MBNA AMERICA BANK, N.A v. PAUL COHEN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5484-07T25484-07T2

MBNA AMERICA BANK, N.A.,

Plaintiff-Respondent,

v.

PAUL COHEN,

Defendant-Appellant.

___________________________________________________

 

Submitted March 23, 2010 - Decided

Before Judges Messano and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-1585-06.

Philip D. Stern & Associates, LLC, attorneys for appellant (Mr. Stern, on the brief).

Maurice & Needleman, P.C., attorneys for respondent (Donald S. Maurice, Jr. and Thomas R. Dominczyk, on the brief).

PER CURIAM

Plaintiff MBNA America Bank, N.A. (MBNA), commenced four suits against defendant Paul Cohen in the Law Division seeking to confirm previously-entered arbitration awards. In Docket No. DC-3056-06, filed in the Special Civil Part, plaintiff sought confirmation of an arbitration award previously entered. Defendant answered the complaint, and asserted, among other defenses, that there was no valid agreement to arbitrate the dispute. The parties each sought summary judgment; plaintiff prevailed and judgment was entered in its favor. Defendant sought reconsideration, but that application was stayed pending eventual consolidation of all four lawsuits.

In Docket Nos. L-1585-06, L-1713-06, L-1754-06, plaintiff also sought confirmation of three other arbitration awards previously entered on the same day as the first. Defendant failed to answer all three complaints. Plaintiff obtained final judgment by default in L-1585-06, and defendant's motion to vacate was initially denied. However, in the other two suits, although default judgments had been entered, defendant successfully moved to vacate those judgments and filed answers in both cases. Among other defenses, defendant asserted that there was no agreement to arbitrate. Defendant sought reconsideration of the denial of his motion to vacate the default judgment entered in Docket No. L-1585-06; that motion was stayed, as were plaintiff's motions to reconsider the vacation of the default judgments on the two matters. All four matters were consolidated by order, and a single judge considered all the motions.

Defendant filed a complaint in the federal district court alleging various statutory violations and sought removal of the four pending matters. The federal district court remanded the matters, concluding that supplementary jurisdiction did not attach. Plaintiff then moved for summary judgment on Docket Nos. L-1713-06 and L-1754-06, and filed opposition to defendant's requested reconsideration in the other two matters. Defendant opposed those motions.

In a short written opinion that accompanied his order, the judge concluded from the motion record that defendant had written a series of checks for cash advances on four "distinct accounts" between October 2002 and December 2004. The judge further determined that "[d]efendant's cardmember agreement specifie[d] that all disputes arising with [sic] the defendant's use of the credit card w[ould] be submitted to binding arbitration . . . ." The judge observed that the "arbitration clause [wa]s agreed to when the consumer beg[an] using the credit card," and further noted that the account agreement clearly advised defendant "in large font print," that he was agreeing that his "claims c[ould] not be litigated in court." Finding that defendant "failed to raise factual defenses" to plaintiff's claims in all four matters, the judge denied defendant's motion to vacate the judgments previously entered in DC-3056-06 and L-1585-06, and awarded plaintiff summary judgment in the other two cases. This appeal followed.

Defendant raises the following points on appeal:

POINT I

ON CROSS-MOTIONS FOR SUMMARY JUDGMENT, MBNA MUST PRESENT AN EVIDENTIARY RECORD SUFFICIENT TO SUSTAIN ITS BURDEN OF PERSUASION ON ITS CLAIM. MBNA FAILED TO SUBMIT ANY ADMISSIBLE EVIDENCE THAT THE PARTIES CONTRACTED TO ARBITRATE DISPUTES. THEREFORE, SUMMARY JUDGMENT SHOULD HAVE BEEN ENTERED IN FAVOR OF [DEFENDANT].

POINT II

SERVICE OF PROCESS WAS INEFFECTIVELY ATTEMPTED ON AN INDIVIDUAL WHO HAPPENED TO BE IN DEFENDANT'S HOME BUT WAS NOT A MEMBER OF DEFENDANT'S HOUSEHOLD.

