Citibank, N.A. v. Kevin D. Surber

• Court: Court of Appeals of Iowa
• Decided: September 10, 2015
• Docket: 14-0190
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 14-0190 Filed September 10, 2015

CITIBANK, N.A., Plaintiff-Appellee,

vs.

KEVIN D. SURBER, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Johnson County, Paul D. Miller,

Judge.

Kevin Surber appeals the district court’s judgment in favor of Citibank.

AFFIRMED.

Kevin D. Surber, Tiffin, appellant pro se.

Adrienne E. Sula of Rausch, Sturm, Enerson, Israel & Hornik, L.L.C., Des

Moines, for appellee.

Considered by Vogel, P.J., and Potterfield and Mullins, JJ. 2

VOGEL, P.J.

Following a bench trial, Kevin Surber appeals the district court’s judgment

in favor of Citibank. He asserts the court erred in finding Citibank had met its

burden of proof showing Surber had failed to satisfy his payment obligations to

Citibank. We conclude Citibank met its burden establishing its right to recovery

on an account stated; consequently, we affirm the judgment of the district court.

Surber opened a credit card account with Citibank (then known as

Universal Bank) in 1992. He used the card and made regular payments until

May 2011, at which point he ceased paying on the balance. No evidence of a

dispute with the billing statements was entered into the record, and Citibank

closed Surber’s account due to non-payment; it then charged off Surber’s

account in December 2011, after placing the account with a law firm for collection

purposes.

On December 9, 2011, Citibank sent Surber a validation notice, pursuant

to 15 U. S. C. § 1692 (2011), and notice of right to cure default, pursuant to Iowa

Code section 537.5110 (2011). Exhibits establish these notices, as well as the

credit card statements, were sent to the address Surber provided to Citibank.

Surber failed to cure the default, and Citibank filed suit on March 12, 2012,

seeking a judgment of $23,108.70. A bench trial was held on October 10, 2013,

in which Surber appeared pro se. His legal argument consisted of the assertion

that Citibank did not meet its burden of proof. Surber declined the opportunity to 3

testify but did present his position to the court. The district court entered an order

finding in favor of Citibank, and Surber appeals.1

When a party is challenging a district court’s ruling in a case tried at law,

we review for correction of errors at law. See Capital One Bank (USA), N.A. v.

Denboer, 791 N.W.2d 264, 269 (Iowa Ct. App. 2010). We are bound by the

court’s findings of fact if they are supported by substantial evidence. See id.

Because this case is based on a consumer credit agreement, it is subject

to the provisions of Iowa Code chapter 537. See id. at 275 (noting consumer

credit card transactions are governed by chapter 537). To obtain a judgment

against the consumer in an action to recover on an account stated, the credit

card company must establish, by a preponderance of the evidence, the following:

(1) an agreement with the consumer; (2) a final statement showing the

consumer’s address; (3) competent evidence showing the billing statements

were sent to the consumer at the address provided by the consumer, the sum

total of which were summarized in the final statement; and (4) evidence showing

the consumer used the account and did not object to the monthly statements.

Iowa Code § 537.5114(1); see also Denboer, 791 N.W.2d at 275–76.

We agree with the district court Citibank proved each element of its claim

by a preponderance of the evidence. Exhibits establish Surber had a credit card

account with Citibank, and that Citibank issued a final statement—sent to

Surber’s address—claiming $23,108.70 as the amount owed. The credit card

1 Surber has made a number of arguments in his pro se brief that stray from the issues preserved. Consequently, apart from his dispute of the underlying merits, we decline to address Surber’s other claims. See Channon v. United Parcel Serv., Inc., 629 N.W.2d 835, 865 (Iowa 2001) (declining to address claims that were not properly argued in the party’s brief). 4

statements entered into evidence were also sent to the address provided by

Surber to Citibank. Moreover, Surber failed to contradict—with supporting

authority or legally cognizable claims—any of this evidence, nor did he show he

ever objected to any of the monthly statements. Therefore, Citibank met its

burden establishing each element of its account-stated action. See Denboer,

791 N.W.2d at 276. Consequently, we affirm the district court’s judgment in favor

of Citibank.