Bank of America v. Keith, K.

J-S09032-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
BANK OF AMERICA, N.A. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KEVIN P. KEITH :
:
Appellant : No. 2218 EDA 2021
Appeal from the Judgment Entered October 21, 2021
In the Court of Common Pleas of Delaware County Civil Division at
No(s): CV-2019-006151
BEFORE: LAZARUS, J., KUNSELMAN, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED APRIL 12, 2022
Kevin P. Keith (Appellant) appeals the judgment entered by the Court
of Common Pleas of Delaware County in favor of Bank of America, N.A. (BOA).
After careful review, we affirm.
On July 24, 2019, BOA filed this action seeking to recover the unpaid
balance on a credit card which had been issued to Appellant. BOA asserted
that Appellant had requested the card online, accepted the card after it had
been mailed to his home, and thereafter used the account to purchase goods
and obtain cash advances in accordance with the customer agreement. BOA
indicated that as of May 31, 2017, Appellant’s account had an unpaid balance
of $13,730.62.
____________________________________________
* Former Justice specially assigned to the Superior Court.
J-S09032-22
On September 1, 2019, the trial court entered a default judgment
against Appellant for failing to file an answer. However, upon Appellant’s filing
of a Petition to Open/Strike the Judgment, the trial court opened the judgment
on March 4, 2020 and directed Appellant to file an answer to BOA’s complaint.
In his answer, Appellant claimed he had no recollection of requesting a
credit card electronically as described in BOA’s complaint. In new matter,
Appellant argued that “the predicate to the issuance of a credit card is a
request or application by the alleged holder.” Answer, at 1 (citing 15 U.S.C.
§ 1642 (“[n]o credit card shall be issued except in response to a request or
application therefor”)). As such, Appellant asserted that BOA was not entitled
to relief as it could not show he made an application or a request for the credit
card. Appellant did not assert that a request for the credit card was
fraudulently submitted.
On August 5, 2020, the parties proceeded to an arbitration hearing after
which an award was entered in favor of BOA. Appellant appealed the
arbitrators’ award to the Court of Common Pleas.
On April 1, 2021, a virtual bench trial was held at which BOA presented
the testimony of Pamela Ritter, assistant vice-president of the BOA collections
services department. Ms. Ritter, who worked at BOA for 28 years, testified
she was familiar with BOA’s process for maintaining its electronic records with
respect to credit card applications, terms and conditions of the agreements,
and subsequent statements. Notes of Testimony (N.T.), 4/1/21, at 15-17.
-2-
J-S09032-22
Ms. Ritter indicated that, in the ordinary course of business, upon BOA’s
receipt of an electronic request for a credit card, the request is submitted for
review, and if approved, BOA sends the applicant a physical credit card along
with the corresponding terms and conditions of the account. N.T. at 21, 40-
41. Ms. Ritter also explained that credit card statements are all generated
electronically, digital copies of the statements are linked to the customer’s
account, and paper copies of the statements are mailed to the account holder’s
address. N.T. at 48-52.
BOA presented as an exhibit a copy of an electronic request for a credit
card it received on January 20, 2015, which contained personal information
identifying Appellant as the applicant: Appellant’s name, address, social
security number, date of birth, current income, current employer, and current
employment position. N.T. at 18-20; Plaintiff’s Exhibit 3 (“Applicant Details
Record”). When BOA’s counsel called Appellant to testify in its case-in-chief
“as on cross,” Appellant testified that the information set forth on the
“Applicant Details Record” was accurate. N.T. at 79-80.
After BOA issued the credit card at issue and assigned it to an account
ending in 0940 (“0940 credit card”), the physical credit card, the agreement
containing the terms and conditions of the use of the 0940 credit card, and all
subsequent account documents were mailed to Appellant at the address listed
on the “Applicant Details Record” as 413 N. Orange Street, Suite A, Media, PA
19063 (“Orange Street address”). N.T. at 21, 40-41, 44-49. None of these
documents were returned to BOA by the U.S. Postal Service or by any other
-3-
J-S09032-22
means. N.T. at 47-49. Appellant testified that he lived at the Orange Street
address during all the times relevant to this case. N.T. at 79.
Appellant admitted that he had made at least one payment to BOA to
satisfy charges on the 0940 credit card. N.T. at 72, 76, 81. BOA entered as
an exhibit a check dated November 12, 2015 made payable from Kevin P.
Keith to BOA in the amount of $200.00 with the notation “For 0940.” Plaintiff’s
Exhibit 4. Appellant admitted that this was his check and never disputed any
of the charges listed on the numerous statements sent to his Orange Street
address. N.T. at 81. The last payment made on the 0940 account was October
28, 2016. N.T. at 49. When BOA sent the last statement to Appellant, the
balance on the account as of May 31, 2017 was $13,730.62. N.T. at 49.
Counsel specifically conceded at trial that Appellant was not arguing that the
credit card request was fraudulently made. N.T. at 28.
After the trial had concluded, on July 6, 2021, the trial court issued an
order setting forth its factual findings and conclusions of law in determining
that BOA was entitled to a judgment against Appellant in the amount of
$13,730.67.
On July 13, 2021, Appellant filed a motion for post-trial relief and on
July 14, 2021, BOA filed an answer to Appellant’s motion for post-trial relief.
The trial court subsequently directed the parties to file memoranda in support
of their positions. On October 21, 2021, the trial court entered an order
denying Appellant’s motion for post-trial relief and entered judgment in favor
of BOA. This timely appeal followed.
