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LVNV Funding, LLC v. Hankh

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


December 26, 2007

LVNV FUNDING, LLC, PLAINTIFF-RESPONDENT,
v.
ROBERT HANKH, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, L-8583-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: December 12, 2007

Before Judges Axelrad and Payne.

Defendant Robert Hankh appeals from a May 11, 2007 order for summary judgment entered against him in the amount of $18,522.60 in a collection action seeking recovery of a purported delinquent MasterCard account issued by Providian Financial Corporation (Providian) in 1996. The suit was filed on October 27, 2006 by LVNV Funding, LLC, an assignee of Providian that purchased the account in March 2006. It appears the last activity on the account was a payment made on September 25, 2000.

Following unsuccessful mediation in which defendant was pro se, plaintiff moved for summary judgment on April 9, 2007. Plaintiff provided neither a signed credit application nor a record of transactions giving rise to the balance. Its sole proof of the indebtedness was a certification from its representative that when it purchased the account, defendant owed $16,565.72. On April 30, 2007, defendant's recently retained counsel opposed the motion and cross-moved to amend defendant's answer to claim the bar of the six-year statute of limitations, N.J.S.A. 2A:14-1, and to dismiss the complaint on that basis. Alternatively, defendant sought discovery relief.

Plaintiff's counsel responded by letter of May 3, 2007, stating that during the mediation conference, defendant claimed he did not recall having the account but the charges could have been incurred by his ex-wife. Plaintiff further argued, without any citation to authority, that the statute of limitations did not commence until the default date, which was when the account was charged-off, not the date of last payment. Plaintiff thus contended its suit was timely and requested the cross-motion be denied. Critical to this appeal, however, plaintiff also requested that discovery be completed prior to the court deciding its summary judgment motion because it had ordered documentation of the charges on the account and wanted the opportunity to supply more specific answers to several interrogatories. Plaintiff also requested the matter be listed for oral argument.

On May 11, 2007, the court entered an order for summary judgment in plaintiff's favor, without oral argument, without opinion, and without addressing the cross-motion. We prefer to believe the court entered this order inadvertently. However, the error was compounded, and we are troubled by the fact that the court did not answer defendant's subsequent request for a statement of reasons. This summary judgment order must be reversed for a variety of reasons. The court failed to issue any findings of fact or conclusions of law to support its decision as required by Rule 1:7-4. The court improperly ruled on a summary judgment motion that the movant itself recognized was premature and sought to adjourn pending further discovery. The court also erred in entering summary judgment on plaintiff's collection claim in view of the paucity of proofs submitted by plaintiff of defendant's indebtedness, and its failure to consider defendant's cross-motion and the potential for a valid defense to the suit.

Reversed and remanded.

20071226

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