CACH OF NJ, LLC v. SUSAN E. BODE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1137-13T3

CACH OF NJ, LLC,

Plaintiff-Respondent,

v.

SUSAN E. BODE,

Defendant-Appellant.

______________________________

December 19, 2014

Submitted December 3, 2014 Decided

Before Judges Kennedy and O'Connor.

On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Essex County, Docket No. DC-0128-13.

David Wisniewski, attorney for appellant.

Fein, Such, Kahn & Shepard, P.C., attorneys for respondent (Brian P. S. McCabe, on the brief).

PER CURIAM

In this debt collection action, defendant appeals from a September 12, 2013 order granting summary judgment to plaintiff in the amount of $4541.87, plus costs. We affirm.

I

In its motion for summary judgment, plaintiff contended defendant opened a credit card account with Wachovia Bank, N.A. in 2006. In 2010, Wells Fargo Bank, N.A. (Wells Fargo) acquired Wachovia Bank, N.A. In April 2011, defendant ceased making payments toward the balance due on her account and, on June 30, 2011, Wells Fargo charged off1 the account. At the time of charge off, the defendant owed Wells Fargo $4766.87.

Plaintiff attached to its motion a copy of a bill of sale evidencing that, on August 26, 2011, Wells Fargo assigned all right, title and interest in defendant's charged off account to CACH, LLC. Plaintiff further provided an "affidavit of account transfer" executed on November 19, 2012 by an authorized agent of CACH, LLC, Rosemary Scurlock, in which she stated that title to defendant's account was transferred to plaintiff, CACH of NJ, LLC on November 1, 2012.

Plaintiff also submitted a certification of proof in support of its motion. The individual who executed the certification2 stated he was an authorized agent of plaintiff and had personal knowledge of the facts set forth in the certification. Among other things, he stated plaintiff purchased defendant's account through an assignment, that he is familiar with the manner and method plaintiff creates and maintains its normal business books and records, and that plaintiff obtained Wells Fargo's computer generated records pertaining to defendant's credit card account. Attached to his certification were copies of fifteen monthly billing issued by Wells Fargo to defendant for the period March 2010 to June 2011. The last monthly billing statement indicated defendant owed Wells Fargo $4766.87.

Plaintiff argued there were no genuine issues of material fact, see Rule 4:46-2(c), and thus was entitled to the entry of summary judgment in the amount of $4541.87.3 The trial court agreed and granted summary judgment in favor of plaintiff and against defendant for the amount plaintiff sought.

II

Defendant's principal arguments on appeal are as follows: (1) plaintiff failed to provide sufficient evidence of a valid assignment of defendant's debt to plaintiff; (2) the affidavits filed in support of plaintiff's motion were not based upon personal knowledge; (3) plaintiff failed to provide an affidavit from Wells Fargo stating the credit card statements attached to plaintiff s motion pertained to defendant, making the statements inadmissible hearsay; (4) the credit card statements did not set forth the interest rate, the transactions and payments made, the charges made against defendant's account, and the closing date of the billing cycles; and (5) plaintiff failed to supply evidence of an agreement between it and defendant that bore defendant's name and the terms and conditions of the agreement.

None of defendant's contentions has merit. We are satisfied from our review of the record plaintiff presented sufficient evidence it owns defendant's credit card debt and that the outstanding debt is $4541.87.

In reviewing a summary judgment decision, we apply the same standard as the trial court. Murray v. Plainfield Rescue Squad, 210 N.J. 581, 584 (2012). Viewing the evidence "in a light most favorable to the non-moving party," we determine "if there is a genuine issue as to any material fact or whether the moving party is entitled to judgment as a matter of law." Rowe v. Mazel Thirty, LLC, 209 N.J. 35, 38, 41 (2012) (citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 529 (1995)). We must determine "whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party in consideration of the applicable evidentiary standard, are sufficient to permit a rational fact-finder 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). We review questions of law de novo, State v. Gandhi, 201 N.J. 161, 176 (2010), and need not accept the trial court's conclusions of law. Davis v. Devereux Found., 209 N.J. 269, 286 (2012).

