January 25, 2011
ELISA CHIERICO, PLAINTIFF-APPELLANT,
AMERICAN EXPRESS COMPANY, DEFENDANT-RESPONDENT, AND VISA U.S.A., DISCOVER BANK, AND LARRY J. HYPES, DEFENDANTS.
On appeal from Superior Court of New Jersey, Law Division, Civil Part, Bergen County, Docket No. L-8152-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 4, 2011
Before Judges Parrillo and Skillman.
Plaintiff Elisa Chierico appeals from a summary judgment dismissing her complaint against defendant American Express and entering judgment against her on American Express's counterclaim for $134,173.09, which represented outstanding balances on two credit cards on which she defaulted in making payments.*fn1
We affirm the summary judgment in American Express's favor substantially for the reasons set forth in Judge De La Cruz's April 3, 2009 written opinion. We add the following supplemental comments.
Plaintiff argues that there is a material contested issue of fact that precluded the grant of summary judgment because she denied receipt of the monthly statements that showed substantial balances on her credit card accounts. However, plaintiff did not deny that American Express sent those statements to the address she provided in opening the accounts. In fact, she does not deny making the minimum monthly payments shown on those statements over a period of many months before she went into default. Furthermore, plaintiff does not assign responsibility for her alleged non-receipt of the monthly statements to American Express but rather to defendant Hypes, with whom, as described in plaintiff's complaint, she had a "relationship."
Plaintiff's certification in opposition to American Express's motion for summary judgment stated: "I never received any credit card statements, possibly due to the corrupt nature of Hypes, who was stealing the statements to avoid me noticing the charges." If plaintiff in fact failed to receive the monthly statements sent to her by American Express as a result of their interception by Hypes, that does not provide a defense to American Express's claims. Therefore, the trial court properly granted American Express's motion for summary judgment. See New Century Fin. Servs., Inc. v. Dennegar, 394 N.J. Super. 595, 600-03 (App. Div. 2007).