July 30, 2009
AMERICAN EXPRESS TRAVEL RELATED SERVICE CO., INC., PLAINTIFF-APPELLANT,
BERNARD L. ESKINS, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-4900-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 09, 2009
Before Judges Lisa and Collester.
American Express Travel Related Service Co., Inc. (AMEX) appeals from the August 15, 2008 Law Division order granting summary judgment in favor of defendant Bernard L. Eskins. We reverse.
The sole issue in this case is whether Bernard Eskins was personally liable to AMEX on a business cash rebate card and retail installment credit agreement between the cardholder and AMEX. On September 24, 2007, AMEX filed suit to recover monies due for a book account on the revolving charge in the amount of $45,178.93 including interest and attorney's fees. An answer was filed by an attorney representing Eskins denying that he requested or was issued the credit card in question and therefore he had no liability to AMEX.
Following discovery, Eskins moved for summary judgment, certifying that he did not open an account with AMEX or agree to be personally liable on the business credit card. He further certified:
On its face, this is a business account that was provided to Future Rest Bedrooms. I am not personally liable for this account. The Court should clearly see by the title of the card that this card was issued to a business and was not issued to me personally.
In support of AMEX's summary judgment motion and in response to Eskins', E. Garabedian, records custodian for AMEX, certified that Eskins opened a business cash rebate card , and in the Credit Application/Retail Installment Sales Agreement that was sent to him, Eskins was liable as a basic card member for all purchases in the account. AMEX acknowledged that the original Credit Application/Retail Installment Sales Agreement was no longer available and attached what it termed was a true copy of the agreement which stated that:
The Company and the Basic Cardmember are responsible under this Agreement for all use of the Card Account by the Basic Cardmember and additional Cardmembers and by anyone else the Basic Cardmember or an additional Cardmember let use the card. . . .
Also attached to E. Garabedian's certification was a duplicate copy of a monthly bill for July 2006 in the names of "Bernard Eskins and Future Rst Bdrm" indicating a payment received on June 10, 2006 in the amount of $1,410.92 with a balance due of $30,502.84. An enclosed payment coupon was addressed to:
Future Rst Bdrm
601 Chews Landing Rd
The motion judge granted summary judgment to Eskins based on his certification that he did not have an account with AMEX and that "[I]f American Express had evidence that he had an account, they would have presented it."
A party is entitled to summary judgment if, on the full motion record, the adverse party, who is entitled to have the facts and inferences viewed most favorably to it, has not demonstrated the existence of a fact in dispute whose resolution in his favor would entitle him to judgment. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); Rankin v. Sowinski, 119 N.J. Super. 393, 399-400 (App. Div. 1972). In the instant case an inference can be drawn from the AMEX business cash rebate card statement sent to Eskins and Future Rest Bedrooms that Eskins was in fact a card member on the account and thereby personally liable. Therefore, there is a material dispute of fact that must be resolved by a fact finder, and summary judgment in favor of Eskins was improvidently granted.
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