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MBNA America Bank, N.A. v. Cohen

August 18, 2010

MBNA AMERICA BANK, N.A., PLAINTIFF-RESPONDENT,
v.
PAUL COHEN, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-1585-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 23, 2010

Before Judges Messano and LeWinn.

Plaintiff MBNA America Bank, N.A. (MBNA), commenced four suits against defendant Paul Cohen in the Law Division seeking to confirm previously-entered arbitration awards. In Docket No. DC-3056-06, filed in the Special Civil Part, plaintiff sought confirmation of an arbitration award previously entered. Defendant answered the complaint, and asserted, among other defenses, that there was no valid agreement to arbitrate the dispute. The parties each sought summary judgment; plaintiff prevailed and judgment was entered in its favor. Defendant sought reconsideration, but that application was stayed pending eventual consolidation of all four lawsuits.

In Docket Nos. L-1585-06, L-1713-06, L-1754-06, plaintiff also sought confirmation of three other arbitration awards previously entered on the same day as the first. Defendant failed to answer all three complaints. Plaintiff obtained final judgment by default in L-1585-06, and defendant's motion to vacate was initially denied. However, in the other two suits, although default judgments had been entered, defendant successfully moved to vacate those judgments and filed answers in both cases. Among other defenses, defendant asserted that there was no agreement to arbitrate. Defendant sought reconsideration of the denial of his motion to vacate the default judgment entered in Docket No. L-1585-06; that motion was stayed, as were plaintiff's motions to reconsider the vacation of the default judgments on the two matters. All four matters were consolidated by order, and a single judge considered all the motions.

Defendant filed a complaint in the federal district court alleging various statutory violations and sought removal of the four pending matters. The federal district court remanded the matters, concluding that supplementary jurisdiction did not attach.*fn1 Plaintiff then moved for summary judgment on Docket Nos. L-1713-06 and L-1754-06, and filed opposition to defendant's requested reconsideration in the other two matters. Defendant opposed those motions.

In a short written opinion that accompanied his order, the judge concluded from the motion record that defendant had written a series of checks for cash advances on four "distinct accounts" between October 2002 and December 2004. The judge further determined that "[d]efendant's cardmember agreement specifie[d] that all disputes arising with [sic] the defendant's use of the credit card w[ould] be submitted to binding arbitration . . . ." The judge observed that the "arbitration clause [wa]s agreed to when the consumer beg[an] using the credit card," and further noted that the account agreement clearly advised defendant "in large font print," that he was agreeing that his "claims c[ould] not be litigated in court." Finding that defendant "failed to raise factual defenses" to plaintiff's claims in all four matters, the judge denied defendant's motion to vacate the judgments previously entered in DC-3056-06 and L-1585-06, and awarded plaintiff summary judgment in the other two cases. This appeal followed.

Defendant raises the following points on appeal:

POINT I

ON CROSS-MOTIONS FOR SUMMARY JUDGMENT, MBNA MUST PRESENT AN EVIDENTIARY RECORD SUFFICIENT TO SUSTAIN ITS BURDEN OF PERSUASION ON ITS CLAIM. MBNA FAILED TO SUBMIT ANY ADMISSIBLE EVIDENCE THAT THE PARTIES CONTRACTED TO ARBITRATE DISPUTES. THEREFORE, SUMMARY JUDGMENT SHOULD HAVE BEEN ENTERED IN FAVOR OF [DEFENDANT].

POINT II

SERVICE OF PROCESS WAS INEFFECTIVELY ATTEMPTED ON AN INDIVIDUAL WHO HAPPENED TO BE IN DEFENDANT'S HOME BUT WAS NOT A ...


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