United States District Court, D. New Jersey
NORMA I. SANTIAGO, on behalf of herself and those similarly situated, Plaintiff,
CAVALRY PORTFOLIO SERVICES, LLC, CAVALRY SPV I, LLC, JOHN DOES #1-10, Defendants.
MCNULTY, UNITED STATES DISTRICT JUDGE.
plaintiff, Norma I. Santiago, opened a JCPenney store credit
card, incurred debt, and defaulted. The debt is currently
held by defendants Cavalry Portfolio Services, LLC and
Cavalry SPV I, LLC (together, "Cavalry"). Ms.
Santiago sues Cavalry, on behalf of herself and all others
similarly situated, for alleged violations of the Fair Debt
Collection Practices Act ("FDCPA") and die New
Jersey Consumer Fraud Act ("NJCFA"). Now before the
court is Cavalry's motion for summary judgment.
Norma I. Santiago opened a JCPenney store credit card account
in May 2006. (DSMF ¶ 1; PRSMF ¶ 1). Ms. Santiago
claims that this credit card could be used at JCPenney only.
(PRSMF ¶ 1). Cavalry states that in the relevant period
the credit card could be used at JCPenney, CVS, Rite Aid, and
Sephora.com. (ECF No. 37, ¶¶ 6-7). The applicable
terms and conditions were mailed to Ms. Santiago at her home.
(DSMF ¶ 2; PRSMF ¶ 2).
to Cavalry, the terms and conditions for the JCPenney card
state as follows: "You may use your Card or Account to
purchase goods or services (including mail, internet, catalog
and phone orders, if any) at JCPenney or other companies
authorized to accept the Card ("Purchases") up to
any limit ("Credit Limit") we may establish."
(DSMF ¶ 4; PRSMF ¶ 4). Ms. Santiago, however,
disputes that Cavalry has proffered the agreement that
actually governs her card. (PRSMF ¶ 4). She also claims
that the JCPenney card is a store card, not a "general
purpose credit card" that can be used anywhere. (PRSMF
did not provide financing for the JCPenney card; financing
was provided by GE Money Bank. (DSMF ¶ 10; PRSMF ¶
10). Cavalry claims that JCPenney was not a party to the
agreement between Ms. Santiago and GE Money Bank, but Ms.
Santiago says it was. (DSMF ¶ 12; PRSMF ¶ 12). Ms.
Santiago admits that neither GE Money Bank, GE Capital Bank,
GE Capital Retail Bank, or Synchrony Bank (a successor of GE
Capital Retail Bank) ever sold her goods or services. (DSMF
¶¶ 14, 20; PRSMF ¶¶ 14, 20).
Santiago admits to making purchases with the JCPenney card
until May 12, 2009. (PRSMF ¶ 6). Cavalry claims that Ms.
Santiago used the card through October 2010. (DSMF ¶ 6).
Ms. Santiago made her last payment on the JCPenney card on
September 6, 2010. (DSMF ¶ 15; PRSMF ¶ 15). She
defaulted on the amount owed in October 2010. (DSMF ¶
15; PRSMF ¶ 15). On or about March 17, 2011, GE Money
Bank wrote to Ms. Santiago regarding the debt owed on the
JCPenney card. (DSMF ¶ 16; PRSMF ¶ 16).
April 20, 2011, GE Money Bank sold, assigned, and transferred
to Equable Ascent Financial, LLC ("EAF") all of GE
Money Bank's right, tide, and interest in Ms.
Santiago's account. (DSMF ¶ 17; PRSMF ¶ 17). On
July 2, 2013, EAF sold, assigned, and transferred to Cavalry
SPV all of EAF's right, title, and interest in Ms.
Santiago's account. (DSMF ¶ 18; PRSMF ¶ 18).
Santiago did not make any further payments on the JCPenney
card after September 2010. (DSMF ¶ 19; PRSMF ¶ 19).
On or about April 29, 2015, Cavalry filed suit in the
Superior Court of New Jersey, Law Division, to collect the
balance owing on the account. (DSMF ¶ 19; PRSMF ¶
19). Cavalry claims the balance was $1, 678.38. (DSMF ¶
about November 4, 2015, Ms. Santiago filed an amended
complaint against Cavalry in the Superior Court of New
Jersey, Law Division. (ECF No. 1, ¶ 2; ECF No. 1-1). It
alleged that Cavalry violated the FDCPA and the NJCFA; it
sought to certify a class of others similarly situated. (ECF
No. 1, ¶ 3; ECF No. 1-1, ¶ 1, ¶¶ 46-59).
Cavalry removed the action to this federal court. (ECF No.
Santiago alleges that Cavalry sought to collect an invalid
debt. (ECF No. 13, ¶ 37). According to Ms. Santiago, the
four-year statute of limitations in Article 2 of the Uniform
Commercial Code ("Article 2") had expired when
Cavalry filed its April 29, 2015 collection action. Cavalry
disagrees, arguing that a six-year statute of limitations
applies. Now before the court is Cavalry's motion for
summary judgment. (ECF No. 30).
Rule of Civil Procedure 56(a) provides that summary judgment
should be granted "if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law." Fed.R.Civ.P.
56(a); see also Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986); Kreschollek v. S. Stevedoring
Co., 223 F.3d 202, 204 (3d Cir. 2000). In deciding a
motion for summary judgment, a court must construe all facts
and inferences in the light most favorable to the nonmoving
parry. See Boyle v. County of Allegheny
Pennsylvania, 139 F.3d 386, 393 (3d Cir. 1998). The
moving party bears the burden of establishing that no genuine
issue of material fact remains. See Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). "[W]ith
respect to an issue on which the nonmoving party bears the
burden of proof ... the burden on die moving party may be
discharged by 'showing'-that is, pointing out to the
district court-that there is an absence of evidence to
support die nonmoving party's case."
Celotex, 477 U.S. at 325.
die moving party has met tiiat threshold burden, the
nonmoving party "must do more than simply show that
there is some metaphysical doubt as to material facts."
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp.,475 U.S. 574 (1986). The opposing party must
present actual evidence that creates a genuine issue as to a
material fact for trial. Anderson, 477 U.S. at 248;
see also Fed. R. Civ. P. 56(c) (setting forth types
of evidence on which nonmoving party must rely to support its
assertion that genuine issues of material fact exist).
"[Unsupported allegations ... and pleadings are
insufficient to repel summary judgment." Schoch v.
First Fid. Bancorporation,912 F.2d 654, 657 (3d Cir.
1990); see also Gleason v. Norwest Mortg., Inc., 243
F.3d 130, 138 (3d Cir. 2001) ("A nonmoving party has
created a genuine issue of material fact if it has provided
sufficient evidence to allow a jury to find in its favor at
trial."). If die nonmoving party has failed "to
make a showing sufficient to establish die existence of an
element essential to that parry's case, and on which that
party will bear the burden of proof at trial, ... there can
be 'no genuine issue of ...