DISCOVER BANK v. SHABANA K. WHALA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2421-06T32421-06T3

DISCOVER BANK,

Plaintiff-Respondent,

v.

SHABANA K. WHALA,

Defendant-Appellant.

______________________________________________

 

Submitted October 10, 2007 - Decided October 25, 2007

Before Judges Fuentes and Chambers.

On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Hudson County, DC-012601-05.

Shabana K. Whala appellant pro se.

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

PER CURIAM

Defendant, Shabana K. Whala, appeals from a judgment entered against her in the amount of $5,542.81 for her credit card debt with plaintiff Discovery Bank. The debt is based on a transfer in the amount of $4,500 from her account to her husband's account with Bank of America. She contends that the transfer was not authorized and did not occur. However, plaintiff presented testimony and documents proving the debt which the trial court found credible. This appeal is limited to the denial of defendant's motion for a new trial, based on newly discovered evidence. Since the newly discovered evidence confirms rather than undermines the decision reached by the trial court and it could have been obtained by defendant for the trial, we affirm.

Defendant had applied for a Discover Platinum credit card from plaintiff. In her signed credit card application, she had requested that the sum of $9,000 be transferred to her husband's Bank of America account. Since plaintiff only qualified for credit in the sum of $4,500, that sum was transferred to her husband's Bank of America account. Thereafter, defendant made only one payment on the credit card; plaintiff brought this law suit for the balance due. Defendant claimed that the transfer of the $4,500 had not been authorized and that the funds were not received by the Bank of America.

At the trial held on November 29, 2005, plaintiff had one of its staff associates who works with its records and bookkeeping and who had been with plaintiff for nineteen years testify. She explained that defendant was approved for only $4,500 of credit, and, as a result, that sum was wire transferred to the Bank of America account pursuant to defendant's request. Plaintiff verified with Bank of America that the funds had arrived. A single payment of $484 was made on the account by defendant on October 15, 2004. Defendant never disputed the balance due with plaintiff until this litigation.

Defendant's husband testified that when he discovered that the $4,500 had been transferred to his Bank of America account he called plaintiff and objected. Since the $9,000 originally requested could not be transferred, his wife and he did not want any transfer to take place. He claims plaintiff's representative told him the transfer would be undone, and that Bank of America representatives indicated that they would return the money to plaintiff. However, he had no documentation to show that this had ever happened. He appeared to claim that he did not receive the money, that is, that the funds were not in his Bank of America account.

The trial court found that the account application signed by defendant authorized the transfer of the funds to her husband's account with Bank of America. Finding plaintiff's witness credible, he found that the funds had indeed been transferred to the Bank of America account. He noted that defendant made one payment which indicates that she had received the funds. Defendant presented no documents indicating that she had, prior to the litigation, protested the transfer or claimed that she had not received the funds. Judgment was entered against defendant in the sum of $5,542.81, representing the balance due on the account plus interest.

The findings by the trial judge in a non jury case will be sustained on appeal provided they are supported by "adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 483-84 (1974). The trial court, which hears the testimony and has an opportunity to observe the witnesses, is in a better position than the appellate court to evaluate their credibility. Cesare v. Cesare, 154 N.J. 394, 412 (1998). The findings of fact and legal conclusions of the trial judge will not be overturned unless "they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms, supra, 65 N.J. at 484.

Here the trial judge provided a full oral opinion, thoroughly analyzing the evidence presented and making his findings on the credibility of the witnesses. Taken together, the testimony of the plaintiff's witness whom the court found to be credible, the records provided by plaintiff indicating that the funds were transferred, the defense's concession that she signed the account application requesting the transfer of funds into her husband's account, and the partial payment on the account made by defendant provide ample evidence to support the findings of the trial judge.

After the judgment was entered, defendant moved to set it aside on the basis that she had newly discovered evidence, namely a Bank of America statement for her husband's account. The motion was denied by order dated October 26, 2006, which in pertinent part, denied defendant's motion for relief from the judgment pursuant to R. 4:50-1. The Appellate Division, by order dated February 8, 2007, has limited this appeal to the trial court's denial of defendant's motion for relief from the judgment.

The court rules allow a judgment to be set aside based on "newly discovered evidence which would probably alter the judgment or order and which by due diligence could not have been discovered in time to move for a new trial under R. 4:49." R. 4:50-1(b). Defendant claims that the Bank of America statement for her husband's account is newly discovered evidence requiring that the judgment be set aside. The statement indicates that $4,500 had been electronically transferred to her husband's Bank of America account. This is not newly discovered evidence that helps defendant's case. Rather it provides further evidence in support of the judgment. The Bank of America statement confirms that plaintiff had transferred the money to defendant's husband's account per the instructions on her account application. Further, with due diligence, defendant could have obtained this statement for the trial. The motion for a new trial was properly denied.

The balance of the arguments raised in defendant's brief and reply brief are beyond the scope of this appeal or "without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(1)(E).

Affirmed.

 

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A-2421-06T3

October 25, 2007