Discover Bank, Issuer of the Discover Card VS Jacinta M. Ruffin a/k/a Jacinta Winslow

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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCL IT NO 2012 C 1672 DISCOVER BANK ISSUER OF THE DISCOVER CARD VERSUS JACINTA M RUFFIN A JACINTA WINSLOW K J 7udgment Rendered APR 2 6 O13 On Appeal from the City Court ofThibodaux and Ward Two Parish of Lafourche State of Louisiana Trial Court No 15716 The Honorable Mark D Chiasson Judge Presiding Nelson Dan Taylor Sr Thibodaux Louisiana Attorney for Defendant Appellant Jacinta M Ruffin Maro Petkovicfi Jr Attorneys for Plaintiff Appellee Peter riffiley Tl Discover Bank New Orleans Louisiana BEFORE GUIDRY CRAIN AND THERIOT JJ CRAIN J The defendant in this collection suit Jacinta M Ruffin a Jacinta k Winslow appeals the judgment of the City Court of Thibodaux denying her objection of no right of action and granting summary judgment awarding principal interest and attorney fees to Discover Bank Issuer of the Discover Card For the reasons that follow we affirm FACTS Discover Bank instituted suit against Ruffin seeking to collect the outstanding balance on her Discover Card which totaled 6 together with 11 000 legal interest attorney fees and costs Ruffin filed a general denial and Discover Bank moved for summary judgment Ruffin responded with ato Dismiss Motion on Grounds of No Right of Action wherein she alleged that the actual party appearing before the court was not Discover Bank but a professional debt collector and nothing in the record established the debt collector sright to recover a debt allegedly owed to Discover Bank The City Court denied the objection of no right of action and granted Discover Bank motion for summary judgment s Ruffin now appeals DISCUSSION Ruffin contends the City Court ened in denying her objection of no right of action and granting summary judgment She argues that the affidavits of record reveal that an entity identifying itself as DB Servicing Corporation initiated this suit and that DB Servicing Corporation has not established that it has standing to bring this suit or act on behalf of Discover Bank An action can only be brought by a person having a real and actual interest that he asserts La Code Civ Pro art 681 The function of an objection of no right of action is to determine whether the plaintiff belongs to the class of persons z to whom the law grants the cause of action asserted in the suit Reese v State Dept of Public Safety ections 1615 Cor 03 La 2 866 So 2d 244 246 04 The objection assumes that the petition states a valid cause of action far some person and tests whether the plaintiff has an interest in judicially enforcing the right asserted Francis v Francis 11 La App 1 Cir 6 97 So 3d 2116 12 13 1091 1093 writ denied 12 La 7 93 So 3d 582 The question is 1635 12 24 simply whether the plaintiff has a right to sue the defendant Niemann v Crosby Development Co L 11 La App 1 Cir 5 92 So 3d 1039 1046 C 1337 12 3 Evidence supporting or controverting an objection of no right of action is admissible and in the absence of evidence to the contrary the averments of fact in the pleadings will be taken as true Niemann 92 So 3d at 1046 Whether a plaintiff has a right of action is a question of law and is reviewed de novo on appeal Eagle Pipe and Supply Inc v Amerada Hess Corp 10 La 2267 11 25 10 79 So 3d 246 256 The petition names Discover Bank as the plaintiff The City Court correctly recognized that by asserting an objection of no right of action Ruffin challenged the authority of the named plaintiff to sue Ruffin to collect the alleged debt The entire suit recard was submitted as evidence The recard establishes that Discover Bank eYtends credit by issuing Discover Cards and that Ruffin owes a principal amount of 6 on her Discover Card Discover Bank has a right of action to 11 000 bring this collection suit and the City Court correctly denied Ruffin objection s While not disputing Discover Bank right of action Ruffin argues that s Discover Bank is only the named plaintiff and that suit was actually instituted by DB Servicing Corporation Ruffin allegations relate to the affidavits filed into s the record in which account managers for DB Servicing Corporation attest that DB Seroicing Corporation is the servicing affiliate for Discover Bank and maintains 3 the records on Discover Card accounts These affidavits establish the plaintiff Discover Bank as the owner of the delinquent account DB Servicing Corporation as the servicing affiliate with knowledge of the amounts due and the principal amount due of 11 000 6 The affidavits do not suggest that DB Servicing Corporation filed suit for Discover Bank Ruffin argues that the affidavits contain unsubstantiated hearsay She does not argue that the affidavits are not competent evidence that should not have been considered in determining whether Discover Bank met its burden of proo See La Code Civ Pro art 967 Neither did she file a motion to strike the affidavits ar otherwise present her challenge to the trial court The inadequacy of an affidavit is a formal defect that is deemed waived if not timely objected to in the court below Klohn v Louisiana Power Light Co 394 So 2d 636 637 La App 1 Cir 1980 writ denied 399 So 2d 612 La 1981 Thus to the extent Ruffin s appellate brief can be construed to challenge consideration of the affidavits in support of the motion far summary judgment the objection is deemed waived After de novo review of the recard we find that summary judgment was appropriately granted CONCLUSION For the reasons set forth herein we affirm the judgment of the City Court Costs of this appeal are assessed to 7acinta M Ruffin a Jacinta Winslow k AFFIRMED a

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