card debt of $9,464.82, had defaulted upon that debt, and that Discover Bank was due 19.8% interest on that debt from Bruner pursuant to the terms of a cardmember agreement between Discover Bank and Bruner.1 In part, Bruner responded by asserting that DFS had no standing to sue as a real party in interest, per Civil Rule (CR) 17.01.2 Bruner also requested, approximately 17 months subsequent to when DFS filed its complaint, that the court order this matter submitted to arbitration pursuant to the terms of the cardmember agreement.3

After a period of motion practice, DFS moved for summary judgment. In its order granting DFS summary judgment, the circuit court noted that Bruner had raised the issue of DFS’s standing to sue as a real party in interest. Nonetheless, the circuit court held that the evidence of record conclusively established that “Discover Bank is the owner of the subject debt and the real party in interest,” and that “Mr. [776]*776Bruner is liable to Discover Bank for the claimed debt.” In the same order, the circuit court also denied Bruner’s request to arbitrate. Thereafter, Bruner appealed. After careful review, we vacate and remand.

A preliminary issue raised by DFS is whether Bruner’s appeal should be dismissed either on the basis of CR 73.02(l)(a) or CR 73.03(1). By way of review, CR 73.02(l)(a) provides that “[t]he notice of appeal shall be filed within 30 days after the date of notation of service of the judgment or order....” In its argument relating to this Civil Rule, DFS points out that the final order in this matter is dated November 19, 2010, and that Bruner filed his notice of appeal on January 27, 2011. Therefore, DFS reasons that Bruner filed an untimely notice of appeal and, thus, failed to properly invoke the jurisdiction of this Court.

However, DFS overlooks that Bruner filed a timely CR 59.05 motion to vacate the November 19, 2010 order, thereby rendering the November 19, 2010 order interlocutory for purposes of filing an appeal until the circuit court overruled his motion on December 28, 2010. Kentucky Farm Bureau Ins. Co. v. Gearhart, 853 S.W.2d 907, 910 (Ky.App.1993). Because January 27, 2011, is within 30 days of December 28, 2010, DFS’s argument lacks merit.

Next, CR 73.03(1) provides that “[t]he notice of appeal shall ... identify the judgment, order or part thereof appealed from.” As it relates to this Civil Rule, DFS points out that Bruner’s notice of appeal actually lists the circuit court’s order of December 28, 2010 (which overruled his CR 59.05 motion), rather than the circuit court’s order of November 19, 2010. DFS cites McFerran v. Postal Service, Inc., 402 S.W.2d 83, 84 (Ky.1966), for the proposition that an order overruling a CR 59.05 motion to vacate judgment is not appealable; that CR 73.03 requires strict compliance; and that failure to strictly comply with that rule warrants the dismissal of an appeal. Accordingly, DFS argues that Bruner’s appeal should be dismissed on this basis as well.

However, since 1986, Kentucky has adopted a policy of substantial compliance rather than strict compliance regarding precisely this issue. See, e.g., Ready v. Jamison, 705 S.W.2d 479 (Ky.1986). And, because the judgment appealed from' (ie., the November 19, 2010 judgment) is obvious to this Court, and DFS has demonstrated no substantial harm or prejudice, our policy of substantial compliance dictates that dismissing Bruner’s appeal on this basis would also be inappropriate. See id. at 481-82.

A preliminary issue raised by Bruner is the matter of the identity, interest, and standing of DFS, the sole party prosecuting this action against him; his confusion owes largely to the fact that DFS initially referred to itself as “Discover Bank” in its complaint, and then changed its name in all subsequent pleadings to “Discover Bank c/o DFS Services, LLC.”

Regarding its identity, “DFS Services, LLC” is not “Discover Bank”; rather, the cardmember agreement attached to its pleadings lists DFS as an “affiliate” of Discover Bank. In turn, “c/o” is the abbreviation for “care of.” Meeriam-WebsteR’s Collegiate Dictionary 236 (11th ed.2003). “Care of,” used in a legal sense, denotes a disclosed agency relationship. See, e.g., CSX Transp. Co. v. Novolog Bucks County, 502 F.3d 247, 258 (3rd Cir.2007). And, in its appellate brief, DFS represents that it is Discover Bank’s agent in this matter; to this effect, DFS states that “[tjhis action was brought by Discover [Bank], care of its servicing subsidiary DFS Services, [777]*777LLC, to recover the debt owed to Discover [Bank].”

As an aside, a subsidiary company’s identity and legal existence is independent from that of its parent. Square D Co. v. Kentucky Bd. of Tax Appeals, 415 S.W.2d 594, 601 (Ky.1967). It necessarily follows that a subsidiary has no inherent ownership interest of, nor inherent right to collect upon, an obligation that is owed solely to and owned solely by its parent. Moreover, even if a subsidiary were to act as its parent’s agent, an agent usually has no implied power to institute legal proceedings on behalf of its principal even with respect to the subject matter of its agency. See 3 Am.Jur.2d Agency § 95.

That said, nothing prohibits one company from specifically designating another as its agent for the purpose of collecting a debt and instituting legal proceedings on its behalf. Id. Such an agent is often referred to as a “servicer,” and the nature of such an agency, along with the matter of a purported servicing agent’s standing to bring a collection action against a debtor in the context of a credit card or foreclosure action, was previously discussed in Green Tree Servicing LLC v. Sanders, No. 2005-CA-000371-MR, 2006 WL 2033668 (Ky.App. July 21, 2006).4 There, a panel of this Court turned to federal bankruptcy precedent for guidance:

Although asserted in the context of a bankruptcy ease, the question of the ser-vicer’s standing to assert proofs of claims on behalf of a credit card issuer was resolved in Greer v. O’Dell [, 305 F.3d 1297 (11th Cir.2002) ]. The loan servicer was determined to be the real party in interest to “conduct through licensed counsel, the legal affairs of the investor relating to the debt that it services.” [Id.]

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Cite This Page — Counsel Stack

Bluebook (online)
360 S.W.3d 774, 2012 WL 163029, 2012 Ky. App. LEXIS 11, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bruner-v-discover-bank-kyctapp-2012.