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Bank of America, N.A. v. Green

Court of Appeals of Louisiana, Second Circuit

May 23, 2018

BANK OF AMERICA, N.A. Plaintiff-Appellee
v.
ERNEST J. GREEN, JR. Defendant-Appellant

          Appealed from the Fourth Judicial District Court for the Parish of Ouachita, Louisiana Trial Court No. 2016-3791 Honorable B. Scott Leehy, Judge.

          ROUNTREE LAW OFFICES By: James A. Rountree, Counsel for Appellant.

          COUCH, CONVILLE & BLITT, LLCBy: Jeremy Lambert Nusloch, Counsel for Appellee.

          Before MOORE, GARRETT, and STONE, JJ.

          GARRETT, J.

         The defendant, Ernest J. Green, Jr., appeals from a summary judgment finding him liable for a credit card debt of almost $15, 000. We affirm the trial court judgment.

         FACTS

         On December 19, 2016, Bank of America, N.A., as successor-in-interest of FIA Card Services, N.A., filed suit against the defendant, alleging that he owed $14, 979.26 on a credit account. It also filed a request for admission of facts, asking the defendant to admit the account and the amount. The defendant filed an answer on January 5, 2017, in which he stated that he "admits having . . . a card issued by MBNA that somehow evolved into another card. He further admits that he used the card and paid for goods and services." He otherwise denied the allegations of the petition and accused the plaintiff of "persistent unfair billing practices and unauthorized charges."

         On June 30, 2017, the plaintiff filed a motion for summary judgment, and a hearing was set for August 23, 2017. In support of the motion, the plaintiff submitted an affidavit from its custodian of records, Melinda K. Stephenson. She explained that, following a merger, the plaintiff was the successor-in-interest of FIA Card Services, N.A., formerly known as MBNA America Bank, N.A. According to the regularly kept books and records of the business, the defendant opened an account with it or a predecessor-in-interest, failed to make periodic payments, and currently owed $14, 979.26, as of the date of the affidavit, April 25, 2017. Attached to the affidavit were copies of the defendant's monthly statements from July/August 2015 to July/August 2016, the application record, the agreement, and notices of changes to the account. The statements, which bore the defendant's name and matched the account number referenced in Ms. Stephenson's affidavit, show numerous purchases at a variety of businesses located in Monroe, West Monroe, and Sterlington, Louisiana. They included stores such as Family Dollar and Brookshire's, as well as restaurants like Wendy's and Waffle House.[1]

         On August 15, 2017, the defendant filed an opposition in which he asserted that the claim was disputed; there was no evidence of a $13, 000 plus charge listed on one of the account statements; and there were no documents submitted showing his use of a credit card for purchase of any goods or services. He submitted his own affidavit in which he asserted that the suit was "for a credit card account with charges I do not recognize." He specifically stated that there was a charge for $13, 521.50, supposedly shown on February 24, 2016, and that he made no such charge or purchase.

         A hearing on the motion for summary judgment was held on August 23, 2017. Counsel for the defendant argued that there was a disputed issue of material fact as to the alleged February 24, 2016 charge. However, when the trial court reviewed the charges on the record, no such charge was found.[2] Counsel for the defendant also repeatedly asserted that his client had not admitted using the credit card. However, the trial court pointed out that the defendant admitted in his answer having a card from MBNA which he used and that such constituted a judicial admission. Furthermore, the trial court noted the defendant's apparent failure to ever challenge the charges to the credit card company. At the conclusion of the hearing, the trial court granted summary judgment. That same day, the court signed a judgment awarding $14, 979.26 and all costs in favor of the plaintiff. The defendant appeals.

         LAW

         Appellate courts review motions for summary judgment de novo, using the same criteria that govern the district court's consideration of whether summary judgment is appropriate. Peironnet v. Matador Res. Co., 2012-2292 (La. 6/28/13), 144 So.3d 791.

         The motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Schultz v. Guoth, 2010-0343 (La. 1/19/11), 57 So.3d 1002. The procedure is favored and shall be construed to secure the ...


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