Citibank, S. Dakota, N.A. v. Gable ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-780
NORTH CAROLINA COURT OF APPEALS
Filed: 7 January 2014
CITIBANK, SOUTH DAKOTA, N.A.,
Plaintiff
v. Wayne County
No. 09 CVD 1731
RALPH H. GABLE,
Defendant
Appeal by defendant from order entered 21 March 2013 by
Judge R. Les Turner in Wayne County District Court. Heard in
the Court of Appeals 20 November 2013.
Bernhardt & Strawser, P.A., by Harrison A. Lord, Tonya L.
Urps, and Charles C. Euripides, for plaintiff-appellee.
Robert E. Fuller, Jr., for defendant-appellant.
CALABRIA, Judge.
Ralph H. Gable (“defendant”) appeals from an order granting
summary judgment in favor of Citibank, South Dakota, N.A.
(“Citibank”). We affirm.
Defendant applied for and received an AT&T branded credit
card through Universal Bank, N.A. (“Universal Bank”). On 2
January 2002, Universal Bank merged with Citibank, and Citibank
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became the owner of all right, title, and interest in Universal
Bank’s accounts, including defendant’s credit card account.
Citicorp Credit Service, Inc. (USA) (“CCSI”) and Citibank are
both wholly owned subsidiaries of Citigroup, Inc., and CCSI is
the custodian of records for all Citibank credit card accounts.
Citibank mailed defendant periodic statements of his account,
and defendant remained current on his account until 15 October
2008, the date of defendant’s last credit card payment.
On 7 May 2009, Citibank’s attorney sent defendant a letter
regarding the debt and demanding payment. Defendant responded
in a letter dated 5 June 2009, disputing “the validity of the
numbers of the alleged debt,” alleging corporate mismanagement,
and demanding “a copy of any and all agreements and contracts
which [defendant] has executed with Citigroup/Citibank.”
Citibank filed a complaint against defendant on 24 June
2009 in Wayne County District Court, alleging that defendant was
liable for charges to his credit card in the amount of
$23,049.80 and attorney fees. Defendant filed an answer on 26
August 2009, requesting that the trial court award Citibank
“whatever amount it can prove itself to be entitled to recover.”
Citibank moved for summary judgment on 24 November 2009 on the
grounds that there were no genuine issues of material fact and
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supported its motion for summary judgment with an affidavit from
Jennifer Shepherd (“Shepherd”), a CCSI employee. Shepherd had
been appointed as the custodian of defendant’s account records
for the purpose of making the affidavit. After a hearing, the
trial court granted summary judgment in favor of Citibank, and
ordered defendant to pay $23,049.80 plus interest and attorney
fees. Defendant appeals.
“Our standard of review of an appeal from summary judgment
is de novo; such judgment is appropriate only when the record
shows that ‘there is no genuine issue as to any material fact
and that any party is entitled to a judgment as a matter of
law.’” In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572,
576 (2008) (quoting Forbis v. Neal, 361 N.C. 519, 524, 649
S.E.2d 382, 385 (2007)).
Defendant argues that the trial court erred in granting
summary judgment in favor of Citibank because there were genuine
issues of material fact as to the identity of the creditor.
Defendant further contends there was a lack of documentation of
the account and the basis for the account. We disagree.
In a motion for summary judgment, the moving party must
first meet its burden of demonstrating that no genuine issues of
material fact exist. Lexington State Bank v. Miller, 137 N.C.
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App. 748, 751, 529 S.E.2d 454, 455-56 (2000) (citation omitted).
Once the moving party has met its burden, the nonmoving party
may not rely upon the pleadings but must “set forth specific
facts showing a genuine issue of fact for the jury; otherwise,
summary judgment, if appropriate, shall be entered against the
nonmoving party.” Harris v. Stewart, 193 N.C. App. 142, 146,
666 S.E.2d 804, 806 (2008) (citations omitted).
In the instant case, Citibank supported their motion for
summary judgment with Shepherd’s sworn affidavit, which included
evidence of the debt. In addition, according to the affidavit,
defendant was the cardholder associated with the account and
Citibank became the owner of all right, title, and interest in
defendant’s account after Universal Bank merged with Citibank.