POINT III

THE TRIAL COURT'S DENIAL OF DEPOSITIONS AND REFUSAL TO COMPEL MBNA TO RESPOND TO INTERROGATORIES WHICH ADDRESSED THE CORE ISSUES IN DISPUTE W[ERE] AN ABUSE OF DISCRETION. IF THIS CASE IS REMANDED, MBNA SHOULD BE COMPELLED TO FULLY RESPOND TO ALL INTERROGATORIES.

We have considered these arguments in light of the record and applicable legal standards. We affirm.

Defendant argues that all of plaintiff's summary judgment motions lacked "materials which would be admissible at trial sufficient to sustain its burden of proof on all elements of its cause of action." He contends that the various certifications from plaintiff's counsel, and its various employees and officers, demonstrated a lack of personal knowledge about the accounts, or were otherwise deficient. As a result, defendant contends that plaintiff failed to prove as an undisputed fact an essential part of its summary action to confirm the various arbitration awards - the existence of a valid agreement to arbitrate any disputes that might arise under the accounts.

When reviewing a grant of "summary judgment, we [employ] the same standard[s] . . . [used] by the motion judge." Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230 (App. Div.), certif. denied, 189 N.J. 104 (2006). We first determine whether the moving party has demonstrated there were no genuine disputes as to material facts, id. at 230; "[w]e then [decide] whether the motion judge's application of the law was correct." Id. at 231. We accord all favorable inferences in the motion record to the party opposing the motion. R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). "[W]e owe no deference to the" motion judge's conclusions on issues of law. Atl. Mut. Ins. Co., supra, 387 N.J. Super. at 231.

Plaintiff's motions were accompanied by certifications from its counsel and its employees and officers that referenced various documents, including defendant's signed application for credit, his monthly statements sent to his home address, some of which reflected payments made on the accounts, and the arbitration agreement contained in the credit card agreement. Plaintiff concedes that some of the certifications were "not the most detailed." However, we disagree with defendant's assertion that plaintiff needed to meet the standards of admissibility that might be imposed at trial in order for the judge to have considered these documents for the purposes of the motion. Defendant cites no authority for this proposition.

Defendant argues that the various individuals who furnished certifications lacked the requisite personal knowledge of the documents. Perhaps that is true as to plaintiff's counsel, but it is only a bald assertion regarding the others who included plaintiff's assistant vice-president and accounts manager. In Garden State Bank v. Graef, 341 N.J. Super. 241, 244-45 (App. Div. 2001), we rejected a similar claim, noting that the plaintiff's affiant's position as a credit manager imbued him with sufficient knowledge to adequately authenticate the documents at issue as business records. See N.J.R.E. 803(c)(6). We further observed, the records "[we]re admissible because they 'appear[ed] perfectly regular on [their] face and as having been issued in the regular course of business prior to the inception of any controversy between the parties.'" Garden State Bank, supra, 341 N.J. Super. at 246 (quoting Mahoney v. Minsky, 39 N.J. 208, 213 (1963)).

In all the motions and opposition filed, defendant raised no factual contest to any of the documents in any of the suits, but for a vague claim that he could not recall ever seeing them before the litigation. As to the signed application, he acknowledged it appeared to be his signature, but he could not recollect signing it. We noted in Garden State Bank, supra, that, as in this case, "[d]efendant[] submit[s] only empty allegations in support of the inadmissibility of these records and ha[s] failed to provide specific evidence . . . [demonstrating] the unreliability of the . . . records." 341 N.J. Super. at 246. In short, we find defendant's evidential argument unavailing.

Defendant next contends that the evidence, even if admissible, was insufficient to demonstrate as a matter of law that there was a valid agreement to arbitrate disputes concerning the credit card. We disagree.

In each instance, plaintiff's claim was that defendant accepted the terms of the credit card agreement, including its arbitration provisions, by his use of the card and credit line. It has long been recognized that in such situations, use of a credit card signifies acceptance of the terms of the credit agreement. Novack v. Cities Serv. Oil Co., 149 N.J. Super. 542, 547-48 (Law Div. 1977), aff'd, 159 N.J. Super. 400 (App. Div.), certif. denied, 78 N.J. 396 (1978).

