Commonwealth Financial Systems v. Smith

13 Pa. D. & C.5th 1, 2010 Pa. Dist. & Cnty. Dec. LEXIS 212
CourtPennsylvania Court of Common Pleas, Delaware County
DecidedJanuary 26, 2010
Docketno. 06-53273
StatusPublished

This text of 13 Pa. D. & C.5th 1 (Commonwealth Financial Systems v. Smith) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Delaware County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth Financial Systems v. Smith, 13 Pa. D. & C.5th 1, 2010 Pa. Dist. & Cnty. Dec. LEXIS 212 (Pa. Super. Ct. 2010).

Opinion

BURR, J,

The plaintiff, Commonwealth Financial Systems, has appealed from the [3]*3order of this court denying the plaintiff’s motion for post-trial relief in this action to collect a credit card debt allegedly due and owing by the defendant, Larry Smith. The plaintiff asserted error in the sort of evidentiary rulings that have become a growing subject in recent case law involving the collection efforts of second and third party purchasers of bundles of credit card debts against the customers of the original lenders. The issuer of the credit card at the core of this action was Citibank. In this case of apparent first impression, plaintiff failed to satisfy the requirements for the admissibility of business records under Pa.R.E. 803(6), and particularly the requirement that a business record be created “by, or from information transmitted by, a person with knowledge ____” Therefore, the chain of evidence presented did not adequately authenticate the computerized business records necessary to establish their trustworthiness and reliability sufficient to permit their admission into evidence.

The plaintiff also failed to present to the court a signed credit card application or an original contractual agreement between Citibank and the defendant; instead, the agreement proffered by the plaintiff post-dated the contract alleged to have been entered into by the defendant by seven years. This failure of the plaintiff to establish even the first element of its action for breach of contract against the defendant is equally fatal to any and all claims raised in this appeal.

The above-captioned matter was assigned to this court on plaintiff’s appeal from a finding in favor of the defendant on December 23,2008 by a panel of arbitrators. [4]*4The complaint filed by the plaintiff alleged that plaintiff’s predecessor, Citibank, had issued the defendant a revolving credit card under account number **************** on or about November of 1989, and that the defendant had defaulted on her payments to Citibank both sometime in January of2002 and on February 7,2002.1 (Complaint, paragraphs 5 and 4, respectively.) The plaintiff appended, as “exhibit A” to its complaint, two monthly billing statements from that time period, but no listing or description of expenditures over the long term on which this debt was purportedly based. The first of these [5]*5statements was issued to the defendant on February 25, 2002 and reflected receipt of a last payment posted by Citibank on February 7, 2002. (N.T. 24, 29-31; trial exhibit P-2.) That billing statement asserted that defendant’s next payment of $44 on a balance of $2,157.01 was due as of March 20,2002. The second billing statement appended to the complaint was issued to the defendant on March 26, 2002 and reflected a late fee of $35 on a past due payment that had not yet been received. (N.T. 32, 36-37; trial exhibit P-2.)

A thorough perusal of the relevant exhibits appended to the complaint, which was filed on March 7,2006, adduces that, if defendant’s default could be dated from March 20,2002, the complaint had been filed within the applicable four-year statute of limitations for a cause of action alleging breach of contract. 42 Pa.C.S. §5525(a).2 Nevertheless, inartful and inconsistent pleadings by the plaintiff created unnecessary tensions in resolving the question as to when the defendant’s alleged default on this account had actually taken place, whether in January of2002 or February 7,2002, as alleged in the complaint, [6]*6or by the failure to make a payment by March 20,2002, or on March 26,2002 when Citibank charged defendant a late fee for missing that payment according to the exhibits appended to the complaint.3

The plaintiff appended, as “exhibit B” to its complaint, a standard form copy of a 1996 “Citibank card agreement”, formulated nearly seven years following the initiation of the defendant’s Citibank credit card account and showing no signature of the defendant. This document reflects an identification number of “********/ *******”, a number bearing no relationship to the account number at issue, plus the dates: “Rev. 9/96 Pr. 7/97” reflecting the dates of the agreement’s revisions. (N.T. 17; trial exhibit P-1.) The allegation of 23.99 percent interest per annum alleged to be due and owing by the defendant in paragraphs 6 and 9 of the complaint, on an account that had been originated in 1989, is clouded by the 1996 card agreement’s statement that its per annum interest percentage would be raised from 12.9 percent to an amount “not... lower than 19.8 percent” in the event of default in payments on the account, and not the 23.99 percent therefor that was alleged in the complaint. (N.T. 65.) This latter figure is said to include the extant prime interest rate as of the year 1996 or 1997, a rate that would surely differ from that in existence in 1989.

[7]*7Statements in this document also leave open the questions as to whether or not the defendant had been allowed a variable annual rate of interest on the account in addition to the actual escalated rate of interest that could be charged upon default, besides the quantum of attorney fees that assertedly could be recovered in that event.4 Citibank’s billing notices to the defendant stated a 12.150 percent “annual percentage rate” of interest owing on standard purchases in the amount of $ 1,767.64 and 2.900 percent on “Balance 1” purchases in the amount of $398.03, plus “periodic rates” of interest on both groups of purchases respectively of0.03329 percent and 0.00795 percent as of February 25, 2002 and March 26, 2002. It is here noted that the defendant apparently did not use the card for cash advances prior to the relevant time, as none appear as due and owing on either of the proffered billing statements. And clearly, any rates of interest reflected in a 1996 standard form unsigned Citibank card agreement cannot be alleged as being in effect for a Citibank credit card issued to the defendant in 1989.

The plaintiff appended, as “exhibit C” to the complaint, a “bill of sale, assignment and assumption agreement” dated July 14, 2004 between Citibank and NCOP Capital Inc., wherein Citibank, as seller, conveyed to NCOP Capital Inc. and to its successors and assigns “the ac[8]*8counts described in section 1.2 of the agreement.” (N.T. 3 8; trial exhibit P-3.) S ection 1.2 was not attached to the plaintiff’s complaint, but was presented and discussed during the trial, albeit not for purposes of admission as an exhibit. (N.T. 41-45.) Citibank’s signatory on this “bill of sale” was its CFO, Douglas C. Morrison, andNCOP’s signatory was Michael B. Meringolo, as senior vice-president of that company.

The plaintiff appended, as “exhibit D” to the complaint, a “bill of sale, assignment and assumption agreement” dated July 19, 2004 between NCOP Capital Inc. and the plaintiff, Commonwealth Financial Systems Inc., wherein NCOP, as seller, conveyed to the plaintiff and to its successors and assigns “the accounts described in section 1.2 of the agreement.” (N.T. 40; trial exhibit P-4.) Here again, section 1.2 was not attached to the plaintiff’s complaint, but was presented and discussed at trial, albeit not for purposes of admission as an exhibit. (N.T. 41-45.) The plaintiff’s signatory on this “bill of sale, assignment and purchase agreement” was its president, JohnKotula, andNCOP’s signatory was, again, Michael B. Meringolo, as senior vice-president of that company.

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Bluebook (online)
13 Pa. D. & C.5th 1, 2010 Pa. Dist. & Cnty. Dec. LEXIS 212, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-financial-systems-v-smith-pactcompldelawa-2010.