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Fia Card Services, N.A. v. Razvi

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


December 16, 2008

FIA CARD SERVICES, N.A., F/K/A MBNA AMERICA BANK, N.A., PLAINTIFF-RESPONDENT,
v.
SYED A. RAZVI, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Passaic County, Docket No. DC-006268-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 3, 2008

Before Judges Reisner and Alvarez.

This is an appeal filed pro se by defendant Syed A. Razvi from summary judgment entered in favor of plaintiff FIA Card Services, N.A., f/k/a MBNA America Bank, N.A., for the balance due on a credit card account. We affirm.

Plaintiff served a notice of arbitration on defendant on August 21, 2006, to which he objected in writing on October 10, 2006. Defendant complained, among other things, that the proposed forum was in Minneapolis. As per the cardholder agreement, which explains the terms under which a card is issued, however, when a cardholder participates in arbitration, it is conducted "within the federal judicial district that includes [the cardholder's] billing address at the time the claim is filed."*fn1 In other words, had defendant participated in the arbitration, the hearing would have been conducted in New Jersey. See Rutgers-State Univ. v. Fogel, ___ N.J. Super. ____, ____ (App. Div. 2008) (slip op. at 6-7).

Defendant's written objection stated that "[f]orum selection clauses in contracts of adhesion are unenforceable." His response also stated that even if he participated, the proceeding would be meaningless as the "arbitration form [sic] is a sham where no actual proceedings take place and those with the wherewithal to attend such proceedings are given the'old run around.'" His objection read further: "Fifteen days from the verifiable receipt of this notice, your silence shall verify that the so-called notice of arbitration is a fraud wherein you used the United States Mail in an attempt to create a legal disability where none existed." The arbitrator awarded $10,439.61 to plaintiff in an uncontested proceeding on January 9, 2007.

On April 17, 2007, plaintiff filed a complaint to confirm the arbitration award.*fn2 On August 3, 2007, the court granted plaintiff's motion to suppress defendant's answer due to his failure to answer interrogatories. The parties appeared for oral argument on plaintiff's motion for summary judgment on August 17, 2007, even though it had been granted unopposed on August 1, 2007. Once the court discovered that the August 1, 2007 order granting the earlier motion for summary judgment could not be located, the court proceeded with the application. As a result, a new order awarding plaintiff summary judgment was signed on August 17, 2007. The actual amount of the judgment was $10,650.12 plus costs.

Unbeknownst to the court, on August 15, 2007, defendant filed papers seeking to vacate summary judgment on the basis that he had fully answered interrogatories. On October 5, 2007, the court signed two orders, one denying defendant's motion to vacate the suppression of his answer and the other denying defendant's request that the complaint be dismissed and summary judgment vacated. This appeal ensued.

Defendant's arguments are difficult to follow. It is clear, however, from his brief and statements at oral argument, that he believes that federal law requires plaintiff to first produce a signed contract before plaintiff can recover on the credit card account. Defendant also believes that federal law requires plaintiff's counsel to produce an original signed document proving that counsel is authorized to represent plaintiff. At oral argument, he also questioned the legitimacy of plaintiff's corporate status in New Jersey and demanded to see a corporate charter. The sole point in defendant's brief is that the alleged debt should be "re-examined" in the context of various federal statutes.

We turn first to defendant's claim that 15 U.S.C.A. §§ 1692 to 1692o, the Fair Debt Collection Practices Act (FDCPA), is applicable. The purpose of the FDCPA is to "eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses." 15 U.S.C.A. § 1692(e). This language has been held inapplicable to creditors collecting their own debts. See Aubert v. Am. Gen. Fin., Inc., 137 F.3d 976, 978 (7th Cir. 1998) (holding that a credit union and its corporate affiliate are not debt collectors under the FDCPA when they collect under their own name). The language of the FDCPA does apply, however, to initial contacts by attorneys who communicate with debtors about the credit card balances that they are attempting to collect. See Heintz v. Jenkins, 514 U.S. 291, 299, 115 S.Ct. 1489, 1493, 131 L.Ed. 2d 395, 402 (1995) (holding that the FDCPA "applies to attorneys who'regularly' engage in consumer-debt-collection activity, even when that activity consists of litigation.").

The FDCPA governs the manner and time within which a debt collector may communicate with a consumer as to the collection of a debt prior to the institution of an action against the consumer. 15 U.S.C.A. § 1692c. This credit card issuer, however, would be categorized as a "creditor," that is, "any person who offers or extends credit," rather than as a debt collector. 15 U.S.C.A. § 1692a(4). It is well-settled that "a creditor is not a debt collector for the purposes of the FDCPA and creditors are not subject to the FDCPA when collecting their accounts." Stafford v. Cross Country Bank, 262 F. Supp. 2d 776, 794 (W.D. Ky. 2003).

All that being said, it is not clear to us why defendant considers the FDCPA to be relevant to the conduct of either plaintiff or its attorneys. In the absence of some nexus between the law and the facts of this case, we can only find the claim to be without merit.

In addition to the FDCPA, defendant seeks review of the summary judgment award under several other statutes that do not apply. Because upon consideration of these contentions, we find that they lack sufficient merit to warrant further discussion in a written opinion, we need only mention them briefly. R. 2:11-3(e)(1)(E).

In his brief, defendant references 15 U.S.C.A. § 1643(b), which provides that "[i]n any action by a card issuer to enforce liability for the use of a credit card, the burden of proof is upon the card issuer to show that the use was authorized." Nothing in that statute provides a basis for affording defendant any relief because the summary judgment obtained against him only confirmed the arbitration award, which resulted from an uncontested arbitration hearing.

Defendant also directs our attention to 15 U.S.C.A. § 1692k, which addresses civil liability for "any debt collector who fails to comply with any provision of [the FDCPA]." Because defendant has not established that plaintiff failed to comply with any provision of the FDCPA, the statute is irrelevant.

Similarly, defendant cites to Fed. R. Evid. 1006. The Federal Rules of Evidence do not apply to these state court proceedings.

Defendant also cites to U.C.C. § 1-205(a) (2004), which provides that "[w]hether a time for taking an action required by [the Uniform Commercial Code] is reasonable depends on the nature, purpose, and circumstances of the action." He fails to explain how this section of the Code applies to this appeal.

Defendant's reference to "UCC Rule 1003 Admissibility Act" is entirely confusing. There is no such law.

As we have often recognized, an appellate court reviews a grant of summary judgment de novo, applying the same standard governing the trial court under Rule 4:46. See Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007). Generally, the court must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); see also R. 4:46-2(c).

By his use of the credit card, defendant bound himself to the terms of the cardholder agreement, which provides that any disputes between the parties "shall be resolved by binding arbitration." As per the agreement, the arbitration is to be conducted by the National Arbitration Forum under its code of procedure and will be "governed by the Federal Arbitration Act, 9 U.S.C. §§ 1-16." The agreement explains that a judgment may thereafter be entered confirming the arbitration award.

Defendant was served with notice of the arbitration proceeding and chose not to request that it be conducted in New Jersey. As a result, an uncontested arbitration proceeding was conducted on January 9, 2007. Defendant's response to the notice, dated October 10, 2006, did not address the merits of the claim; rather, it challenged the legitimacy of the proceeding itself and did so without any basis in law or fact. The complaint filed April 17, 2007, merely sought an award of judgment confirming the amount of the arbitration award. The court below awarded plaintiff summary judgment because, as a matter of law and fact, no other result could be reached. R. 4:46-2(c). Therefore, we affirm.

Affirmed.


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