Phillip L. Thomason v. Fia Card Services, N.A. , 330 Ga. App. 603 ( 2015 )

FOURTH DIVISION
DOYLE, P. J.,
MILLER and DILLARD, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules/
February 4, 2015
In the Court of Appeals of Georgia
A14A2015. THOMASON v. FIA CARD SERVICES, N.A.
DILLARD, Judge.
Phillip L. Thomason, pro se, appeals the trial court’s grant of summary
judgment to FIA Card Services, N.A. (“FIA”) on its complaint on a credit-card
account, contending that FIA failed to establish that it was the real party in interest
with standing to sue and that the trial court erred in summarily disposing of his
counterclaims. For the reasons noted infra, we reverse.
Viewed in the light most favorable to the nonmovant (Thomason),1 the record
reflects that on September 8, 2010, FIA filed suit against Thomason to recover what
it alleged was an outstanding balance upon a credit card with a 14-digit account
1
See Angel Bus. Catalysts, LLC v. Bank of the Ozarks, 316 Ga. App. 253, 254
(728 SE2d 854) (2012); Kensington Partners, LLC v. Beal Bank Nevada, 311 Ga.
App. 196, 196 (715 SE2d 491) (2011).
number ending in 3030. Specifically, FIA asserted that Thomason owed an
outstanding balance of $76,114.19, plus court costs of $255.00 And in support of its
claim, FIA attached to the complaint a copy of a certificate issued and signed by its
assistant secretary on July 20, 2009, which certified that on October 20, 2006, Bank
of America, N.A. “merged into and under the charter and title of FIA Services . . . .”
On October 5, 2010, Thomason filed his answer to the complaint, denying that
he had a credit card with FIA under the account number ending in 3030 or that he was
otherwise indebted to FIA as claimed.2 Thomason also asserted that FIA had failed
to show that it was the real party in interest to sue upon the account. FIA filed a
motion for summary judgment on July 27, 2011.
In support of its motion for summary judgment, FIA attached the affidavit of
a custodian of records and an authorized officer, who averred to having personal
knowledge of the “manner and method by which [FIA] maintains its normal business
books and records.” He further averred that FIA’s records show that Thomason
“opened an account with FIA Card Services, N.A., or a predecessor in interest, for the
purpose of obtaining an extension of credit and did thereafter use and authorize the
use of the account for the acquisition of goods, services, or cash advances in
2
Thomason amended his answer in November 2010.
2
accordance with the customer agreement.” The customer agreement, also attached as
an exhibit, was dated 2006 and provides that its terms apply to the user of the account
and that, as a result of a merger, the customer’s Bank of America account would
thereafter be issued and administered by FIA.
Additionally, the FIA officer averred that the company’s records show that
Thomason was in breach of his agreement by failing to make periodic payments and,
accordingly, he was indebted to FIA in the sum of $76,114.19 on a 14-digit account
number that ended in 1238. Bank of America account billing statements were
attached as exhibits referenced in support of same. Those statements, dating back to
May 2007, referenced a credit line under a 14-digit account number that ended in
3030, which in December 2009 had an outstanding balance of $76,114.19 with a
minimum payment of $10,151.00 due, after a November 2009 statement warned that
the account was “scheduled to be written off as bad debt in your next billing cycle.”3
Thomason filed a response to the motion for summary judgment, once again
denying that he was indebted to FIA and challenging its standing to collect upon the
alleged debt. Then, in October 2012, Thomason sought leave to amend his answer to
3
The latest attached statement, dated January 2010, showed an outstanding
balance of $0.00 with a $76,114.19 charge-off adjustment.
3
include counterclaims against FIA for breach of fiduciary duty, “failure to exhibit fair
dealing and acts of bad faith,” fraud, violation of the Fair Debt Collection Practices
Act, intentional infliction of emotional distress, and “infliction of willful harm.”
On December 27, 2012, the trial court granted FIA’s motion for summary
judgment, noting that FIA’s “detailed affidavit setting forth the evidentiary basis of
[its] claim against [Thomason] . . . made out a prima facie case.” The trial court also
ruled that the counterclaims Thomason sought to add “were of a nature such that their
validity was dependent upon [FIA] not prevailing in [its] [c]omplaint,” and, as such,
determined that they should be “dismissed.” Ultimately, the trial court awarded FIA
the requested $76,114.19, plus costs. This appeal by Thomason follows.4
Thomason argues first and foremost that the trial court erred in granting
summary judgment to FIA when it failed to demonstrate that it was in privity of
contract with him. And while Thomason attacks FIA’s manner of attempting to prove
privity by attaching a copy of the customer agreement that it alleged applied to his
4
Thomason’s brief is comprised of six enumerations of error, but enumerations
1, 2, 3, and 5 make essentially the same argument (i.e., that FIA failed to show it was
in privity of contract with Thomason), and enumeration 6 encompasses all other
enumerations of error by asserting that the trial court abused its discretion by failing
to consider Thomason’s arguments as to privity and by summarily disposing of his
counterclaims.
