Opinion
DOCKET NO. A-2358-14T3
01-25-2016
CAPITAL ONE BANK (USA), N.A., Plaintiff-Appellant, v. EMILIA G. VARGAS, Defendant-Respondent.
Lyons, Doughty & Veldhuis, P.C., attorneys for appellant (Maureen Horgan and Lauren Keating, on the brief). Respondent has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges St. John and Guadagno. On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. DC-014166-14. Lyons, Doughty & Veldhuis, P.C., attorneys for appellant (Maureen Horgan and Lauren Keating, on the brief). Respondent has not filed a brief. PER CURIAM
In this debt collection action, plaintiff Capital One Bank (USA), N.A. (Capital One) appeals from a December 3, 2014 denial of its motion for summary judgment against defendant, Emilia Vargas. Since the complaint was thereafter dismissed by the court without prejudice, the decision under appeal was not final. We hereby grant leave to appeal nunc pro tunc. R. 2:4-4(b)(2). Finding no contested issues of material fact with regard to the summary judgment motion, we reverse.
I.
Capital One issued a MasterCard credit account to Vargas on March 6, 1999. Defendant used the MasterCard for purchases and made automatic monthly payments of $45 from May to October 2013. Defendant's last purchase on the card was in September 2013. From November 2013 to May 2014, no payments were received by Capital One, and late fees and interest charges accumulated. The annual interest rate was 17.90% on the outstanding balance. A late fee of $25 was charged in November 2013, and a late fee of $35 was charged for both December 2013 and January 2014. No late fee was charged in February, March, April, or May 2014. The annual member fee of $29 was charged in March 2014. In May 2014, Capital One closed the account for non-payment and initiated this collection action.
A complaint was filed by Capital One against Vargas in the Special Civil Part demanding judgment in the amount of $1,713.81 stemming from the MasterCard purchases. Vargas filed an answer, through counsel, asserting insufficient knowledge to affirm or deny the allegations of the complaint, stating the amount sought "includes interest and various fees all of which the [d]efendant is unaware as to the accuracy thereof."
Capital One filed an unopposed motion for summary judgment and accompanying affidavit of Angela Tucker, an employee and authorized agent of Capital One, familiar with defendant's account. With the affidavit, Capital One included Vargas' billing statements from May 2013 to May 2014. Tucker stated that these types of files are kept in the regular course of business and that defendant defaulted under the agreement between the parties, owing a total of $1,713.81, as reflected in the last monthly billing statement.
The trial judge denied the motion for summary judgment, stating there was a contested issue of material fact as to the debt amount. First, the judge acknowledged that Vargas did not file an affidavit or certification as required by Rule 4:46-2(b), but mischaracterized defendant as pro se. He explained he is "required to search with great liberality to determine whether a cause of action is suggested by pro se pleadings" as in Printing Mart-Morristown v. Sharp Electronics Corporation, 116 N.J. 739 (1989), and Velantzas v. Colgate-Palmolive Company, 109 N.J. 189 (1988). Although defendant would not be entitled to special consideration as a pro se, the judge stated he was mindful of the "somewhat rather confusing rules concerning motion practice in Special Civil [P]art" and "felt that the answer filed by — somewhat — in some detail by the pro se indicated that she was contesting the amount set forth in the complaint."
Next, the judge addressed the affidavit Capital One filed with its motion. He questioned the accuracy of the attached billing statements, finding there to be no indication the statements were properly authenticated or complete. The judge found it "clear . . . that the plaintiff was trying to short-cut the process by just submitting . . . an incomplete affidavit and rather than be exposed to the rigors of trial. . . ."
Thereafter, the case was dismissed without prejudice when neither party produced its client on the date of trial. This appeal followed.
II.
Capital One contends that the unopposed motion for summary judgment satisfied the requirements of Rule 4:46, and should have been granted. It asserts the trial judge should not have denied the motion on the basis of defendant's answer, as defendant did not properly respond to the motion, plaintiff's affidavit was sufficient proof of the debt amount as required by Rule 6:6-3 and LVNV Funding, LLC v. Colvell, 421 N.J. Super. 1 (App. Div. 2011), and the judge improperly believed defendant was not represented by counsel in the matter.