-4-
J-S09032-22
Appellant raises the following issues for our review on appeal:
1) Did the lower court err by finding as a conclusion of law that
the document titled “Applicant Details Record” constituted
[Appellant’s] application/request for a credit card under 15
U.S.C. [§] 1642?
2) Did the lower court err by using irrelevant/immaterial evidence,
admitted without foundation and in violation of Pa.R.E.
901(B)(11) to infer the existence of an “application or request”
required under federal law, 15 U.S.C. [§] 1642?
Appellant’s Brief, at 4.
Both of Appellant’s claims on appeal are based on his citation to the
federal Truth-in-Lending Act which states that “[n]o credit card shall be issued
except in response to a request or application therefor.” 15 U.S.C. § 1642.
Appellant argues that “no credit card contract exists … [as t]here is no
evidence that [Appellant] was the person who requested or applied for the
issuance of a credit card.” Appellant’s Brief, at 11. We disagree.
It is well-established that “[t]he Truth-in-Lending Act was passed
primarily to aid the unsophisticated consumer so that he would not be easily
misled as to the total costs of financing.” Thomka v. A.Z. Chevrolet, Inc.,
619 F.2d 246, 248 (3d Cir. 1980) (citing 15 U.S.C. § 1601). The Act seeks to
“assure a meaningful disclosure of credit terms so that the consumer will be
able to compare more readily the various terms available to him and avoid the
uninformed use of credit.” 15 U.S.C. § 1601. However, while “[t]he design
of TILA was to provide protection to consumers by affording them meaningful
disclosure and thereby an opportunity to shop for credit[,] [it] was not
-5-
J-S09032-22
designed, nor should it be used to thwart, the valid claims of creditors.”
Basham v. Fin. Am. Corp., 583 F.2d 918, 928 (7th Cir. 1978).
Appellant’s claim that there was no evidence that he submitted an
electronic request for a credit card from BOA is belied by the record. As noted
above, BOA presented evidence that it received an electronic request for a
credit card which contained numerous pieces of personal, confidential
information which identified Appellant as the applicant. Appellant admitted
that all of the information on the electronic request (including his name,
address, date of birth, social security number, employment and salary
information) was accurate.
Appellant did not raise a defense that the request was fraudulently made
in his name and in fact, his counsel expressly indicated that Appellant was not
claiming this defense. Appellant did not offer any alternative explanation as
to how the card was issued in his name.
Further, Appellant readily admits that he accepted the card that was
sent to his home and at no point challenged any of the charges on the account
on the numerous credit card statements sent to his home. Appellant admitted
to making at least one payment to BOA to satisfy the credit card charges via
a check which included his name, address, and a note that the payment was
for the 0940 account. After no payments were made on the account after
October 28, 2016, the balance due on the credit card as of the last statement
sent to Appellant on May 13, 2017, was $13,730.62.
-6-
J-S09032-22
Accordingly, in reviewing the record, we find no error in the trial court’s
finding that the documentary and testimonial evidence presented at trial
supported the conclusion that Appellant had made an electronic request to
BOA seeking a credit card.
In Appellant’s second claim on appeal, he argues that the trial court
erred in using “irrelevant/immaterial evidence admitted without foundation,
to infer the existence of an ‘application or request’” for a credit card.
Appellant’s Brief, at 12. Appellant suggests that BOA’s “Applicant Details
Record,” which the trial court deemed to be evidence of Appellant’s electronic
request for a credit card, was an inadmissible piece of digital evidence under
Pa.R.E. 901 as he alleged that BOA could not prove the identity of the person
making the electronic request for a credit card.
Rule 901 provides that “[u]nless stipulated, to satisfy the requirement
of authenticating or identifying an item of evidence, the proponent must
produce evidence sufficient to support a finding that the item is what the
proponent claims it is.” Pa.R.E. 901(a).
With respect to digital evidence, Rule 901 states that parties may
connect a particular individual or entity to the digital evidence through
circumstantial evidence such as “identifying content.” Pa.R.E. 901(b)(11)(B).
The note to Rule 901 provides that “[t]he proponent of digital evidence is not
required to prove that no one else could be the author. Rather, the proponent
must produce sufficient evidence to support a finding that a particular person
or entity was the author.” Pa.R.E. 901, note.
-7-
J-S09032-22
As set forth above, the information provided on BOA’s “Applicant Details
Record” included personal and confidential identifiers that Appellant conceded
were accurate, including, but not limited to, Appellant’s social security number
and his salary at that time, which was information that constituted knowledge
only possessed by Appellant. The identifying content on the “Applicant Details
Record” connected Appellant to the electronic request for a credit card to show
he was in fact the individual who submitted the digital content. Appellant
made no allegation that the credit card request had been fraudulently made.
Therefore, we also reject Appellant’s claim that the trial court abused its
discretion in admitting this digital evidence.
Moreover, while not specifically challenged by Appellant, the trial court
correctly noted that BOA was entitled to relief as “Appellant’s acceptance of
and use of, and payment related to, the 0940 credit card, constitutes
acceptance of the terms related to the 0940 credit card, creating a legally
enforceable contract.” Trial Court Opinion, 7/9/21, at 6 (citing Shovel
Transfer & Storage, Inc. v. Pennsylvania Liquor Control Bd., 739 A.2d
133, 136 (Pa. 1999) (finding that an enforceable contract was formed
although the contract had not been signed as “the parties, with the capacity
to contract, clearly manifested assent to the terms of the contract through
their conduct”)).
For the foregoing reasons, we affirm the judgment entered below.
Judgment affirmed.
-8-
J-S09032-22
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/12/2022
-9-