Use of a credit card creates a contract between the parties according to its terms. See Novack v. Cities Serv. Oil Co., 149 N.J. Super. 542, 548 (Law Div. 1977) (citing City Stores Co. v. Henderson, 156 S.E.2d 818, 823 (Ga. Ct. App. 1967)), aff'd, 159 N.J. Super. 400 (App. Div.), certif. denied, 78 N.J. 396 (1978).

"Rule 6:6-3(a) provides a guide to the proofs necessary to grant summary judgment in a credit card collection matter." LVNV Funding, L.L.C. v. Colvell, 421 N.J. Super. 1, 6 (App. Div. 2011). Thus, "[t]o collect on a revolving credit card debt, [plaintiff] is required to provide the transactions for which payment has not been made, any payments that have been made, the annual percentage and finance charge percentage rates and the billing cycle information." Id. at 7-8 (citing R. 6:6-3(a)).

Here, the final periodic statement for the last billing cycle sent to defendant sets forth the current and previous balance; all transactions and credits; accrued fees and finance charges; the annual percentage and finance charge percentage rates; and all billing cycle information. See Rule 6:6-3(a). Further, there is no evidence defendant ever contested any charge or fee on her credit card.

The credit card statements did not constitute inadmissible hearsay; they were properly considered as business records under N.J.R.E. 803(c)(6). In addition, there is no requirement a foundation witness possess any personal knowledge of the act or event recorded in a business record. State v. Martorelli, 136 N.J. Super. 449, 453 (App. Div. 1975), certif. denied, 69 N.J. 445 (1976). In fact, documents can be admitted "'as business records even though they are the records of a business entity other than one of the parties, and even though the foundation for their receipt is laid by a witness who is not an employee of the entity that owns and prepared them.'" Hahnemann University Hosp. v. Dudnick, 292 N.J. Super. 11, 17 (App. Div. 1996) (quoting Saks Int'l, Inc. v. M/V "Export Champion", 817 F.2d 1011, 1013 (2d Cir. 1987)).

Plaintiff provided sufficient evidence of an assignment of defendant's debt to plaintiff. There was no assignment from Wachovia and Wells Fargo, as the latter acquired the former. See Garden State Bank v. Graef, 341 N.J. Super. 241, 245-46 (App. Div. 2001). The bill of sale, however, shows Wells Fargo sold and assigned defendants charged off account to plaintiff's parent company, CACH, LLC. The bill of sale sufficiently described the subject matter of the assignment and is evidence of the transferor's intent. See K. Woodmere Assocs., L.P. v. Menk Corp., 316 N.J. Super. 306, 314 (App. Div. 1998). The affidavit of account transfer memorialized the transfer of defendant's account from CACH, LLC to its affiliate and wholly-owned subsidiary, plaintiff CACH of NJ, LLC. The bill of sale and the affidavit of account transfer provide proof of plaintiff's ownership of defendant's account.

As for defendants claim the authors of the certification and affidavit submitted in support of plaintiff s motion lacked the requisite personal knowledge, as addressed above, these individuals were not required to have personal knowledge of the monthly billing statements. Our review of the remaining contents of the affidavit and certification indicates these individuals did not lack sufficient knowledge to make their respective statements. Further, defendant has provided no evidence to suggest plaintiff's proofs, including the subject certification and affidavit, were unreliable.

Finally, plaintiff was not required to present the cardholder agreement between her and Wells Fargo because the terms of the agreement were not in dispute. Plaintiff's claim is for only the balance due on the periodic statement of West Fargo's last billing cycle. See Chase Bank U.S., N.A. v. Staffenberg, 419 N.J. Super. 386, 388 n.1 (App. Div. 2011).

To the extent we have not addressed any other contentions raised by defendant, we conclude they lack sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).

Affirmed.

1 A charge off is the declaration by a creditor that a debt is uncollectable.

2 The name of the person who signed the certification is not legible on the photocopy provided to the court.

3 The amount plaintiff sought was less than the $4766.87 Wells Fargo claimed in the last monthly billing statement issued to defendant because, after receiving the last statement, defendant paid $225 toward the balance due. Therefore, plaintiff claimed it was owed $4541.87.