Our review of a trial court's summary judgment order is de novo, applying the same legal standard as the trial court. Bhagat v. Bhagat, 217 N.J. 22, 38 (2014) (citing W.J.A. v. D.A., 210 N.J. 229, 237-38 (2012), Henry v. N.J. Dept. of Human Servs., 204 N.J. 320, 330 (2010)). Viewing the evidence "in a light most favorable to the non-moving party," we determine "if there is a genuine issue as to any material fact or whether the moving party is entitled to judgment as a matter of law." Rowe v. Mazel Thirty, LLC, 209 N.J. 35, 38, 41 (2012) (citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 529 (1995)). We must determine "whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party in consideration of the applicable evidentiary standard, are sufficient to permit a rational fact-finder to resolve the alleged disputed issue in favor of the non-moving party." Brill, supra, 142 N.J. at 540. We review questions of law de novo, State v. Gandhi, 201 N.J. 161, 176 (2010), and need not accept the trial court's conclusions of law. Davis v. Devereux Found., 209 N.J. 269, 286 (2012).
Rule 4:46-2 governs the procedures for supporting and opposing a motion for summary judgment. Section (b) provides:
A party opposing the motion shall file a responding statement either admitting or disputing each of the facts in the movant's statement. Subject to R. 4:46-5(a), all material facts in the movant's statement which are sufficiently supported will be deemed admitted for the purposes of the motion only, unless specifically disputed by citation conforming to the requirements of paragraph (a) demonstrating the existence of a genuine issue as to the fact.On its face, the rule unambiguously requires parties opposing summary judgment to include a response to the movant's statement of material facts admitting or disputing each of movant's assertions with precise record references as support. Pressler & Verniero, Current N.J. Court Rules, comment 1.2 on R. 4:46-2 (2016).
[Id.]
In fact, the Supreme Court emphasized it "expect[s] parties to comply with the dictates of R. 4:46-2(b) rather than hope for mercy when they do not, and [] encourage[s] the use of sanctions to enforce compliance where appropriate in place of a reflexive grant of dismissal." Leang v. Jersey City Bd. of Educ., 198 N.J. 557, 568 n.2 (2009) (citing Lyons v. Twp. of Wayne, 185 N.J. 426, 435-36 (2005)).
Despite this seemingly strict reading, application of Rule 4:46-2 has been more nuanced. Leang is instructive. In that case, we reversed the trial court's grant of summary judgment in favor of the defendants, specifically finding fault with the motion judge's treatment of the movant's statement of undisputed facts as admitted because the non-movants "did not respond to each statement of fact in the manner required by R. 4:46-2[(b)]." Leang v. Jersey City Bd. of Educ., 399 N.J. Super. 329, 352, 356 (App. Div. 2008), aff'd in part and rev'd in part on other grounds, 198 N.J. 557 (2009). We held the trial court "failed to follow the Brill mandate" because it "merely accept[ed] as true all the allegations of a party's statement with no consideration of the competent evidential materials." Id. at 357-58 (citing Brill, supra, 142 N.J. at 540). On appeal, the Court, while reemphasizing the paramount importance of compliance with Rule 4:46-2's procedural dictates, affirmed the reversal of summary judgment on the Rule's procedural grounds. Leang, supra, 198 N.J. at 568 n.2. This oversight, the Court concluded, caused the motion judge to fail to recognize "that the moving papers themselves demonstrated significant factual disputes" that "alone should have resulted in a denial of some of the requested relief." Ibid.
Here, there is no argument that Vargas' lack of response failed to comply with Rule 4:46-2's procedural dictates. It is equally clear, however, the trial court was cognizant of the fact that defendant's answer called into question the amount owed. In contemplating the dispute as to the amount owed, the trial court did not erroneously seize upon the strict language of Rule 4:46-2(b) without adhering to the "Brill mandate" that a court ruling on a motion for summary judgment consider "the competent evidential materials" in the light most favorable to the non-movant, even where that non-movant has deviated from the rule's procedural dictates. See Leang, supra, 399 N.J. Super. at 357-58 (citing Brill, supra, 142 N.J. at 540). However, "the law is well settled that '[b]are conclusions in the pleadings without factual support in tendered affidavits, will not defeat a meritorious application for summary judgment.'" Brae Asset Fund, L.P. v. Newman, 327 N.J Super. 129, 134 (App. Div. 1999) (quoting United States Pipe & Foundry Co. v. American Arbitration Ass'n, 67 N.J. Super. 384, 399-400 (App. Div. 1961)).