We reject defendant's reliance upon the Law Division's decision in Discover Bank v. Shea, 362 N.J. Super. 200 (Law Div. 2001), appeal dismissed, 362 N.J. Super. 90 (App. Div. 2003). In Shea, there was a modification to the original agreement that compelled arbitration, and there was no explicit notice of the change. Id. at 202-03. Instead, a "bill stuffer" notice was provided at some point, and the Law Division concluded that such evidence was inadequate to demonstrate that the consumer had agreed to arbitrate disputes through modification of the original agreement. Id. at 205-06. Here, there was no evidence that the agreement was not in place at the time defendant used his line of credit, or that it modified some prior account agreement. The certifications filed by plaintiff were certainly to the contrary.

Assessing the motion record as a whole, there were no genuine disputed material facts so as to defeat plaintiff's summary action to confirm the arbitration awards previously entered. See N.J.S.A. 2A:23B-22 (an action seeking to enforce a prior arbitration award is a summary proceeding and "the court shall issue a confirming order unless the award is modified or corrected pursuant to [N.J.S.A. 2A:23B-20 or -24] or is vacated pursuant to [N.J.S.A. 2A:23B-23]"). In sum, we reject defendant's claim that summary judgment was improvidently granted.

Defendant next argues that the default judgment entered in Docket No. L-1585-06 should be vacated because of improper service of the complaint. The Sheriff's affidavit of service indicated that service was effectuated at defendant's home address by leaving a copy of the summons and complaint with someone named "Shelley Joyce," "a household member over 14 yrs[.] of age residing therein." In the certification that accompanied his motion to vacate, defendant claimed that "Joyce [wa]s not a member of [his] household," but rather, "happened to be working in my house on April 16, 2006 as a domestic worker."

Rule 4:4-4(a) provides that

The primary method of obtaining in personam jurisdiction over a defendant in this State is by causing the summons and complaint to be personally served . . . as follows:

(1) Upon a competent individual of the age of 14 or over, by delivering a copy of the summons and complaint to the individual personally, or by leaving a copy thereof at the individual's dwelling place or usual place of abode with a competent member of the household of the age of 14 or over then residing therein . . . .

Assuming arguendo the truth of defendant's claim, we still conclude that although the service may not have complied with the technical requirements of the Rule, it was nonetheless sufficient to afford him due process and the ability to defend against plaintiff's claims. See Rosa v. Araujo, 260 N.J. Super. 458, 463 (App. Div. 1992) ("Where due process has been afforded a litigant, technical violations of the rule concerning service of process do not defeat the court's jurisdiction.") (citation omitted), certif. denied, 133 N.J. 434 (1993).

Here, defendant was involved in four arbitrations with plaintiff and filed opposition with the arbitrator. He had already been served with, and responded to, the first complaint. Defendant's certification does not dispute that he received the summons and complaint, only that he may have been confused because there were multiple complaints. "[D]elivery of a summons and complaint to someone at the defendant's home who transmits them to the defendant in a timely fashion will be treated as valid service of process even if the recipient of the process was not a member of the defendant's household." Sobel v. Long Island Entm't Prods., Inc., 329 N.J. Super. 285, 292 (App. Div. 2000).

Finally, defendant concedes that his final point "needs to be addressed if there is a remand." We see no reason to remand any of the matters in light of our prior discussion. Moreover, to the extent that the argument raised involved the trial judge's ruling on a discovery motion, we see no basis to disturb the broad discretion accorded to him on such matters, Leitner v. Toms River Reg'l Schs., 392 N.J. Super. 80, 87 (App. Div. 2007), particularly in a matter that, by statute, is summary in nature. See MAG Entm't, LLC v. Div. of Alcoholic Beverage Control, 375 N.J. Super. 534, 552 (App. Div. 2005) (holding that "protracted discovery is simply not suitable, and, absent legitimate need, is not permissible in actions, . . . that are inherently summary by nature and expedited in manner").

Affirmed.

 

The motion judge referenced the outcome of this aspect of the federal suit in his written dispositional opinion.

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A-5484-07T2

August 18, 2010