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Lvnv Funding, L.L.C v. Mary B. Colvell

July 12, 2011

LVNV FUNDING, L.L.C., PLAINTIFF-RESPONDENT,
v.
MARY B. COLVELL, DEFENDANT-APPELLANT.



The opinion of the court was delivered by: Koblitz, J.S.C.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Submitted June 8, 2011

Before Judges Payne, Baxter and Koblitz.

The opinion of the court was delivered by KOBLITZ, J.S.C. (temporarily assigned).

Defendant Mary B. Colvell appeals from an entry of summary judgment on July 22, 2010, in favor of plaintiff LVNV Funding, L.L.C. (LVNV), a collection agency that was assigned a $12,060.75 balance she purportedly owed on her Citibank Sears Gold MasterCard (MasterCard), and denial of reconsideration on September 29, 2010. After reviewing the record in light of the contentions advanced on appeal, we reverse and remand, concluding that the proofs submitted by LVNV were insufficient to grant summary judgment. In particular, when suing to collect the balance allegedly owed on an unpaid revolving credit card account, the creditor must prove more than merely the total amount remaining unpaid. Instead, as required to obtain a default judgment by Rule 6:6-3(a), the creditor must set forth the previous balance, and identify all transactions and credits, as well as the periodic rates, the balance on which the finance charge is computed, other charges, if any, the closing date of the billing cycle, and the new balance. We also conclude that the trial court erred by failing to afford defendant the oral argument she requested.

LVNV is a credit agency, which purchased a portfolio of debt from Citibank on January 10, 2008, which included Colvell's MasterCard account. After purchasing the account from Citibank, all ownership rights were assigned to LVNV, including the right to collect the balance owed, plus any interest accrued at the rate specified.

In its complaint, LVNV alleged that defendant was indebted to LVNV in the amount of $12,060.75, including interest, service charges, costs and attorney fees, which defendant had agreed to pay in her MasterCard agreement. LVNV claimed that demand for payment had "been made and gone without heed." In her answer, defendant denied all of LVNV's allegations.

LVNV sent defendant interrogatories. She responded to essentially every question by saying that she was "not aware of any written agreements or contracts with LVNV." She also stated that she "did not receive billing statements from [p]laintiff," and that she "made no agreements with [p]laintiff to resolve alleged indebtedness." A trial date was set for August 31, 2010.

On July 6, 2010, LVNV filed a motion for summary judgment in the Special Civil Part attaching a copy of a computer-generated report, which was intended to contain defendant's personal information, balances, credits and payments made, current balance, finance charge rate and annual percentage rate. The information on this form was not complete as it did not list any transactions made by defendant or the billing cycle information, and it listed the annual percentage and finance charge rates as zero. Upon receiving initial notice of the motion for summary judgment, defendant filed opposition to the motion, requesting oral argument.

The trial court did not grant oral argument and granted summary judgment to LVNV on July 22, 2010, when a judgment against defendant in the amount of $12,121.22 was also entered. The court denied defendant's motion for reconsideration, stating in pertinent part that defendant never once denied having the MasterCard debt. After defendant appealed, pursuant to Rule 2:5-1(b), the court issued a supplemental statement of reasons for granting summary judgment, repeating that defendant did not deny owing a debt on the MasterCard, and stating that evidence sufficient to enter default judgment under Rule 6:6-3 was presented by LVNV.

I

Defendant raises many issues in her brief and supplemental brief, only two of which we find merit discussion. See R. 2:11-3(e)(1)(E). Defendant contends that oral argument should have been held by the court prior to granting summary judgment. We agree with defendant that oral argument should have been permitted by the ...


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