BANK OF AMERICA, N.A. Plaintiff-Appellee
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
CONVILLE & BLITT, LLCBy: Jeremy Lambert Nusloch, Counsel
MOORE, GARRETT, and STONE, JJ.
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.
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."
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.
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
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. 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
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.
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