George A. Weathersby v. Citibank, N.A.
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2004-CP-001906-COA
GEORGE A. WEATHERSBY
APPELLANT
v.
CITIBANK, (SOUTH DAKOTA), N.A.
DATE OF TRIAL COURT JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANTS:
ATTORNEYS FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLEE
08/16/2004
HONORABLE LEE HOWARD
OKTIBBEHA COUNTY CIRCUIT COURT
GEORGE WEATHERSBY (PRO SE)
J. MARK FRANKLIN, III
LARA E. GILL
CONTRACT
CITIBANK’S MOTION FOR SUMMARY
JUDGMENT GRANTED
AFFIRMED: 05/02/2006
CONSOLIDATED WITH
NO. 2004-CP-002098-COA
GEORGE A. WEATHERSBY AND GINNIE
WEATHERSBY
v.
CITIBANK (SOUTH DAKOTA), N.A.
DATE OF TRIAL COURT JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
APPELLANTS
APPELLEE
09/13/2004
HONORABLE LEE HOWARD
OKTIBBEHA COUNTY CIRCUIT COURT
GEORGE WEATHERSBY AND GINNIE
WEATHERSBY (PRO SE)
J. MARK FRANKLIN, III
LAURA E. GILL
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
CONTRACT
CITIBANK’S MOTION FOR SUMMARY
JUDGMENT GRANTED
AFFIRMED: 05/02/2006
EN BANC.
KING, C.J. FOR THE COURT:
¶1.
Citibank (South Dakota), N.A. (Citibank), brought two actions seeking recovery on
delinquent credit card accounts against George A. Weathersby and his wife, Ginnie M. Weathersby.
The first action (2004-CP-1906) is against George Weathersby (Weathersby) only. The second
action (2004-CP-2098) is against both George and Ginnie Weathersby (Weathersbys). The
Oktibbeha County Circuit Court granted summary judgment to Citibank against Weathersby on
August 24, 2004, and against the Weathersbys on September 13, 2004. It is from this grant of
summary judgment that Weathersby and the Weathersbys appeal.
Both actions have been
consolidated on appeal, but will be discussed separately.
FACTS
1. Citibank v. George A. Weathersby
¶2.
Citibank notified Weathersby of delinquent credit card debt by correspondence on August
14, 2003. Weathersby disputed the debt on August 22, 2003. After verifying the debt to Weathersby
with credit card statements, Citibank filed its complaint with the Oktibbeha County Circuit Court
for $15, 607.96, for failure to make payments, interest at 27.99% per annum, and attorney’s fees and
collection costs. Weathersby, acting pro se, filed several pleadings, including a Response Pleading
of Special Matter and Defendant’s Motion for Extension to Respond Pending Discovery So That
2
Affirmative Defenses Can Be Effectively and Properly Asserted, the latter of which was deemed a
general denial of Citibank’s complaint. On April 1, 2004, Citibank filed its Motion for Summary
Judgment, while Weathersby filed an Objection to Hearing on Plaintiff’s Motion for Summary
Judgment Pending Defendant’s Motion to Dismiss.
On April 15, 2004, the court granted
Weathersby’s request for an extensions of time to respond to Citibank’s motion, including a Motion
to Dismiss for Lack of Subject Matter Jurisdiction and Standing to Sue on claims that the debt
should be deemed void because Citibank failed to verify it, since Citibank cannot produce
Weathersby’s signed credit agreement.
2. Citibank v. George and Ginnie Weathersby
¶3.
Citibank demanded payment from George and Ginnie Weathersby on their delinquent credit
card accounts on February 24, 2004.1 Upon failure to satisfy the demand, Citibank filed its
complaint against the Weathersbys on March 29, 2004, for $29,094.66, interest at 27.99% per
annum, attorney’s fees and collection costs. Again, Citibank verified the debt to the Weathersbys
by sending credit card statements. The Weathersbys, acting pro se, filed a Motion to Dismiss
Complaint for Lack of Subject Matter Jurisdiction and Standing to Sue on May 4, 2004, claiming
again that the debt should be deemed void because Citibank could not verify it. The motion was
denied by the court on August 6, 2004. Citibank filed a motion for summary judgment on August
27, 2004, and it was granted on September 13, 2004.
DISCUSSION
1
One account was opened by George Weathersby with a present balance of $8,597.60.
George and Ginnie Weathersby jointly opened another account with a present balance of $13,
487.93.
3
¶4.
