CITIBANK, N.A. v. ELVIS OBANOR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2618-12T2

CITIBANK, N.A.,

Plaintiff-Respondent,

v.

ELVIS OBANOR,

Defendant-Appellant.

___________________________________

June 19, 2014

Submitted May 12, 2014 Decided

Before Judges Yannotti and Ashrafi.

On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Union County, Docket No. DC-14386-12.

Elvis Obanor, appellant pro se.

Jaffe & Asher, L.L.P., attorneys for respondent (Gillian Cassell-Stiga, on the brief).

PER CURIAM

Defendant Elvis Obanor appeals from the judgment of the Special Civil Part after a bench trial, which awarded plaintiff Citibank $14,281.46 due on defendant s Home Depot/Expo credit card account. We affirm.

Plaintiff filed its collection complaint in October 2012. Defendant filed an answer in which he stated: "Dollar amount is grossly excessive and has been overstated." In addition, by means only of a handwritten notation on the form answer, defendant alleged a purported "counterclaim" for "failure to validate debt, consumer protection afforded by FDCPA section [indiscernible] seeking relief & judgment for [indiscernible]."1 We understand the reference to FDCPA to mean the Fair Debt Collection Practices Act, 15 U.S.C.A. 1692 to 1692p. The Special Civil Part granted plaintiff's motion to dismiss the counterclaim, entering an order of dismissal on December 10, 2012.

The case proceeded to a non-jury trial on January 28, 2013, after the court denied defendant's motion to compel additional discovery. Plaintiff presented testimony from an assistant vice-president of Citibank who testified about the bank's electronic account records for a credit card issued to defendant for use at Home Depot stores. According to the records, defendant opened the account on February 7, 2003, giving an address in Hillside, New Jersey. Billing statements were sent to that address for almost nine years, and payments were made on the account. However, the account became delinquent, and no payments were made after November 15, 2011. As of the time of trial, there was a balance of $14,224.46 due on the account.

The witness explained the billing and mailing procedure for such accounts and testified that nothing in Citibank's records indicated a problem with the address to which the statements were mailed or a disputed billing statement. In response to the judge's questions, the witness pinpointed the Home Depot stores at which charges were made on the account as primarily those located in Union and Newark.

In response to cross-examination by defendant, the witness testified that the actual signed receipts for the products purchased from the Home Depot stores were the property of and retained by Home Depot, and that it is in the regular course of business practice for Citibank to compile an electronic record of a cardholder s transactions and mail the billing statements to the cardholder each month based on the electronic records.

Over defendant's objections that there was no evidence the billing statements were actually received by him, or that he had signed a contract to open the account, the court admitted in evidence the Home Depot account statements dating from January 2004 through March 2012, when the account was closed and submitted for collection.

In the defense case, defendant testified that he moved to his Hillside home in 2003, and he confirmed his home address as the one shown on the Citibank/Home Depot account. He did not deny that he had opened the account. He testified that in 2007 he began a construction project on his home, adding a second floor. Since that time, he made a number of other home improvements, including flooring and painting. He admitted he purchased materials from Home Depot stores in Union, Newark, and other locations. Defendant did not change his address between the time he opened the account and the time of trial.

In his closing argument, defendant asserted there was no proof that he had received the mailed billing statements, or that Citibank had a contract signed by him establishing the account. He argued further that Citibank should have to produce the retail invoices that resulted in his account balance.

The court rejected these arguments and found the evidence sufficient to prove the account was opened by defendant and he incurred the charges without paying the amounts due. The court entered judgment for plaintiff for the $14,224.46 balance stated on the final account plus $57 in court costs.

On appeal, defendant argues plaintiff violated 15 U.S.C.A. 1692e and 1692g because it did not produce documents proving that defendant owed a debt to the original creditor and that Citibank had standing to bring an action to collect the debt. He also contends the evidence was insufficient to prove he ever received the billing statements, or he incurred the charges reflected on those statements.

Our scope of appellate review is limited with respect to the trial court s findings of fact. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). We defer to the trial court and may not disturb its factual findings so long as "there is sufficient credible evidence in the record to support the findings." Brunson v. Affinity Fed. Credit Union, 199 N.J. 381, 397 (2009); accord State v. Adams, 194 N.J. 186, 203 (2008). This court "may not 'engage in an independent assessment of the evidence as if it were the court of first instance.'" In re Taylor, 158 N.J. 644, 656 (1999) (quoting State v. Locurto, 157 N.J. 463, 471 (1999)).

Having reviewed the record and considered defendant's arguments, we find no ground to reject the trial court s findings and conclusions. The trial court found that defendant amassed the credit card debt while making purchases from Home Depot stores located near his home. Citibank was the creditor on the account and did not need to produce all the retailer's cash register receipts to prove the debt. The court found that Citibank's electronic business records were created when the transactions occurred, and that it is in the regular course of its business to maintain such records and mail monthly statements to the cardholder derived from them. The records could not be altered once they were generated, defendant did not change his address during the time the account statements were regularly mailed to him, and the billing statements were not returned as undelivered. Based on that evidence, the court concluded that plaintiff proved by a preponderance of the evidence that defendant had a delinquent balance due of $14,224.46.

Defendant also attempts to rehabilitate his argument that plaintiff violated the Fair Debt Collection Practices Act because it did not respond to all his inquiries seeking evidence of the origination of the debt. Plaintiff responds that it was not acting as a debt collector, but rather as the original creditor, and thus the provisions of the federal Act do not apply to it. Alternatively, plaintiff argues that it complied anyway with the requirement that it verify the debt and timely notified defendant of the verification.

Defendant s notice of appeal does not reference the December 10, 2012 order by which his counterclaim alleging violations of the federal statute was dismissed. Therefore, we need not address his arguments as to the allegations of his counterclaim. Nevertheless, we find no merit in them for the reasons argued by plaintiff.

Also, at the start of the trial, defendant moved to compel discovery, demanding the production of an original signed contract and other documents. The court denied defendant s motion, but gave defendant time to look through the account statements to confirm that plaintiff's claims pertained to his Home Depot account and charges. The court did not err in proceeding to trial and in rejecting defendant's affirmative defenses based on alleged violations of the Fair Debt Collection Practices Act or the court's discovery rules.

Affirmed.

1 Contrary to Rule 2:6-1(a)(1), defendant's appendix fails to contain the necessary record for review of his appeal. In particular, it does not contain a copy of his answer and counterclaim. Plaintiff's poorly organized appendix contains a copy of what appears to be the answer and counterclaim, although parts of the one-page document are cut off.