RENDERED: APRIL 29, 2022; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2021-CA-0114-MR
RUBY R. BENNETT APPELLANT
APPEAL FROM HARLAN CIRCUIT COURT v. HONORABLE KENT HENDRICKSON, JUDGE ACTION NO. 19-CI-00167
DISCOVER BANK C/O DISCOVER PRODUCTS, INC. APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: ACREE, DIXON, AND K. THOMPSON, JUDGES.
DIXON, JUDGE: Ruby R. Bennett, pro se, appeals from orders granting summary
judgment in favor of Discover Bank C/O Discover Products, Inc. (Discover) and
denying her motion for a new hearing, entered by the Harlan Circuit Court on
November 15, 2019, and December 16, 2020, respectively. After careful review of
the briefs, record, and law, we affirm. BACKGROUND FACTS AND PROCEDURAL HISTORY
On May 6, 2019, Discover filed the underlying collection action
alleging that Bennett had defaulted on $11,971.33 in credit card debt. Bennett, pro
se, answered, admitting that Discover had issued her a credit card in 1989, which
she regularly used until 2014; however, she denied being in default, claiming
instead she was entitled to credit for fraudulent charges which would offset her
account balance.
On October 24, 2019, after complying with Bennett’s request for
production of documents, Discover filed a motion for summary judgment.
Discover claimed it had conclusively established: (1) Bennett applied for and used
the account at issue; (2) the transactional history of charges and payments applied
to the account from 2012 to 2017; (3) Bennett had defaulted on the terms of the
account; and (4) the amount due and owing to Discover. Accordingly, Discover
argued that no genuine issue of material fact existed and it was entitled to a
judgment as a matter of law. Discover submitted the credit application signed by
Bennett; account statements from May 2012 through September 2017; an affidavit
from Ruby Cordova, a litigation support coordinator, attesting to the accuracy of
the account balance in default; and, by reference, the Cardmember Agreement,
which was attached to the complaint. Bennett argued that her claim of entitlement
to credit for fraudulent charges was an issue of material fact which, if proven,
-2- would preclude Discover’s right to relief. The motion came before the court on
November 14, 2019. Bennett did not appear, and the court granted Discover’s
motion by order entered November 15, 2019.
Bennett promptly filed multiple post-judgment motions, including a
motion citing CR1 55.02 and CR 60.02, seeking to set aside what she characterized
as a default judgment. By order entered December 16, 2020, the court, treating the
motion as one to vacate summary judgment, denied it and further denied as moot
Bennett’s remaining motions. This appeal timely followed. We will introduce
additional facts as they become relevant.
ANALYSIS
Bennett asserts the court erred in denying her motion for a new
hearing. In support, Bennett states that at the time of the November 14, 2019,
hearing, she had been recovering from double pneumonia for two months and,
having decided to forgo the cost of representation, the stress and challenge of self-
representation had weakened her condition. Events culminated when, instead of
taking her prescribed oxygen treatment, Bennett prepared for the hearing
throughout the night of November 13, 2019, and most of the following morning,
which rendered her too weak to appear at court. As a result, Bennett argues she
was unfairly deprived of her opportunity to present the court with pertinent legal
1 Kentucky Rules of Civil Procedure.
-3- authority and, consequently, the court entered a judgment unsupported in fact or
law.
CR 59.01 provides that a party may be granted a new trial where,
relevantly: the party was prevented from having a fair trial; the court erred in
assessing the amount of recovery; the verdict is contrary to law; or the party
discovers new material evidence which could not with reasonable diligence have
been discovered and produced at trial. Whether to grant or deny a new trial is
within the trial court’s sound discretion, and its determination is entitled to great
deference on appeal. CertainTeed Corp. v. Dexter, 330 S.W.3d 64, 72 (Ky. 2010).
“Even if the trial court finds that one of the grounds [enumerated in CR 59.01]
exists, it is not bound in every case to grant a new trial. The issue could be moot,
or the grounds may be off-set by other factors.” Id. Accordingly, we review the
trial court’s decision for an abuse of discretion. Id. An abuse of discretion occurs
when the trial court’s decision is arbitrary, unreasonable, unfair, or unsupported by
sound legal principals. Id. (quoting Commonwealth v. English, 993 S.W.2d 941,
945 (Ky. 1999)).
It has long been held that to merit relief, a party’s absence from a
proceeding or inability to present evidence must have been unavoidable through
the exercise of reasonable skill and diligence. Mason v. Lacy, 274 Ky. 21, 117,
-4- S.W.2d 1026 (1938) (decided under the predecessor of CR 59.01, Civ. Code Prac.2
§ 518). Herein, while we are sympathetic to Bennett’s hardship, we cannot agree
that her absence was unavoidable when, rather than seek a continuance or retain
counsel, she engaged in a course of conduct that she acknowledges precluded her
from meeting her known health needs. Further, though Bennett claims she was
deprived of her right to present a defense, her argument regarding fraudulent
charges was fully presented through her response to Discover’s motion and was
considered by the court prior to its judgment. Thus, Bennett’s substantial rights
were not affected by her absence from the hearing, and there was no basis to vacate
the judgment. CR 61.01. Accordingly, we conclude the court did not abuse its
discretion.