Citibank occasionally modified the credit card agreement as
provided by the original agreement. Defendant was notified and
given an opportunity to reject any modifications prior to the
effective date by cancelling the account. Defendant’s last
payment on the account was posted on 15 October 2008, and he was
in default on the account as of the date of Citibank’s motion.
Citibank attached two exhibits to Shepherd’s affidavit: a
copy of the most current credit card agreement and a series of
credit card statements attributed to defendant’s account between
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17 November 2005 and 19 August 2009. The credit card agreement
attached to Shepherd’s affidavit specifically indicates that
Citibank issued the account, and the agreement was signed by a
Citibank officer. The agreement also bears a copyright
attributed to Citibank. Each credit card statement from the 19
February 2007 statement forward notes that AT&T and the AT&T
logo are trademarks licensed to Citigroup, Inc., and the
statements from 19 February 2007 through 19 December 2008 all
bear the “Citi” logo.
By contrast, defendant opposed Citibank’s motion with his
own affidavit consisting of general allegations largely echoing
his answer to Citibank’s complaint. In his affidavit, defendant
admitted to having an AT&T Universal Rewards Card, but claimed
that Citibank had not produced any evidence to show his legal
responsibility for the debt and that neither Citibank nor its
attorneys had acted in good faith. Nevertheless, Citibank’s
affidavit and supporting materials provide substantial evidence
regarding the validity of the debt and establishing defendant as
debtor and Citibank as creditor, while defendant’s affidavit
fails to set forth specific facts showing a genuine issue of
material fact for a jury. Harris, 193 N.C. App. at 146, 666
S.E.2d at 806.
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Defendant also argues on appeal that Citibank is in
violation of the Fair Debt Collection Practices Act pursuant to
15 U.S.C. 1692g, and is therefore prohibited from bringing any
action until it complies with the demand of his 5 June 2009
letter to forward “all agreements and contracts” he had executed
with Citibank. We disagree.
The Fair Debt Collection Practices Act (“the Act”) applies
largely to debt collectors, defined as a person who “regularly
collects or attempts to collect, directly or indirectly, debts
owed or due or asserted to be owed or due another.” 15 U.S.C.
1692a(6). A creditor under the Act is “any person who offers or
extends credit creating a debt or to whom a debt is owed[.]” 15
U.S.C. 1692a(4). The language of the relevant portion of the
Act applies specifically to debt collectors:
If the consumer notifies the debt collector
in writing within the thirty-day period . .
. the debt collector shall cease collection
of the debt . . . until the debt collector
obtains verification of the debt . . . or
the name and address of the original
creditor, and a copy . . . is mailed to the
consumer by the debt collector.
15 U.S.C. 1692g(b) (emphasis added). While the record indicates
that defendant did make a request for “any and all agreements
and contracts” he had executed with Citibank, it also indicates
that Citibank had taken ownership of all right, title, and
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interest in defendant’s account. In demanding payment on the
account, Citibank was not attempting to collect a debt owed to
another entity, but instead was attempting to collect a debt
defendant owed to Citibank. Under the circumstances, Citibank
qualified as a creditor under the Act as the entity that
extended credit to defendant under the credit card agreement.
15 U.S.C. 1692a(4). As such, the Act is inapplicable here, and
this argument has no merit.
Citibank presented an abundance of evidence through their
affidavit and exhibits that defendant was the credit card holder
for the account at issue. In addition, Citibank presented
evidence indicating that it was the creditor for the debt.
Citibank fulfilled its burden of establishing that no genuine
issue of material fact existed by presenting substantial
documentation of defendant’s liability for the account.
Defendant failed to present specific facts sufficient to
overcome the motion for summary judgment and erroneously
contends that Citibank is in violation of the Fair Debt
Collection Practices Act. 15 U.S.C. 1692g(b). We hold that the
trial court properly granted summary judgment in favor of
Citibank, and we affirm.
Affirmed.
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Judges HUNTER, Robert C. and HUNTER, JR., Robert N. concur.
Report per Rule 30(e).