4
account,5 we focus instead on a more obvious problem in the proof submitted by
FIA—the failure to properly authenticate any document attached in support of its
motion for summary judgment.
The FIA officer’s affidavit refers to outstanding debt owed on an account
ending in 1238, while the complaint and exhibits attached to the affidavit refer to an
account ending in 3030. This obvious inconsistency between the account number
referenced in the affidavit and that reflected on the attached exhibits results in a
failure to properly authenticate the documents that FIA claims establish both privity
of contract and the amount owed upon the account.6 Accordingly, the trial court erred
5
In Melman v. FIA Card Services, N.A., 312 Ga. App. 270 (718 SE2d 107)
(2011), we approved of the use of the identical credit-card agreement that was
attached to the affidavit in the case sub judice to establish a prima facie case of an
account balance allegedly owed to FIA, id. at 272-74 (2). But we also noted in that
case that the affiant “averred that the agreement was sent to [the appellant]” and,
additionally, that the attached credit-card statements from Bank of America also
indicated that the “account is issued and administered by FIA Card Services, N.A.”
Id. at 273 (2). As an aside, we note that neither is true here.
6
See Ezeoke v. FIA Card Srvs., N.A., 320 Ga. App. 73, 75-76 (739 SE2d 81)
(2013) (physical precedent only) (noting that documents attached to affidavit were
insufficient to establish damages in motion for judgment on the pleadings when
affidavit referenced an entirely different account number than the account noted on
the attached statements); cf. Rutledge v. Gemini Capital Group, LLC, 327 Ga. App.
454, 456 (757 SE2d 893) (2014) (“[Appellee] provided an affidavit from its CEO,
based on personal knowledge and properly authenticated business records attached
to the affidavit, showing that [appellant] established a credit card account issued by
5
in granting summary judgment to FIA and, likewise, in summarily disposing of
Thomason’s request to add counterclaims against FIA when the trial court did so on
the basis that the counterclaims were contingent upon FIA’s failure to prevail on its
complaint.7
Chase. The affidavit and supporting documents further show that Chase’s interest in
the account was ultimately transferred to [appellee] and that [appellant] failed to pay
the amounts listed on the statements issued to him and attached to the affidavit. This
was sufficient to make a prima facie case supporting [appellee’s] suit on the
account.”); Ware v. Multibank 2009-1 Res-ADC Venture, LLC, 327 Ga. App. 245,
248-49 (2) (758 SE2d 145) (2014) (holding that affiant sufficiently authenticated
records under Georgia’s new Evidence Code when she, after setting out her role and
personal access to and knowledge of the records created and maintained by the
appellee in the ordinary course of business and the appellee’s acquisition of the
documents through a transfer, referenced and authenticated the various documents
attached to her affidavit as exhibits).
7
See Taquechel v. Chattahoochee Bank, 260 Ga. 755, 756-57 (400 SE2d 8)
(1991) (reversing award of damages in grant of summary judgment when the affidavit
“recited that it was based in part on bank records, and it [was] clear from the context
that the portion of the affidavit which set out the amount owed by defendants was
based on bank records,” but such records were not attached to the affidavit); Jackson
v. Calvary Portfolio Srvs., LLC, 314 Ga. App. 175, 177 (723 SE2d 475) (2012)
(reversing grant of summary judgment when affidavit and attached exhibits failed to
sufficiently prove the amount allegedly due); cf. League v. Citibank (South Dakota),
N.A., 291 Ga. App. 866, 869 (2) (663 SE2d 266) (2008) (affirming grant of summary
judgment to bank and noting that “[o]nce the party moving for summary judgment has
made a prima facie showing that it is entitled to judgment as a matter of law, the
nonmovant must then come forward with rebuttal evidence to show the existence of
a genuine issue of material fact”).
6
For all of the foregoing reasons, we reverse the trial court’s grant of summary
judgment to FIA.
Judgment reversed. Doyle, P. J., and Miller, J., concur.
7