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Fia Card Services National Association v. Angelo C. Fazio

September 16, 2011

FIA CARD SERVICES NATIONAL ASSOCIATION, PLAINTIFF-RESPONDENT,
v.
ANGELO C. FAZIO, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Monmouth County, Docket No. DC-6086-10.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 6, 2011

Before Judges Payne and Messano.

Defendant, Angelo Fazio, appeals from an order of summary judgment in the amount of $12,705.00 plus costs, entered in a collection action instituted by FIA Card Services National Association and arising from a credit card debt on an account with Bank of America.

The record discloses defendant's claim that, in April or May 2007, he entered into a contract with Lifestyles Holiday Vacation Club (LHVC) for the purchase of what defendant believed would be a "deeded fractional ownership" in a timeshare property. Thereafter, he determined that the ownership interest was, instead, a "Gold membership" in the property. Defendant claimed as a result that the transaction was fraudulent. Thereafter, he sought to transfer his membership to a London property, but LHVC refused to permit the transfer. No documents in support of these allegations, which are unsworn, are provided.

In payment for his claimed ownership interest in the property, defendant entered into what he allegedly believed to be a loan transaction. However, he claims that his "loan application" was utilized by LHVC, without his authorization, to file an "online credit card application" with Bank of America, with statements of account e-mailed to a representative of LHVC, not defendant. Evidence of the loan application and the application to Bank of America is likewise absent from the record.

The record appears to demonstrate that at least by May 8, 2007, statements of account were being sent to defendant at his address in Interlaken, New Jersey. At that time, the statement set forth a debt of $14,845, with a payment due of $148, and nothing past due. There is no evidence in the record that the amount was disputed at that time, the only customer statements of disputed item supplied by defendant being dated July 1, 2008. Additional monthly statements through June 9, 2008 have been supplied. With each, defendant has appended a customer statement of disputed item, dated July 1, 2008. The May 8, 2007 statement, indicating a balance of $14,845, has appended to it a July 1, 2008 customer statement of disputed item, giving a posting date of April 10, 2007 and the merchant name as "LH Escrow Agency." The disputed amount is listed as $14,845. The June 9, 2008 statement indicates a payment of $500 and finance charges of $350.57, which defendant challenged, stating in response to "Merchant Name," "Fin charge/rate/base (prev. balance)." No further detail was given. Evidence of similar challenges - all dated July 1, 2008 - to the finance charges imposed in prior months exist for the months of January through May 2008 and July through December 2007. The June 2007 statement indicates defendant's dispute, dated July 1, 2008, regarding a $39 late fee. The statements offer evidence of other purchases and payments, suggesting that defendant used the Bank of America card for more than just the one transaction.

On September 8, 2008, more than a year after the transaction at issue, defendant wrote to Bank of America, stating, in part:

Due to a series of events outside of both my authorization and control, I was misled into opening this account with Bank of America ("BofA") by a third party, Lifestyles Holiday Vacation Club ("LHVC"). Subsequent to this, this account fell into delinquency accruing severe penalties. In an attempt to rectify this situation, please allow me to explain the history involved and why I vehemently insist that any and all necessary action be taken on my behalf to both vacate this account and remove me from any and all liability associated therewith.

Defendant then set forth the facts that we have previously summarized regarding his dealings with LVHC.

Bank of America responded to defendant in a letter dated October 6, 2008, asking for further detail regarding "the $14,845.00 charge(s) from LH ESCROW AGENCY." The letter requested, in relevant part:

1. A letter detailing how the merchandise or service you ordered was described to you when you placed the order, how it differed from what was received, and the exact amount of the merchandise in dispute

2. The date(s) that you attempted to resolve the situation with the merchant, any actions you have taken, and the merchant's ...


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