Here, defendant's answer, simply asserting she was unaware of the accuracy of the amount owed, is a bare conclusion with no factual support. A self-serving assertion, unsupported by documentary proof, "is insufficient to create a genuine issue of material fact." Heyert v. Taddese, 431 N.J. Super. 388, 414 (App. Div. 2013). Defendant submitted no competent evidential materials to support her statement. In light of the record produced by Capital One, defendant's bald assertion of potential inaccuracy is insufficient to defeat summary judgment. Therefore, there cannot be a genuine factual dispute as to this issue.
Capital One argues that because Vargas did not file a responding statement disputing the factual assertions in Tucker's statement, those assertions must be "deemed admitted." The only factual assertions in a statement of material facts that are deemed admitted, if not disputed in the statement submitted by the party opposing summary judgment, are those which are "sufficiently supported." R. 4:46-2(b).
Rule 1:6-6 allows the court to "hear [a motion for summary judgment] on affidavits made on personal knowledge, setting forth only facts which are admissible in evidence to which the affiant is competent to testify and which may have annexed thereto certified copies of all papers or parts thereof referred to therein." Hearsay may only be considered if admissible pursuant to an exception to the hearsay rule. Jeter v. Stevenson, 284 N.J. Super. 229, 233-34 (App. Div. 1995). Therefore, if an affidavit supporting a factual assertion in a statement of material facts does not comply with Rule 1:6-6, the assertion is not "sufficiently supported" and thus will not be "deemed admitted" even though it is not contested by a responding statement.
In evaluating a summary judgment record involving a challenge to the competency of affidavits on which the trial court relied, we review the evidentiary question for abuse of discretion and the court's legal determination de novo. Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 383-84 (2010). Here, Tucker's certification complied with Rule 1:6-6. The credit card statements did not constitute inadmissible hearsay; they were properly considered as business records under N.J.R.E. 803(c)(6). "The purpose of the business records exception is to broaden admissibility of relevant evidence based on principles of necessity and trustworthiness." New Century Fin. Servs., Inc. v. Oughla, 437 N.J. Super. 299, 325 (App. Div. 2014) (citation omitted). Further, there is no requirement that the foundation witness possess any personal knowledge of the act or event recorded. State v. Martorelli, 136 N.J. Super. 449, 453 (App. Div. 1975), certif. denied, 69 N.J. 445 (1976). Vargas provided no evidence to suggest Capital One's proofs, including the subject certification and affidavit, were unreliable.
Moreover, as held in Colvell, supra, 421 N.J. Super. 1, the requirements of Rule 6:6-3 were met, entitling Capital One to summary judgment. "To collect on a revolving credit card debt, [plaintiff] is required to provide the transactions for which payment has not been made, any payments that have been made, the annual percentage and finance charge percentage rates and the billing cycle information." Id. at 7-8 (citing R. 6:6-3(a)). Here, Capital One's motion included a year's worth of billing statements showing the transactions and applicable rates. The final bill indicated the balance of $1,713.81 owed. Further, there is no evidence Vargas ever contested any charge or fee on her credit card. Thus, the amount owed asserted by Capital One is sufficiently supported and should have been deemed admitted.
Capital One also contends the court was in error in relying on the fact that defendant was unrepresented. Given that summary judgment should not have been denied based on the answer filed by Vargas, we need not address this issue. We conclude the trial court erred in finding plaintiff's assertion as to the debt amount owed to be disputed by Vargas and reverse the denial of summary judgment as there was no genuine issue as to any material fact.
Reversed and remanded to the trial court for entry of a judgment in favor of Capital One. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
N.J.R.E. 803(c)(6) permits business records as a statement contained in a writing or other record . . . made at or near the time of observation by a person or from information supplied by such a person, if the writing or other record was made in the regular course of business and it was the regular practice of the business to make it, unless the sources of information or the method, purpose or circumstances of preparation indicate that it is not trustworthy.