PALISADES COLLECTION, L.L.C v. WINNIFRED OLOSUNDE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1704-07T11704-07T1

PALISADES COLLECTION, L.L.C.,

Plaintiff-Respondent,

v.

WINNIFRED OLOSUNDE,

Defendant-Appellant.

_______________________________

 

Argued: November 6, 2008 - Decided

Before Judges Parrillo, Lihotz and Messano.

On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Mercer County, Docket No. DC-002234-07.

Winnifred Olosunde, appellant, argued the cause pro se.

Lawrence J. McDermott, Jr. argued the cause for respondent (Pressler & Pressler, L.L.P., attorneys; Mr. McDermott, on the brief).

PER CURIAM

Defendant Winnifred Olosunde appeals from summary judgment entered by the Special Civil Part, awarding plaintiff, Palisades Collection, L.L.C., $1,255.58, plus costs, on an open book account for regional and long distance toll charges alleged to originate from defendant's telephone number from February 23, 2003 to June 23, 2003. The obligation was due to Verizon New Jersey, Inc. (Verizon). Plaintiff purchased the obligation pursuant to a written assignment agreement, a copy of which is not provided in the record. Defendant opposed plaintiff's motion and cross-moved for dismissal of the complaint.

In her papers, defendant acknowledged the billing statements attached to plaintiff's motion reflected her address and telephone number. However, she adamantly contested she incurred the charges, stating she neither executed a contract for service with Verizon nor received the bills attached to plaintiff's motion, and, finally, she denied owning a cell phone. Defendant's cross-motion argued plaintiff had not provided sufficient proofs to support its claim of debt, warranting dismissal of its complaint.

The judge granted plaintiff's motion and, presumably, denied defendant's. Defendant's brief suggests the motions were determined without oral argument. Defendant's subsequently filed motion for reconsideration was also denied.

On appeal, defendant argues "plaintiff has not provided verifiable documents to prove the credibility of [its] claim." We understand this argument challenges the entry of summary judgment because material facts regarding the underlying debt are disputed. Following our review of the record and consideration of the arguments of the parties and applicable law, we agree and reverse.

On review of a grant of summary judgment, we apply the same standard as the trial court, Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998), that is, we sift through the evidential material in the record to determine whether a genuine issue of material fact is disputed. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). If no factual dispute exists and the moving party is entitled to judgment as a matter of law, summary judgment is appropriate.

A party can defeat a summary judgment motion when he or she presents a credibility issue with evidential materials that could permit a factfinder to resolve the dispute in favor of the non-moving party. D'Amato v. D'Amato, 305 N.J. Super. 109, 114 (App. Div. 1997). It is only when a single unavoidable resolution of the dispute exists, notwithstanding possible credibility concerns, that summary judgment may be appropriate. Liberty Mutual Ins. Corp. v. Amoroso, P.A., 189 N.J. 436, 450 (2007) (citing Brill, supra, 142 N.J. at 520). Our review of this record reveals disputed material facts, making the entry of summary judgment mistaken.

Attached to plaintiff's summary judgment motion are copies of the billing statements supporting the claimed debt. The first bill issued February 28, 2003, includes references to a transfer of the final charges from defendant's "former telephone service" as of February 25, 2003. The toll charges transferred totaled $935.22. The statement, dated April 23, 2003, listed an amount due of $1,189.70, as $254.48 in additional charges had been incurred. The last billing statement attached to support plaintiff's request was dated June 23, 2003 and totaled the amount sought, $1,255.58, as $65.88 in new charges were added. The billing statements in the record do not include a list of itemized calls.

In her Answer to plaintiff's complaint, opposition to plaintiff's summary judgment motion and merits brief on appeal, defendant challenges the sum appearing on the February 28, 2003 statement. Verizon's records show the account was opened on February 25, 2003. Defendant argues she never had an outstanding account balance, never contracted with Verizon and does not have a cell phone, as suggested by plaintiff's exhibit, which lists on the claim information transferred from magnetic tape that the account relates to a cell phone. Defendant's interrogatory answers state she has had the same telephone number for the past six years and it is a land-line.

Moreover, in the appendix, perhaps attached as an exhibit to defendant's opposition to summary judgment, is a copy of a Verizon telephone billing statement in the same format as those proffered by plaintiff, dated April 23, 2003. It too contains defendant's telephone number and address, just as those offered by plaintiff. However, the account number on this document differs from plaintiff's exhibits, inasmuch as the last six characters of defendant's bill are "427-43Y," while the last six characters of the bills produced by plaintiff are "426-69Y." Defendant's document shows a credit balance of sixty-two cents, as the balance billed on February 28, 2003 of $351.38 was fully satisfied with payment of $352.

Clearly, this document, coupled with defendant's averments, presents a significant dispute, challenging the underlying material facts proffered by plaintiff to sustain its cause of action. In light of the competing proofs, the trial court must conduct a hearing to resolve: (1) why there are two bills for the same telephone number--one with a credit balance and one with overdue balance; (2) why Verizon suggests the open account relates to a cell phone account when defendant maintains she never owned a cell phone; and (3) where the initial $935.22 balance as of February 25, 2003 originated.

Defendant also challenges plaintiff's standing. Although a one paragraph general bill of sale executed by Verizon dated November 9, 2006 was produced, it does not specifically reference defendant's alleged obligation. The bill of sale references an assignment, which has not been presented. Because plaintiff must prove the validity of its assignment at trial, Triffin v. Johnson, 359 N.J. Super. 543, 547 (App. Div. 2003), this issue remains for the trial court's review.

Reversed and remanded for trial.

 

We are not provided with an order disposing of defendant's motion and the record on appeal contains no transcript.

(continued)

(continued)

6

A-1704-07T1

December 17, 2008