Next, Bennett contends the court erred by granting summary judgment
where her assertion of fraudulent charges created an issue of material fact as to
whether, and to what extent, her account was in default. Bennett’s claim revolves
around what she has characterized as 283 unauthorized charges, totaling
$43,019.41, spanning from May 2012 to December 2013 and paid by Discover to
the Bresky Law Firm. Bennett asserts that, pursuant to the Fair Credit Billing Act,
2 Civil Code of Practice which was replaced by the enactment of Kentucky Rules of Civil Procedure in 1953. 3 In her brief, Bennett asserts there were 30 unauthorized charges; however, she concedes that two of the 30 identified were, in fact, authorized.
-5- 15 U.S.C.4 § 1666 (2011), Discover is required to hold her harmless for fraudulent
charges exceeding $50 and that her alleged default will be satisfied after a credit
for these erroneous charges is applied to the account.5 In opposition, Discover
argues Bennett waived protection from liability by her failure to provide Discover
notice of the alleged unauthorized charges within 60 days of issuance of the
account statement, as required by both the Cardmember Agreement and 12 C.F.R.6
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RENDERED: APRIL 29, 2022; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2021-CA-0114-MR
RUBY R. BENNETT APPELLANT
APPEAL FROM HARLAN CIRCUIT COURT v. HONORABLE KENT HENDRICKSON, JUDGE ACTION NO. 19-CI-00167
DISCOVER BANK C/O DISCOVER PRODUCTS, INC. APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: ACREE, DIXON, AND K. THOMPSON, JUDGES.
DIXON, JUDGE: Ruby R. Bennett, pro se, appeals from orders granting summary
judgment in favor of Discover Bank C/O Discover Products, Inc. (Discover) and
denying her motion for a new hearing, entered by the Harlan Circuit Court on
November 15, 2019, and December 16, 2020, respectively. After careful review of
the briefs, record, and law, we affirm. BACKGROUND FACTS AND PROCEDURAL HISTORY
On May 6, 2019, Discover filed the underlying collection action
alleging that Bennett had defaulted on $11,971.33 in credit card debt. Bennett, pro
se, answered, admitting that Discover had issued her a credit card in 1989, which
she regularly used until 2014; however, she denied being in default, claiming
instead she was entitled to credit for fraudulent charges which would offset her
account balance.
On October 24, 2019, after complying with Bennett’s request for
production of documents, Discover filed a motion for summary judgment.
Discover claimed it had conclusively established: (1) Bennett applied for and used
the account at issue; (2) the transactional history of charges and payments applied
to the account from 2012 to 2017; (3) Bennett had defaulted on the terms of the
account; and (4) the amount due and owing to Discover. Accordingly, Discover
argued that no genuine issue of material fact existed and it was entitled to a
judgment as a matter of law. Discover submitted the credit application signed by
Bennett; account statements from May 2012 through September 2017; an affidavit
from Ruby Cordova, a litigation support coordinator, attesting to the accuracy of
the account balance in default; and, by reference, the Cardmember Agreement,
which was attached to the complaint. Bennett argued that her claim of entitlement
to credit for fraudulent charges was an issue of material fact which, if proven,
-2- would preclude Discover’s right to relief. The motion came before the court on
November 14, 2019. Bennett did not appear, and the court granted Discover’s
motion by order entered November 15, 2019.
Bennett promptly filed multiple post-judgment motions, including a
motion citing CR1 55.02 and CR 60.02, seeking to set aside what she characterized
as a default judgment. By order entered December 16, 2020, the court, treating the
motion as one to vacate summary judgment, denied it and further denied as moot
Bennett’s remaining motions. This appeal timely followed. We will introduce
additional facts as they become relevant.
ANALYSIS
Bennett asserts the court erred in denying her motion for a new
hearing. In support, Bennett states that at the time of the November 14, 2019,
hearing, she had been recovering from double pneumonia for two months and,
having decided to forgo the cost of representation, the stress and challenge of self-
representation had weakened her condition. Events culminated when, instead of
taking her prescribed oxygen treatment, Bennett prepared for the hearing
throughout the night of November 13, 2019, and most of the following morning,
which rendered her too weak to appear at court. As a result, Bennett argues she
was unfairly deprived of her opportunity to present the court with pertinent legal
1 Kentucky Rules of Civil Procedure.
-3- authority and, consequently, the court entered a judgment unsupported in fact or
law.
