September 16, 2011
FIA CARD SERVICES NATIONAL ASSOCIATION, PLAINTIFF-RESPONDENT,
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.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 response to your request for credit. . . .
3. Copies of the front and back of any sales slips, invoices, or contracts involved in the purchase . . . .
4. If merchandise was involved, provide the date you received it and your attempts to return the merchandise to the merchant . . . .
Defendant responded by letter dated October 20, 2008, stating that he "purchased a timeshare in person and it differed from what was explained," since he expected a fractional ownership interest in specific property and received membership in a club. He stated that he attempted to resolve the issue numerous times, commencing in September 2007 at the time he expected to receive the deed for his property interest. He then said:
I contacted them every month after talking to Bank of America in Oct and November because they were receiving my Bank of America statement to one of their employee e-mail addresses that opened my Bank of America credit card. They claimed that they could not change it. My calls in Jan and Feb were to use a sister property in London and both of those requests were turned down. This again showed that if it was a service I purchased I did not use any of the membership to the club nor did I use the properties if it was merchandise they ever did send me.
In April and March they said the certificate was a deed of trust for a membership not a fractional ownership of real property. In May and Jun[e] I attempted to resolve the matter with the help of a lawyer and Lifestyles Holiday Vacation Club said that they would be able to downgrade my membership to a smaller unit but that would only relieve my loan with them.
Any sale of the membership did not come with guarantees on value and that is w[h]ere we parted ways on being able to resolve this without disputing what was purchased, what was received, what was not received and what was used or not used.
Although defendant stated that he appended sales slips and contracts to his letter to Bank of America, they have not been included with this appeal. No other communication with Bank of American appears in the appellate record.
On January 4, 2010, plaintiff's law firm, Ragan & Ragan, contacted defendant regarding the outstanding account. On January 20 2010, defendant responded, stating that "the account in question is still an open case with the Bank of American Dispute Department" and that he was "working with Bank of America directly to resolve this issue." Thus, the account was forwarded for collection in error. On March 10, 2010, plaintiff filed suit seeking $12,705 plus accrued interest and costs of suit. Defendant answered the complaint on April 20, 2010, checking as applicable the following:
(1) The good[s] or services were not received
(4) I/We did not order the goods or services
(5) The dollar amount claimed by the plaintiff(s) is incorrect
(6) Other -This is still an open dispute with Bank of America and I informed Regan & Regan of such in a letter signed for by Kathy Vernon on 1/25/2010.
A jury trial was requested.
On May 10, 2010, plaintiff's counsel filed discovery requests on defendant. On May 24, 2010, plaintiff moved for summary judgment, noting defendant's defenses, and that he claimed there was still an open dispute with Bank of America. Appended to the motion was Bank of America's cardholder agreement, the dispute resolution provisions of which are illegible. Also appended were defendant's statements of account from October 8, 2008 through April 3, 2009. None contains an executed customer statement of disputed item. Additionally, the motion was supported by the certification of Thomas C. Kinney in which he noted defendant's January 20, 2010 letter advising that the account was still an open case with Bank Of America's Dispute Department and that he was working with the Bank to resolve the issue; that on inquiry, no record of payment arrangements with the Bank had been made; that a complaint and answer with stated defenses had been filed; that discovery had been served; and that the time for discovery responses had not expired.
On June 11, 2010, counsel sent a letter to defendant informing him that his discovery responses were overdue, and that an appropriate motion would be filed. On June 14, 2010, plaintiff moved to strike without prejudice defendant's answer and defenses, pursuant to Rule 4:23-5, for failure to respond to discovery. Summary judgment was granted without argument on June 16, 2010. The discovery motion does not appear to have been heard.
On June 28, 2010, defendant opposed plaintiff's May 24 motion for summary judgment and its June 14 motion to strike his answer and suppress his defenses. In his letter, defendant again set forth his position regarding the charges and his liability for them and his continuing attempt to resolve the matter with Bank of America. Defendant also asserted that the Cardholder Agreement required arbitration of any unresolved claims regarding disputed charges - a matter that we are unable to verify, lacking the document to which defendant refers.*fn1 In addition to seeking an order denying plaintiff's motions, defendant requested that the court enter an order dismissing plaintiff's complaint, entering judgment in defendant's favor, and requiring plaintiff to notify all relevant credit reporting agencies that the debt was not owed.
No response to defendant's June 28 letter was supplied by the court. On July 30, 2010, defendant wrote to "request information" regarding the proceedings that had occurred and to move to supplement the record with his June 28, 2010 opposition and, alternatively, to remand the matter for reconsideration by the motion court. Defendant also requested that the June 16 order of summary judgment be vacated because its service provisions were not satisfied, and he requested a stay. No response appears in the record before us. This appeal followed.
Our review of the arguments on appeal discloses that neither party has addressed the effect of federal or state law on the collectibility of this debt, particularly but not limited to the provisions of 15 U.S.C.A. §§ 1666 and 1666i given the fact that an open dispute has been alleged to exist between defendant and the Bank of America regarding the validity of the initial charges and the imposition of interest fees and other penalties as the result of the nonpayment of those charges - an issue that was before the court as the result of plaintiff's certification in support of summary judgment and defendant's answer to the complaint. Accordingly, we direct that the issues raised be briefed simultaneously, within thirty days of the filing of this opinion.
Jurisdiction is retained.