Barry Bursey PCC No., SB No. BURSEY & ASSOCIATES, P.C. 0 N Oracle Rd Suite Tucson, AZ 0 (0-00 Voice (0-00 Fax Email: litigation@bursey.org Attorney for Plaintiff, Midland Funding LLC IN THE KINGMAN JUSTICE COURT OF THE STATE OF ARIZONA MIDLAND FUNDING LLC, a foreign entity, No. CV0UN 0 Plaintiff, PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT v. CHRlSTINE BAKER and JOHN DOE, husband and wife Defendants -------------- Plaintiff, Midland Funding LLC, moves pursuant to Rule, Ariz.R.Civ.P., for summary judgment in Plaintiffs favor and against Defendant, Christine Baker. There are no issues of material fact preventing entry of summary judgment in favor ofplaintiff. This Motion is supported by the attached Memorandum of Points and Authorities, the separate 0 Statement offacts filed contemporaneously, and all other pleadings and exhibits previously submitted to the Court. Dated: /.JI / r' IN AND FOR THE COUNTY OF MOHAVE BY_~~~_-l--~ ASSOCIATES, P.C. Burse, Esq. son J. Le oy, Esq:'" Monica L. errick, Esq. Attorneys for Plaintiff, Midland Funding LLC _
I. ISSUE MEMORANDUM OF POINTS AND AUTHORITIES 0 0 Defendant, Christine Baker, entered into a credit card agreement with HSBC BANK NEVADAN.A. under account number 0. (SOF~. Plaintiff,Midland Funding LLC, is the successor-in-interest to Defendant's debt to HSBC BANK NEVADA N.A. (SOF ~. Defendant owes Midland Funding LLC, as the holder, $,0.0. (SOF ~. This amount includes the principal balance of$,., minus any payments made. (SOF ~. The HSBC BANK NEVADA N.A. Cardmember Agreement states that if in default, Defendant will be liable for attorney's fees and court costs inculted through collection efforts. (SOF ~. II. LAW AND ARGUMENT A. Standard of Review. Rule, Ariz.R.Civ.P., mandates that summaryjudgment"shall be rendered forthwith ifthe pleadings, depositions, answers to inteltogatories and admissions on file, together with the affidavits, ifany, show that there is no genuine issue ofmaterial fact and that the moving party is entitled to judgment as a matter oflaw." The party seeking summary judgment bears the initial burden ofinforming the court ofthe basis for its motion, identifying those portions ofthe pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, if any, which it believes demonstrate the absence of the genuine issue of material fact. Celotex Corp. v. Catrett, U.S., (; Anderson v. Liberty Lobby, Inc., U.S., (. B. Defendant Entered the Credit Card Agreement for a HSBC BANK NEVADA N.A. Credit Card, the Debt From Which is Currently Held by Plaintiff. Under applicable law governing credit cards, an agreement does not necessarily arise from the signing of a application for credit by Defendant. Rather, Defendant entered into a contract with the original creditor by accepting that creditor's offer to extend credit and by
0 0 using the offered credit card. The actual use ofthe credit card gave rise to the contract. See, ~, Anastas v. American Say. Bank (In re Anastas, F.d 0, (th Cir. (finding that each card use fonus a unilateral contract: the holder promises to repay the debt and the issuer perfonus by reimbursing the merchant who accepted the card in payment; Goldman v. First Nat'l Bank of Chicago, F.d 0, n. (th Cir. cert. denied, U.S. 0 ( (finding under Consumer Credit Protection Act, no extension ofcredit until card-use, Bank of Am. v. Jarczyk, B.R., (W.D.N.Y 00 (Acceptance or use of the card by the offeree makes a contract between the parties according to the terms. '" Because it is the use ofthe credit card, and not the issuance, that creates an enforceable contract, each time a cardholder uses his credit card, he accepts the offer by tendering his promise to perform (i.e. to repay the debt upon the tenns set forth in the credit card agreement; Grasso v. First USA Bank, A.d 0 (Del. Super. ; Garber v. Harris Trust & Say. Bank, N.E.d 0 (Ill.App. ("use of the card by the cardholder makes a contract between the cardholder and the issuer."; Novack v. Cities Service Oil Co., N.J. Super., - (Law Div., affd N.J. Super. 