HSBC Bank Nev., N.A. v Higgins
Annotate this CaseDecided on July 10, 2009
Mount Vernon City Ct
HSBC Bank Nevada, N.A., Plaintiff,
against
Edna Higgins a/k/a Edna Winstead, Defendant.
2056-07
Leandre M. John, Esq. Cohen & Slamowitz, LLP
Attorneys for Plaintiff
199 Crossways Park Drive
Woodbury, New York 11797
Glen A. Kurtis, Esq.
Attorney for Defendant
175 Main Street, Suite #614
White Plains, New York
Adam Seiden, J.
In this action to recover the balance under a credit card agreement, the plaintiff moves for summary judgment. The defendant opposes the motion.
On this motion, plaintiff has submitted the affidavit of Charmain Hopper, an attorney liaison in the Recovery Division of HBSC BANK NEVADA, N.A.. Ms. Hopper attests that as part of her duties, she has personal knowledge with the manner and method by which plaintiff created and maintains its books and records in the regular course of business, including computer records of credit card accounts, such as the credit card account of Defendant. She further states that plaintiff extended credit to defendant under account number xxxx to pay for various goods and services and that defendant used the credit card to purchase goods and services. Ms. Hopper contends that a copy of the agreement in effect at the time of defendant's default is attached to the motion as Exhibit A. Ms. Hopper further affirms that plaintiff mailed statements to the defendant advising defendant of the delinquency under the agreement and demanding payment. A copy of defendant's statement of account at the time of charge off by plaintiff is annexed as Exhibit B. Ms. Hopper contends that defendant never disputed the validity of the balance owed or notified plaintiff of any recognizable defenses or counterclaims to the balance due an owing, and, as such, an account stated was created. Finally, Ms. Hopper states that $2,144.00, plus interest at the rate of 9% from March 23, 2007 remains due and owing from defendant.
In opposition to the motion, Defendant Higgins states that plaintiff sent her information about extending credit to her and opening an account. She admits making several charges on the account, but strongly disputes the amount that the plaintiff claims she owes them. Defendant also states that she disputes the interest rate that they charged her, as she never agreed to the rates charged and never received a copy of any agreement. Defendant contends that her payments were not properly credited, as plaintiff, on its own, without giving notice to the defendant, raised the interest rates. She argues that a large portion of the payments that were made went to interest and not to the principal balance. Ms. Higgins also states that plaintiff has failed to provide her attorney with any discovery as requested. [*2]
Defendant's counsel, Glen Kurtis, argues that an Answer was interposed requesting several items, including a verified bill of particulars, discovery reply and a deposition of plaintiff. Counsel states that plaintiff has failed to provide a bill of particulars, a response to the Demand for Discovery and Inspection and that plaintiff has not yet appeared for deposition. Counsel argues that without discovery, defendant cannot meaningfully respond to the motion.
It is well settled that in order to obtain summary judgment, the movant must establish its cause of action sufficiently to warrant a court's directing judgment in its favor as a matter of law. The party opposing the motion must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which the opposing claim rests (Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966 (1988); Zuckerman v City of New York, 49 NY2d 557 (1980)).
Under the circumstances here, the plaintiff's failure to respond to discovery demands is no bar to the court's determination of the motion (CPLR § 3214 (b)). Nevertheless, the Court finds that plaintiff has not only failed to establish its cause of action sufficiently to warrant judgment in its favor, but has failed to even submit evidence necessary to establish a prima facie case (see Citibank, N.A. v Martin, 11 Misc 3d 219 (Civ. Ct, NY Co. 2005)). Here, plaintiff relies on bolierplate credit card terms, conclusory statements of account, and an affidavit executed by one of its employees to support its claim. The statements submitted with the motion reflect the outstanding balance and finance charges but do not reflect any purchases made by the defendant. Further, the defendant disputes the interest rate and the amount due and owing. As plaintiff failed to demonstrate that the defendant actually incurred any debts, the motion for summary judgment must fail (Palisades Collection, LLC v Gonzalez, 10 Misc 3d 1058A (Civ Ct. New York 2005).
Motion for summary judgment is denied.
This constitutes the Decision and Order of the Court.
The Court considered the following papers: Notice of Motion, dated July 29, 2008; Affidavit
in Support; Affirmation in Support; Exh. A-E. Affirmation in Opposition, dated August 22,
2008; Affidavit in Opposition; Exh. A.
Dated:July 10, 2009
Mount Vernon, New York
______________________________
HON. ADAM SEIDEN
Associate City Judge of Mount Vernon
To:
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