NEW CENTURY FINANCIAL SERVICES, INC v. CHRISTINE DUNN

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3460-07T23460-07T2

NEW CENTURY FINANCIAL SERVICES, INC.,

Plaintiff-Respondent,

v.

CHRISTINE DUNN,

Defendant-Appellant.

________________________________________________________________

 

Argued March 24, 2009 - Decided

Before Judges Graves and Espinosa.

On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Ocean County, Docket No. DC-14335-07.

Appellant Christine Dunn argued the cause pro se.

Lawrence J. McDermott, Jr., argued the cause for respondent (Pressler and Pressler, L.L.P., attorneys; Mr. McDermott, on the brief).

PER CURIAM

Plaintiff, New Century Financial Services, Inc. ("New Century"), filed this lawsuit in the Special Civil Part, seeking to collect a debt it had purchased that was owed by defendant, Christine Dunn, to Providian Financial Corporation ("Providian"). Defendant's answer was that she neither admitted nor denied the allegations in the complaint. Defendant also filed a counterclaim alleging frivolous litigation. She appeals from an order granting summary judgment to plaintiff. We affirm.

Defendant raises the following issues on appeal:

POINT I

SUMMARY JUDGMENT SHOULD BE DENIED DUE TO THE EXISTENCE OF GENUINE ISSUES OF MATERIAL FACTS.

POINT II

PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT WAS PREMATURE AND SHOULD HAVE BEEN DENIED BECAUSE DISCOVERY WAS NOT COMPLETE.

POINT III

THE COURT ERR[ED] BY ADMITTING UNAUTHENTICATED DOCUMENTS AND EVIDENCE INTO THE RECORD WHILE IGNORING DEFENDANT'S ORAL AND WRIT[TEN] ARGUMENT.

Because we review the summary judgment motion de novo, Prudential Prop. Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998), our inquiry is "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). The moving party must show, based upon competent credible evidence, that "there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). To withstand summary judgment, the non-moving party must come forward with evidence that creates a "genuine issue as to any material fact challenged." Brill, supra, 142 N.J. at 529. This is not satisfied by offering "only facts which are immaterial or of an insubstantial nature, a mere scintilla, '[f]anciful, frivolous, gauzy or merely suspicious.'" Ibid. (citation omitted). The Supreme Court instructed, "where the party opposing summary judgment points only to disputed issues of fact that are 'of an insubstantial nature,' the proper disposition is summary judgment." Ibid. (citation omitted).

Plaintiff presented the certification of Heather Caprio, an account manager for New Century who is familiar with its electronically maintained records. Ms. Caprio certified that New Century purchased a Providian account number in defendant's name ("the Providian account number"). Copies of bills of sale were submitted to corroborate this statement. Ms. Caprio further certified that there was an outstanding account balance of $6955.70, resulting in an accrual of $167.61 in interest and a total of $7123.31 due and owing. Plaintiff also submitted a computer generated report of the account.

Documents linking defendant to this account were also presented in support of the summary judgment motion. Copies of two monthly statements for the Providian account number, dated October 5, 2003, and November 4, 2003, were addressed to Christine Dunn at her home address in Forked River, New Jersey. The October statement reflected a payment of $157 that was received on September 5, 2003. That payment corresponded with a copy of a check dated August 30, 2003, which was also submitted. The check was drawn on the account of Christine A. Dunn and Amir R. Salib at their home address in Forked River, New Jersey, and made payable to Providian Visa in the amount of $157. In the memo portion of the check, the Providian account number was recorded.

The original trial date of December 11, 2007, was adjourned twice so that discovery could be completed. On February 5, 2008, the date of trial, motions for summary judgment and other relief were scheduled to be heard. The court denied defendant's request for a further adjournment but took testimony from defendant and her husband, Amir Salib, to clarify her opposition to the summary judgment motion. Defendant denied any indebtedness or any recollection of such debt. Her defense consisted of argument challenging the adequacy of plaintiff's proofs. Defendant testified that she had no recollection of whether she ever had a Providian credit card. She suggested that the check in question might be a forgery. When asked directly by the court whether she signed the check and sent it to Providian Visa, she stated, "I have no recollection," and that she needed "true certified copies." She refused to state that it was a forgery or to deny that she had signed it. However, she conceded that the name and address on the check were hers; that Amir Salib was her husband; and that the handwritten number on the check matched the number on the account at issue. Mr. Salib also refused to state whether the signature on the check was his wife's, claiming that he could not do so because he was not a handwriting expert.

Therefore, plaintiff presented proof that defendant had a Providian Visa account; that New Century had purchased that account; and that an amount of $7123.31 was due and owing on that account. In opposition, defendant has presented no evidence that creates a genuine issue of material fact. Relying only upon a lack of recollection, her challenges to the sufficiency of plaintiff's evidence are "of an insubstantial nature." Brill, supra, 142 N.J. at 529. Consequently, summary judgment was properly granted.

Defendant's remaining arguments lack sufficient merit to warrant discussion in a written opinion. Rule 2:11-3(e)(1)(E).

Affirmed.

 

Plaintiff does not appeal from the dismissal of her counterclaim or the denial of her motion to compel discovery.

(continued)

(continued)

6

A-3460-07T2

June 4, 2009