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American Express Centurion v. Bonnie Boerer

January 12, 2012


On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Essex County, Docket No. DC-027822-10.

Per curiam.


Submitted October 26, 2011

Before Judges Sapp-Peterson and Ostrer.

Defendant, Bonnie Boerer, appeals from the trial court order granting summary judgment to plaintiff, American Express Centurian Bank, and denying her cross-motion for summary judgment. We find no merit to defendant's contention, in her cross-motion for summary judgment, that plaintiff violated the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C.A. §§ 1692 to 1692o. Nonetheless, because the motion judge failed to comply with Rule 1:7-4(a) when granting plaintiff's motion, we reverse and remand for a new hearing on plaintiff's summary judgment motion.

Plaintiff entered into a contract with defendant resulting in the issuance of a number of credit cards to her. Plaintiff incurred indebtedness as a result of her use of the credit cards and later defaulted under the terms of the contract when she failed to make the minimum monthly payments to plaintiff as they became due. Plaintiff closed defendant's account as a result of this non-payment and subsequently initiated an action to recover the unpaid balance due on the account when collection efforts failed. Defendant filed an answer asserting a general denial of the allegations contained in the complaint. Plaintiff thereafter moved for summary judgment, contending the fact of defendant's indebtedness was undisputed, as well as defendant's failure to abide by the terms and conditions of the credit agreement extended to her.

Defendant opposed summary judgment and filed a cross-motion for summary judgment. Defendant alleged plaintiff breached the terms of the credit agreement by unilaterally making changes to her account without notice and violating the FDCPA. Neither party requested oral argument, although apparently defendant mistakenly thought plaintiff was seeking oral argument and requested that the court deny oral argument. In an order, unaccompanied by a statement of reasons, the court granted plaintiff's motion. The court denied defendant's cross-motion, noting on the order that plaintiff was not a debt collector. Defendant moved for reconsideration. The court denied the motion, concluding there was "[n]o legal basis presented to vacate [c]court's previous orders." The present appeal followed.

Defendant's brief fails to comply with Rule 2:6-2, requiring that an appellant's legal argument be divided "under appropriate point headings." Nonetheless, it appears that defendant contends summary judgment should not have been granted because plaintiff: (1) failed to notify her of any changes in the terms under which the annual fee was paid, (2) unilaterally changed the terms of the agreement which previously included an unlimited line of credit with an extended payment option, (3) failed to refund fees for the line of credit, and (4) is subject to the FDCPA.

We have considered the arguments raised in light of the record and applicable legal principles and conclude defendant's claim in her cross-motion that plaintiff violated the FDCPA is without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), and the court properly concluded there was no legal basis upon which to grant defendant relief based upon this statute. We add the following brief remarks.

The FDCPA was enacted by Congress "to protect debtors from 'abusive, deceptive, and unfair debt collection practices[.]'" Rutgers-The State Univ. v. Fogel, 403 N.J. Super. 389, 394 (App. Div. 2008) (quoting 15 U.S.C.A. § 1692). To bring a private cause of action under the FDCPA, the alleged violator must qualify as a debt collector under the statute. Pollice v. Nat'l Tax Funding, L.P., 225 F.3d 379, 403 (3d Cir. 2000). Here, there was no dispute that plaintiff issued the line of credit to defendant. Consequently, plaintiff is a creditor rather than a debt collector and therefore not subject to the FDCPA.

Turning to the grant of plaintiff's summary judgment motion, we are constrained to reverse and remand the matter for rehearing on the summary judgment motion as the motion judge failed to provide any statement of reasons.

Rule 1:7-4(a) denotes a trial court's obligation to make findings of facts and state conclusions of law "on every motion decided by a written order that is appealable as of right[.]" As our Supreme Court has made clear:

Failure to perform that duty "constitutes a disservice to the litigants, the attorneys and the appellate court." Kenwood Assocs. v. Bd. of Adj. Englewood, 141 N.J. Super. 1, 4 (App. Div. 1976). Naked conclusions do not satisfy the purpose of [Rule] 1:7-4.

Rather, the trial court must state clearly its factual findings and correlate them with the relevant legal conclusions. [Curtis v. ...

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