Citibank (South Dakota) N.A. v. Mayo

58 So. 3d 960, 2011 La. App. LEXIS 48, 2011 WL 228474
CourtLouisiana Court of Appeal
DecidedJanuary 26, 2011
DocketNo. 45,945-CA
StatusPublished
Cited by2 cases

This text of 58 So. 3d 960 (Citibank (South Dakota) N.A. v. Mayo) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Citibank (South Dakota) N.A. v. Mayo, 58 So. 3d 960, 2011 La. App. LEXIS 48, 2011 WL 228474 (La. Ct. App. 2011).

Opinion

MOORE, J.

h Johnathan Mayo appeals a summary judgment ordering him to pay the balance on a Citibank (South Dakota) NA MasterCard account, $16,233.84, plus contractual interest of 29.99% and an attorney fee of 25%. For the reasons expressed, we amend and affirm.

Procedural History

Citibank’s petition alleged that Mayo agreed to the terms of the account agreement when he opened the account; he failed to pay despite amicable demand; and Citibank had previously sent him a demand letter that complied with La. R.S. 9:2781, entitling it to an attorney fee. Mayo answered, in proper person, that all Citibank’s information was false and he never executed any document with respect to this MasterCard account.

Citibank then filed this motion for summary judgment. In support, it attached the affidavit of Leola Phenix, an agent for Citicorp Credit Services, which does debt collection for Citibank. She stated that Mayo applied for the MasterCard by phone on May 23, 2002; he received with the card a “card agreement” setting out all terms and conditions; he accepted these by using the card and making some payments; but he still owed $16,233.84. She attached certified copies of (1) the latest card agreement, dated June 2006, (2) Mayo’s monthly statements from June 2002 through February 2008, and (3) the last four checks for payments on the account. By statement of uncontested facts, Citibank asserted that the card agreement has been amended over the years, but Mayo consented to each change by continuing to use the card, and that the 2006 version attached to Ms. Phenix’s affidavit was the current version. In support of its motion for summary judgment, Citibank argued that Mayo had never contested this account, and because the card ^agreement specified acceptance by using the card, no signed agreement was necessary. Bank of Louisiana v. Berry, 94-576 (La.App. 5 Cir. 12/14/94), 648 So.2d 991.

Mayo opposed the motion, reiterating that Citibank had produced no document bearing his signature, only a copy of the card agreement, and that Ms. Phenix neither was an employee of Citibank nor had any personal knowledge of the account. By affidavit he asserted “no recollection of ever executing any document with regard to any credit card account that is the [962]*962subject of this lawsuit[.]” Mayo waived his appearance at the hearing.

After a brief hearing, the city court granted summary judgment as prayed for. Mayo retained counsel and filed this devol-utive appeal, raising three assignments of error. After receiving a copy of Mayo’s appellate brief, Citibank moved to supplement the record, pursuant to La. C.C.P. art. 1474 C(3), with copies of the discovery responses it had mailed to Mayo but not filed in the court record. The city court ordered supplementation on November 19, 2010.

Discussion

A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief sought by a litigant. Samaha v. Rau, 2007-1726 (La.2/26/08), 977 So.2d 880. Summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966 B. The mover need not negate every essential element of the opponent’s claim, action or |sdefense; he need only point out the absence of factual support for one or more essential element. La. C.C.P. art. 966 C(l). If the opponent then fails to produce support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. Id.; Babin v. Winn-Dixie La., 2000-0078 (La.6/30/00), 764 So.2d 37. Appellate courts review summary judgments de novo, using the same criteria that govern the lower court’s grant or denial of the motion. Hill v. Shelter Mutual Ins. Co., 2005-1783 (La.7/10/06), 935 So.2d 691.

By his first two assignments of error, Mayo urges the court was clearly wrong in holding the evidence sufficient to prove that he entered a contractual agreement with Citibank and in failing to assign any weight to his own affidavit disputing the account debt. He concedes that under Bank of Louisiana v. Berry, supra, no signed document was needed, but argues that Citibank failed to prove that he, Mayo, actually used the card. He shows that under 15 U.S.C. § 1643(b), the card issuer must prove that the use of the card was authorized, and argues that other jurisdictions have strictly enforced this. Crestar Bank NA v. Cheevers, 744 A.2d 1043 (D.C.App.2000); Michigan Nat’l Bank v. Olson, 44 Wash.App. 898, 723 P.2d 438 (1986). He also argues that if, as alleged by Citibank, this account was opened in 2002, it cannot possibly be governed by a card agreement dated June 2006, an anomaly which he contends defeated Citibank’s motion for summary judgment in Citibank South Dakota NA v. Stanford, 42,191 (La.App. 2 Cir. 5/9/07), 956 So.2d 756. Finally, he contends that Ms. Phenix’s affidavit was entitled to no weight as she works for a nonparty to the case and did not establish any personal knowledge of the claim, while by contrast his own |4affidavit swears “that he has never seen these statements prior to this litigation and * * ⅜ never used the card to incur any of the charges listed,” and hence creates a genuine issue.

Citibank concedes its burden of proving authorized use under 15 U.S.C. § 1643(b). It contends, however, that under another provision of the Consumer Credit Cost Disclosure law, 15 U.S.C. § 1666(a), any obligor who wishes to dispute a credit statement must give the creditor, within 60 days of the statement, written notice which “indicates the obligor’s belief that the statement contains a billing error and the amount of such billing error[.]” Citibank argues that Mayo never challenged any [963]*963statement; to the contrary, he made many payments and continued using the card. Citibank concludes that it is too late for Mayo to argue that his lengthy credit history was all unauthorized use.

The record fully supports Citibank’s position. The certified copies of Mayo’s monthly statements show thát he made two large balance transfers to this account, $5,000 in 2002 and $7,200 in 2004, which he paid off by April 2005; however, he made additional balance transfers of over $7,400 later in 2004 and a took a cash advance of $2,250 in 2006, after which he made only minimum payments. The final payment was a check drawn on Mayo and his -wife’s joint account for $323.00 on September 1, 2006, and signed by his wife. Simply put, Mayo never contested any statement as he might have under 15 U.S.C. § 1666(a); this distinguishes his position from that of the obligor in Michigan Nat’l Bank v. Olson, supra.

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