CR 59.01 provides that a party may be granted a new trial where,
relevantly: the party was prevented from having a fair trial; the court erred in
assessing the amount of recovery; the verdict is contrary to law; or the party
discovers new material evidence which could not with reasonable diligence have
been discovered and produced at trial. Whether to grant or deny a new trial is
within the trial court’s sound discretion, and its determination is entitled to great
deference on appeal. CertainTeed Corp. v. Dexter, 330 S.W.3d 64, 72 (Ky. 2010).
“Even if the trial court finds that one of the grounds [enumerated in CR 59.01]
exists, it is not bound in every case to grant a new trial. The issue could be moot,
or the grounds may be off-set by other factors.” Id. Accordingly, we review the
trial court’s decision for an abuse of discretion. Id. An abuse of discretion occurs
when the trial court’s decision is arbitrary, unreasonable, unfair, or unsupported by
sound legal principals. Id. (quoting Commonwealth v. English, 993 S.W.2d 941,
945 (Ky. 1999)).
It has long been held that to merit relief, a party’s absence from a
proceeding or inability to present evidence must have been unavoidable through
the exercise of reasonable skill and diligence. Mason v. Lacy, 274 Ky. 21, 117,
-4- S.W.2d 1026 (1938) (decided under the predecessor of CR 59.01, Civ. Code Prac.2
§ 518). Herein, while we are sympathetic to Bennett’s hardship, we cannot agree
that her absence was unavoidable when, rather than seek a continuance or retain
counsel, she engaged in a course of conduct that she acknowledges precluded her
from meeting her known health needs. Further, though Bennett claims she was
deprived of her right to present a defense, her argument regarding fraudulent
charges was fully presented through her response to Discover’s motion and was
considered by the court prior to its judgment. Thus, Bennett’s substantial rights
were not affected by her absence from the hearing, and there was no basis to vacate
the judgment. CR 61.01. Accordingly, we conclude the court did not abuse its
discretion.
Next, Bennett contends the court erred by granting summary judgment
where her assertion of fraudulent charges created an issue of material fact as to
whether, and to what extent, her account was in default. Bennett’s claim revolves
around what she has characterized as 283 unauthorized charges, totaling
$43,019.41, spanning from May 2012 to December 2013 and paid by Discover to
the Bresky Law Firm. Bennett asserts that, pursuant to the Fair Credit Billing Act,
2 Civil Code of Practice which was replaced by the enactment of Kentucky Rules of Civil Procedure in 1953. 3 In her brief, Bennett asserts there were 30 unauthorized charges; however, she concedes that two of the 30 identified were, in fact, authorized.
-5- 15 U.S.C.4 § 1666 (2011), Discover is required to hold her harmless for fraudulent
charges exceeding $50 and that her alleged default will be satisfied after a credit
for these erroneous charges is applied to the account.5 In opposition, Discover
argues Bennett waived protection from liability by her failure to provide Discover
notice of the alleged unauthorized charges within 60 days of issuance of the
account statement, as required by both the Cardmember Agreement and 12 C.F.R.6
§ 226.13 (2010), Truth in Lending (Regulation Z).
Summary judgment is appropriate “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. We
review to determine whether the trial court erred in finding no genuine issue of
material fact exists and the moving party was entitled to a judgment as a matter of
law. Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996). Because factual
findings are not at issue, a grant of summary judgment is reviewed de novo.
4 United States Code. 5 Bennett also repeatedly references 31 unauthorized payments, totaling $8,786.00, which she asserts were automatically drafted from her bank account to Discover from November 2014 through June 2017. However, as Bennett fails to identify how this claim invalidates the judgment, we need not further examine the issue. 6 Code of Federal Regulations.
-6- Pinkston v. Audubon Area Cmty. Servs., Inc., 210 S.W.3d 188, 189 (Ky. App.
2006).
Even accepting as true Bennett’s claims of fraud, we agree with
Discover that the court did not err. While Bennett argues it was sufficient that she
provided Discover notice within 60 days of her actual knowledge of the fraud, this
interpretation is contrary to the plain language of 15 U.S.C. § 1666(a) on which she
relies, as well as 12 C.F.R. § 226.13(b)(1) and the Cardmember Agreement, all of
which require she notify Discover within 60 days of transmission of the statement
containing the error. Herein, Bennett clearly did not comply with this requirement
where she admits she only became aware of the error after May 2019, more than
five years after issuance of the statement containing the most recent disputed
charge. As her claim of entitlement to an account credit is meritless, the court
properly concluded that there was no issue of material fact and granted summary
judgment to Discover.
CONCLUSION
Therefore, and for the foregoing reasons, the order and judgment of
the Harlan Circuit Court is AFFIRMED.
ALL CONCUR.
-7- BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Ruby R. Bennett, pro se Nicholas K. Rohner Harlan, Kentucky Cincinnati, Ohio
-8-