A motion for summary judgment should only be granted by the trial court when the
pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits,
show that there is no genuine issue as to any material fact, and that the moving party is entitled to
judgment as a matter of law. Vaughn ex rel. Vaughn v. Estate of Worrell, 828 So.2d 780, 782 (¶9)
(Miss. 2002) (citing M.R.C.P. 56(c)). The burden of proving the absence of disputed material issues
of fact rests upon the moving party. Miller v. Meeks, 762 So.2d 302, 304 (¶3) (Miss. 2000). In
considering whether material disputed facts exist, the court is obligated to view the facts in the light
most favorable to the nonmoving party. Robinson v. Singing River Hosp. Sys., 732 So.2d 204, 206
(¶7) (Miss. 1999). On appeal, we employ a de novo standard of review from a grant of summary
judgment by the trial court. Vaughn, 828 So.2d at 782 (¶9).
¶5.
Weathersby and the Weathersbys suggest that genuine issues of material fact exist because
Citibank did not comply with federal law in pursing its collection action and is barred from bringing
action on the accounts.
¶6.
“[Credit] [c]ard-use is both a request to the issuer for a loan against a line of credit and a
promise to pay.” In re Mercer, 246 F.3d 391, 405-06 (5th Cir. 2001). Therefore, card-use forms a
unilateral contract: the holder promises to repay the debt and the issuer performs by reimbursing the
merchant who accepted the card in payment. Id. (citing Anastas v. American Sav. Bank (In Re
Anastas), 94 F.3d 1280, 1285 (9th Cir. 1996)). When a consumer fails to pay any alleged debt, the
creditor has a right to recoup moneys, as long as it is in compliance with the Fair Debt Collection
Practices Act. The Fair Debt Collection Practices Act gives the following instructions when notifying
a consumer of an alleged debt:
4
Within five days after the initial communication with a consumer in connection with
the collection of any debt, a debt collector shall, unless the following information is
contained in the initial communication or the consumer has paid the debt, send the
consumer a written notice containing:
(1) the amount of the debt;
(2) the name of the creditor to whom the debt is owed;
(3) a statement that unless the consumer, within thirty days after receipt of the notice,
disputes the validity of the debt, or any portion thereof, the debt will be assumed to
be valid by the debt collector;
(4) a statement that if the consumer notifies the debt collector in writing within the
thirty-day period that the debt, or any portion thereof, is disputed, the debt collector
will obtain verification of the debt or a copy of a judgment against the consumer and
a copy of such verification or judgment will be mailed to the consumer by the debt
collector; and
(5) a statement that, upon the consumer's written request within the thirty-day period,
the debt collector will provide the consumer with the name and address of the
original creditor, if different from the current creditor.
15 U.S.C. § 1692g (a) (2000)
¶7.
On August 14, 2003, Citibank issued Weathersby a letter notifying him of his debt. On
August 22, 2003, Weathersby sent correspondence disputing the debt with Citibank. In compliance
with the Fair Debt Collection Practices Act, Citibank sent Weathersby credit card statements
verifying his $15, 607.96 debt on September 29, 2003. When no payment was remitted, Citibank
filed its complaint against Weathersby.
¶8.
On February 24, 2004, in compliance with the requirements of the Fair Debt Collection
Practices Act, Citibank issued George and Ginnie Weathersby separate letters notifying them of their
indebtedness to Citibank. After no payment was remitted, Citibank filed its complaint against the
Weathersbys. Because Citibank did in fact comply with the Fair Debt Collection Practices Act in
requesting the debt, there is no genuine issue of material fact as to this issue.
¶9.
Weathersby and the Weathersbys further claim that Citibank did not establish that it was the
holder of the subject accounts because Citibank failed to verify their debts by not producing their
5
original signed credit agreements. Contrary to the Weathersbys’ claims, verification involves
nothing more than a debt collector confirming in writing that the amount being demanded is what
the creditor claims is owed. Chaudry v. Gallerizzo, 174 F.3d 394, 406 (4th Cir. 1999). Verification
is only intended to eliminate the problem of debt collectors charging the wrong person, or attempting
to collect debts which have already been paid. Id. The creditor has no further obligation to forward
copies of bills or other evidence of debt. Id.
¶10.
In verifying Weathersby’s and the Weathersbys’ debts, Citibank sent affidavits from
employees on both accounts stating that Citibank owned the accounts, and that Weathersby and the
Weathersbys owed on those accounts. Citibank also sent Weathersby and the Weathersbys copies
of several months worth of credit card statements originally mailed to them. We find that this was
sufficient in verifying Weathersby’s and the Weathersbys’ debts.2 Accordingly, this issue is also
without merit. Therefore, the judgment granting summary judgment is affirmed.
¶11. THE JUDGMENT OF THE OKTIBBEHA COUNTY CIRCUIT COURT IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.
LEE AND MYERS, P.JJ., SOUTHWICK, CHANDLER, GRIFFIS, BARNES, ISHEE
AND ROBERTS, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY WITHOUT
SEPARATE WRITTEN OPINION.
2
Computer printouts are sufficient to verify debts. See Graziano v. Harrison, 950 F.2d
107, 113 (3rd Cir. 1991).
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