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Capital One Bank (Usa), N.A v. Osmara G. Palomino

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


September 25, 2012

CAPITAL ONE BANK (USA), N.A., PLAINTIFF-RESPONDENT,
v.
OSMARA G. PALOMINO, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Essex County, Docket No. DC-8586-11.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 12, 2012

Before Judges Simonelli and Koblitz.

Osmara G. Palomino appeals from the June 24, 2011 order granting summary judgment in the amount of $996.22 plus costs of suit and the August 19, 2011 order denying reconsideration. Finding merit to Palomino's arguments, we reverse.

A complaint was filed by Capital One Bank (USA), N.A. (Capital One) against Palomino in the Special Civil Part demanding judgment in the amount of $938.81 stemming from Visa credit card purchases. Palomino filed an answer indicating she did not owe the money. Capital One then filed a motion for summary judgment attaching only a certification from an authorized agent with a computer-generated report to substantiate the debt. Palomino responded to interrogatories by certifying that she never used a Capital One Visa account. The judge granted summary judgment in favor of Capital One.

Palomino then filed a motion for reconsideration, directing the judge to our recent decision, LVNV Funding, L.L.C. v. Colvell, 421 N.J. Super. 1, 7-8 (App. Div. 2011), in which we reiterated the proof required to obtain a judgment on a revolving credit card debt. In response to the motion for reconsideration, Capital One supplied the judge with two past-due credit card statements from 2010, one covering July to August and the other August to November. Both statements reflected only a previous balance and the addition of fees and interest. The more recent statement reflected a total due of $924.57, including $312 in fees and $142.27 in interest accumulated thus far that year. The judge denied Palomino's motion for reconsideration.

We review a grant of summary judgment de novo, applying the same standard governing the trial court under Rule 4:46. Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007). Generally, we must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); see also R. 4:46-2(c).

We are constrained to reverse the grant of summary judgment here, where Palomino has certified that she does not owe the debt and Capital One does not identify any specific transactions. See LVNV Funding, L.L.C., supra, 421 N.J. Super. at 3.

Reversed and remanded for trial.

20120925

© 1992-2012 VersusLaw Inc.



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