COURT FIA CARD SERVICES, N.A v. PRINCE F. KESSIE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4814-09T3

FIA CARD SERVICES, N.A.,

Plaintiff-Respondent,

v.

PRINCE F. KESSIE,

Defendant-Appellant.

___________________________________

April 25, 2011

Submitted March 9, 2011 - Decided

Before Judges Fuentes and Ashrafi.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-6958-09.

Prince F. Kessie, appellant pro se.

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

PER CURIAM

Defendant Prince Kessie appeals from an order of the Law Division granting summary judgment against him for an alleged credit card debt in the amount of $19,214.04 plus costs. We reverse and remand for reinstatement of the pleadings.

Plaintiff FIA Card Services, N.A., filed a simple complaint in the Law Division stating that there was due from defendant the sum of $19,214.04 plus accruing interest and costs on a credit card account ending in the number 9802. Defendant filed an answer pro se denying the allegation and raising several affirmative defenses that are not relevant to this appeal. After obtaining responses from defendant to interrogatories and requests for admissions, plaintiff moved for summary judgment. Defendant filed opposition. Neither party requested oral argument.

One day before the return date of the motion, at about 4:00 p.m., court staff called the parties to notify them that the court desired to hear oral argument the next morning. Defendant did not answer the telephone call, and court staff left a message on an answering machine. The next morning, only the attorney for plaintiff appeared for oral argument. At 9:15 a.m., the court stated it would proceed in defendant's absence and heard the motion. Following a brief colloquy with counsel for plaintiff, the court stated it saw no disputed issues of fact in the summary judgment submissions and granted plaintiff's motion as presented. Defendant filed a timely notice of appeal.

In reviewing a grant of summary judgment, we apply the same standard under Rule 4:46-2(c) that governs the trial court. See Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007). We must "consider 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).

Initially, we address the court's decision to hear oral argument in defendant's absence. Rule 1:6-2(d) authorizes the court to direct that oral argument be held for a civil motion even if neither party has requested it. But inherent in the rule is that the court will give adequate notice of the scheduled oral argument so that the parties can attend and participate. Here, the court attempted late contact with the parties but did not confirm that defendant had received the message. The court proceeded to hear from plaintiff's attorney alone without determining whether defendant had voluntarily chosen not to attend. When the court learned that staff had not communicated directly with defendant, it should have adjourned the argument, attempted to contact defendant again, or dispensed with oral argument entirely. If defendant had been reached that morning, he may have been able to participate by telephone, or he may have come to the courthouse. He may also have provided valid reason for adjourning the motion. As it occurred, defendant was not given a fair opportunity to be heard in his opposition to plaintiff's summary judgment motion.

Defendant's lack of participation at oral argument affected the Law Division's understanding of his opposition papers. At the argument, the court expressed its belief that defendant had conceded the debt because he had attached some of the credit card billing statements to his opposition. The court misunderstood defendant's opposition as contending that "it's not [plaintiff] FIA, it's somebody else I owe the money to." In fact, defendant's answer to the complaint, discovery responses, and opposition to the summary judgment motion all stated uniformly that plaintiff was suing on a credit card account number that was not defendant's account.

Defendant accurately argued that the 9802 account number did not match the credit card account number on the statements in his name plaintiff had submitted in support of summary judgment. The account statements all specifically indicated an account number ending in 3411. Defendant opposed summary judgment on the ground that he owed no debt on account number 9802 as stated in the complaint, and in plaintiff's Statement of Material Facts pursuant to Rule 4:46-2(a) and the certification of plaintiff's representative filed in support of summary judgment.

Rule 4:46-2(c) provides that summary judgment shall be granted when the pleadings, discovery, and affidavits demonstrate that there is no genuine issue of material fact as to the matter challenged and that the moving party is therefore entitled to judgment as a matter of law. The court must "sift" and "evaluate" the evidence and consider whether the facts relied upon are supported by admissible evidence in the record or by affidavits or certifications made on personal knowledge. See Brill, supra, 142 N.J. at 536; R. 1:6-6. When the moving party makes the requisite showing, it is incumbent upon the party opposing summary judgment to come forward with competent proofs demonstrating a genuine issue of disputed fact that must be resolved at trial. See Triffin v. Am. Int l Group, Inc., 372 N.J. Super. 517, 523-24 (App. Div. 2004); Brae Asset Fund, L.P. v. Newman, 327 N.J. Super. 129, 134 (App. Div. 1999).

Here, plaintiff did not make the requisite showing that it was entitled to judgment. Its claim did not coincide with the supporting documents establishing the credit card account on which defendant allegedly owed a debt. Plaintiff states that defendant did not submit a certification in opposition to its motion, but defendant was not alleging different facts from those submitted by plaintiff. He was contesting summary judgment on the ground that plaintiff's proofs did not establish the debt claimed. He was correct in that argument.

Plaintiff argues on appeal that the two accounts were the same, and that the 9802 number can actually be found on the credit card statements. The number plaintiff references, however, is contained in a much longer series of numerals appearing as a coded number. The statements specifically identify the account number as the 3411 number, and nothing in plaintiff's certification submitted under Rule 1:6-6 addresses the discrepancy. Plaintiff has provided no explanation through admissible evidence for the use of a different account number in its complaint and summary judgment submissions. Furthermore, we agree with defendant that his responses to interrogatories and requests for admissions did not admit the debt claimed by plaintiff.

Because plaintiff's proofs did not establish the debt specifically claimed, and the court improperly neglected to consider defendant's opposition, we reverse and remand to the Law Division to reinstate the case on its active docket.

Reversed and remanded.