LLC v. Sandra Herring (2011)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (102.00)

The court cannot grant summary judgment at this time.   There is no question that the defendant Sandra Herring owes money on her former Bank of America credit card.   In an undated letter to the court received in September she admits as much, and she admitted owing money in her answer (Dkt. Entry 101.00).   Nevertheless, there are material facts which are unresolved precluding summary judgment.

First, the plaintiff provides scant evidence of an assignment of the credit card account from Bank of America.   This issue, by itself, in light of the defendant's position not challenging the assignment is probably not sufficient to deny judgment, but it is unusual.   Second, the complaint and affidavit in support refer to the last four digits of defendant's credit card 0395, whereas the few monthly statements provided make reference to different numbers.   Third, the defendant has strongly contested the claimed amount owed.   She refers to ten payments made from September 2006 to September 2007 totaling $3,533.00 which she believes were not properly credited.   The plaintiff has only produced one monthly statement showing a $500.00 payment was credited.¹  Fourth, there is no way of knowing, because no statements were produced, how the amount claimed increased from $14,820.00 in October to over $17,000.00 in April 2008.   The lack of statements precludes judgment on an account stated theory.

Summary judgment is denied.   The parties are strongly urged to agree to a payment schedule and to adhere to it.

TAGGART D. ADAMS

JUDGE TRIAL REFEREE

FOOTNOTES

FN1. Although Ms. Herring was advised to do so, it is unclear that her September letter was sent to the plaintiff..  FN1. Although Ms. Herring was advised to do so, it is unclear that her September letter was sent to the plaintiff.

Adams, Taggart D., J.T.R.