TANYA FREEMAN v. WACHOVIA BANK

(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NOT FOR PUBLICATION WITHOUT THE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-5290-07T25290-07T2

TANYA FREEMAN,

Plaintiff-Appellant,

v.

WACHOVIA BANK,

Defendant-Respondent.

_____________________________________________________________

 

Submitted March 17, 2009 - Decided

Before Judges Skillman and Graves.

On appeal from Superior Court of New Jersey,

Law Division, Hudson County, Docket No.

DC-0039-08.

Law Offices of Brian C. Freeman, LLC,

attorneys for appellant (Brian C. Freeman,

on the brief).

Greenbaum, Rowe, Smith, & Davis, LLP,

attorneys for respondent (Jodi L. Rosenberg,

on the brief).

PER CURIAM

Plaintiff Tanya Freeman appeals from an order entered on June 17, 2008, following a bench trial, which dismissed her Special Civil Part complaint. We reverse and remand for further proceedings consistent with this opinion.

In her complaint, plaintiff alleged that she used her Wachovia debit card in January 2007, to pay a deposit in the amount of $800 to Bergen Limo for her son's prom on May 24, 2007. However, the limousine that arrived to transport the children to the prom on May 24, 2007, was not acceptable to plaintiff because it was a hot day and the limousine was not air conditioned. The Bergen Limo driver provided approximately one hour of service by driving the children from Bayonne to Staten Island where the prom was held. But plaintiff hired another limousine company to transport the children after the prom was over.

According to plaintiff, the Bergen Limo driver never asked for any money, and plaintiff never authorized Bergen Limo to make any additional charges on her Wachovia debit card. Nevertheless, on May 29, 2007, Bergen Limo charged $757.50 to the Wachovia debit card that plaintiff used when she made the initial payment of $800. About a week later, when plaintiff learned of the debit in the amount of $757.50, she immediately disputed the charge. Plaintiff also spoke with Bergen Limo:

I called Bergen Limo first and asked them what happened, and they said well, we wasted a whole night, you know, the driver didn't have another job so we're charging you. And I said to . . . this guy, he only told me his name is Mike, he wouldn't give me his last name, so Mike says well, you're responsible for the balance. And I said well . . . I never gave you my information, and he said well, we record everybody's information when they come in. So when the manager . . . went into the office to run my card she also had recorded, without my knowledge, my debit card number, and he said and we do that with everyone in case problems arise, and so they then went and debited, used my card information. I never called in and gave them my card, I never authorized the second transaction. That's what I explained to Wachovia. Wachovia gave me what they call a provisional credit and they told me they would investigate the matter.

On June 14, 2007, Wachovia provisionally credited plaintiff's account while the bank researched the disputed transaction. However in a subsequent letter dated September 19, 2007, Wachovia advised plaintiff as follows:

After researching your dispute further, we have determined that no error occurred to your account because the merchant was willing and able to provide the service. You decided to cancel after the merchant arrived therefore resulting in no refund being due. It will now be necessary to redebit your account five business days from the date of this notification.

Thus, even though Wachovia's investigation failed to ascertain if Bergen Limo was authorized to charge the sum of $757.50 to plaintiff's debit card, Wachovia removed the funds from plaintiff's checking account.

At trial, plaintiff testified that the second charge by Bergen Limo was a fraudulent transaction:

It would be the same analogy of somebody stealing my credit card and going on a shopping spree. . . . Wachovia wouldn't tell me to then go to the mall and sue everybody in that mall. Wachovia would say, oh, Mrs. Freeman, these were all unauthorized charges, we'll give them back to you. It's the same as them stealing my card. I never gave it to them.

In addition, plaintiff testified she fully complied with paragraph nine of the Wachovia Debit Card Agreement, which describes "Wachovia's Zero Liability policy":

Under Wachovia's Zero Liability policy, you will not be liable for any unauthorized purchases made through the Visa/Interlink network at merchants, including those transacted on the Internet if you contact us within sixty (60) days after the monthly account statement on which the transactions occurred was mailed to you.

You agree to assist us in determining the facts, circumstances and other pertinent information relating to any loss, theft or possible unauthorized use of your Card and to comply with such procedures as we may require in connection with our investigation. If you authorize someone to use your Card, you are responsible for all transactions they initiate using your Card until you notify us that such transfers are no longer authorized.

We recognize, of course, that findings of fact by a trial court "are considered binding on appeal when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). In this case, however, plaintiff was the only witness to testify, and she stated in no uncertain terms that she only authorized the initial $800 payment to Bergen Limo in January 2007. Under these circumstances, the record does not support the trial court's finding that the second payment to Bergen Limo in the amount of $757.50 was authorized.

Reversed and remanded for further proceedings consistent with this opinion.

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A-5290-07T2

June 4, 2009