00 (App. Div., cert. denied, N.J. (; City Stores Co. v. Henderson, S.E. d (Ga. App. Ct. (The issuance ofa credit card is but an offer to extend a line ofopen account credit. use ofthe card by the offeree makes a contract between the parties according to its terms., See CORBIN ON CONTRACTS, Revised Ed.,. (promisor to a unilateral contract can either be an offeror or an offeree. Use of the card creates the agreement. Defendant has not met her obligations under the agreement, namely to pay the credit issuer for the extension of credit. Now, Defendant owes the current holder of the debt the original principal amount and all accrued interest from the date ofdefault to the date ofjudgment. C. Defendant is in Default on the Credit Agreement. Defendant used the credit card. Plaintiffs predecessor-in-interest provided funds for Defendant's use. Defendant agreed through use to pay the issuer for the extended credit. Defendant failed to meet her obligations under the credit card agreement. Defendant owes
0 0 Plaintiff, as successor-in-interest to Defendant's credit card debt with HSBC BANK NEVADA N.A., the amount in default, plus interest. D. Defendant Agreed to the Terms and Conditions of the Credit Card by Using the Card. One of the Conditions is Payment of Attorney's Fees. The HSBC BANK NEVADA N.A. Cardmember Agreement sets forth the terms and conditions of the credit agreement between Plaintiffs predecessor-in-interest and the Defendant. That Agreement states that if the cardholder is in default or fails to pay any amounts owed on the Account, the cardholder will pay collection costs and reasonable attorney's fees and court costs. Therefore, Plaintiff requests this court grant an award to Plaintiff ofreasonable attorney's fees incurred for collection on this account. E. Defendant's General Denial of the Debt is Insufficient to Create a Question of Fact for Trial. In her Answer, Defendant makes a general denial ofplaintiffs claim. Since the filing ofthis Motion, Defendant has not offered any support for her denial other than arguing in her Counterclaim and Response to Motion to Dismiss Counterclaim the incorrect proposition that Plaintiffhas violated the Fair Debt Collection Practices Act. This is not sufficient to create a question of fact for trial. Arizona law is clear that summary judgment should be granted in favor of a plaintiff ifthe facts produced in support ofthe defense have so little probative value that reasonable people could not agree with the position advanced by the defendant. Sanchez vs. City of Tucson, P.d, AZ (. Rules and., Ariz.R.Civ.Pro., require Defendant to supply Plaintiffwith her factual and legal defenses and to supply Plaintiffwith all information in her possession concerning this matter. These principals are further reflected in Rule (c(l, Ariz.R.Civ.Pro., which allows the court to set aside a defendant's answer and enter judgment for failure to provide. disclosure. Ariz.R.Civ.Pro. See Rule (c(l, Here, Defendant has not provided a. Disclosure Statement. Nor has Defendant offered any evidence of fact contradicting Plaintiffs claims. Defendant has merely argued
0 0 that Plaintiff has violated the Fair Debt Collection Practices Act. This is not sufficient to create an issue of fact for trial. Unless the Defendant comes forward with evidence creating a genuine issue of material fact, Plaintiff is entitled to judgment as a matter oflaw. F. PlaintiffWaives it Right to Pre-Judgment Interest, Nullifying Defendant's Argument that Plaintiff is not Entitled to such Under the Contract or Law. In her Counterclaim and Response to Motion to Dismiss, Defendant argues that Plaintiffis not authorized to recover pre-judgment interest for the debt. To expedite matters and streamline the issues, Plaintiff waives its claim to prejudgment interest and seeks only the principal amount of $,. plus post-judgment interest at the rate of.% from the date of Judgment, minus any payments made. III. CONCLUSION As a matter oflaw, Defendant owes Plaintiffthe full amount ofthe debt plus accruing interest thereon. Plaintiff requests that this Court enter summary judgment in favor of Plaintiff and against Defendant, Christine Baker, on all claims, and awarding Plaintiff its damages resulting from the breach, along with pre-judgment interest and reasonable attorneys' fees and costs. Dated :-----/+/..:...,."",..+--=---'.-",,"""'...--c- BURSEY & ASSOCIATES, P.c. By :--rd---}---rv'~-~------ Original of the foregoing delivered /J. I ZL to: (, Mohave - Kingman County Justice Court W. Beal SLIP.O. Box Kingman, AZ 0 CoPy ofrl foregoing mailed ~. J/. '< to:
Defendant, Christine Baker 0 STOCKTON HILL 0- KING, AZ 0 0 0