Barclays Bank Delaware, Plaintiff(s) v. Ramon Antonio Mercedes, Defendant(s) (2026)

Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:

Papers Numbered

Order to show Cause/ Notice of Motion and

Affidavits /Affirmations annexed 1

Answering Affidavits/ Affirmations 2

1/27/26 Interim Order 3

6/30/26 Interim Order 4

7/27/26 Letter from Plaintiff's Counsel 5

Present: Hon. Eric J. Wursthorn, J.C.C.:

Upon the foregoing cited papers, the Decision/ Order on plaintiff's motion for summary judgment is as follows:

Plaintiff Barclays Bank Delaware brings this action against defendant Ramon Antonio Mercedes for breach of a credit card agreement, alleging defendant's failure to pay charges he purportedly made and/or authorized. Plaintiff moves pursuant to CPLR § 3212 for summary judgment on its sole cause of action for breach of contract, seeking a money judgment of $4,043.43 against the defendant. Plaintiff contends no triable issues of fact exist.

Defendant pro se opposes the motion, asserting he is a victim of identity theft, that plaintiff has repeatedly failed to comply with discovery orders directing disclosure of its fraud investigation, and that plaintiff has not met its prima facie burden. Defendant also argues that plaintiff failed to establish the operative terms of any agreement. Defendant's affirmation in opposition is submitted along with an Affirmation of Translation which indicates that defendant was assisted by a Spanish language translator who translated the contents of the document from English to defendant's primary language, Spanish.

For the reasons set forth below, plaintiff's motion is denied on both procedural and, alternatively, substantive grounds.

I. Applicable Legal Standards

On a motion for summary judgment, the proponent bears the initial burden of setting forth evidentiary facts to prove a prima facie case that would entitle it to judgment in its favor, without the need for trial (CPLR 3212; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). If the movant fails to establish its prima facie burden, the motion must be denied regardless of the sufficiency of the opposing papers (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Ayotte v Gervasio, 81 NY2d 1062 [1993]).

Granting a motion for summary judgment is the functional equivalent of a trial, therefore it is a drastic remedy that should not be granted where there is any doubt as to the existence of a triable issue (Rotuba Extruders v Ceppos, 46 NY2d 223 [1978]). The court's function on these motions is limited to "issue finding," not "issue determination" (Sillman v Twentieth Century Fox Film Corp., 3 NY2d 395 [1957]).

II. Plaintiff's Burden Not Met and Identity Theft Defense

Plaintiff pleads only a single cause of action for breach of contract. Therefore, defendant's arguments regarding plaintiff's purported claims for account stated and unjust enrichment are inapplicable and are hereby rejected.

A credit card agreement is a contract whereby the credit card user agrees to repay the bank for charges made using the credit card (see e.g. Citibank (S.D.) N.A. v Sablic, 55 AD3d 651 [2d Dept 2008]). To prevail on a breach of contract claim, plaintiff must demonstrate: (1) the existence of a contract; (2) plaintiff's performance; (3) defendant's breach; and (4) resulting damages (Noto v Panck, LLC, 228 AD3d 516 [1st Dept 2024]).

Although plaintiff's counsel claims that the cardmember agreement is attached to its motion papers as Exhibit "B", the Court could not locate an Exhibit "B" or a cardmember agreement within the 137 pages of motion papers filed with the court.

Billing statements alone, without an underlying contract, are insufficient to establish the parties' contractual relationship or the terms allegedly breached. Without a cardmember agreement, the Court cannot ascertain the governing terms, applicable default provisions, or the contractual basis for the damages sought. Thus, plaintiff's failure to provide the cardmember agreement or a reasonable explanation for failing to do so is fatal to its motion for summary judgment on a claim for breach of the cardmember agreement.

Assuming arguendo plaintiff met its initial burden, defendant has established a triable issue of fact regarding whether he made or authorized the disputed charges.

There is a dearth of appellate caselaw addressing the identity-theft defense in consumer-credit actions. However, it is clear that identity theft constitutes a valid defense in credit card collection actions because it directly challenges whether the defendant incurred or authorized the underlying debt. New York courts have recognized this defense as creating triable issues of fact where the debtor submits evidence disputing that they made the transactions or authorized same (see Discover Bank v Robinson, 24 Misc 3d 126[A] [App Term, 2d Dept 2009]; Direct Merchants Credit Card Bank v Ugweches, 4 Misc 3d 140[A] [App Term, 1st Dept 2004]). Moreover, a bank's motion for summary judgment on a breach of a consumer credit agreement should be denied where the defendant tenders sufficient evidence that they timely objected to the charges based upon inaccuracies on the bank's part, such as mistaken identity (Citibank (S.D.), N.A. v Brown-Serulovic, 97 AD3d 522 [2d Dept 2012]).

In his affirmation in opposition, defendant denies incurring the underlying debt and claims he first learned of this debt when he received a letter from plaintiff in April 2024. By letter dated May 12, 2024, defendant claims he formally disputed the debt with plaintiff. A copy of that letter has been provided to the court. Defendant's letter states that he "attempted several times to dispute the charge to the bank and report fraud and they just dismiss me." Plaintiff, he asserts, never responded to the 5/12/24 Letter.

Additionally, defendant submitted an Identity Theft Report he filed with the Federal Trade Commission, which states:

"I was sued in Bronx Civil Court in August 24, 2024 for the sum of $4,043.43 for a debt that I did not incur on my credit card (Barclays Bank Delaware/JetBlue Card). The last time I used my credit card was in 2021 and I paid my balance in full. After I learned that charges were made on my credit card without my consent, I attempted to inform the bank in June 2023 that I did not authorize the charges and attempted to file a police report."

Defendant has not explained the discrepancy between his claim in this motion that he first learned of the debt in 2024 and his FTC statement indicating he disputed the charges in June 2023. Although the affirmation in opposition was not written by defendant but rather translated from English to Spanish before he signed the document, it is unclear if this discrepancy is an inadvertent error or an actual inconsistency. In either scenario, defendant consistently disputed the underlying debt (Briggs v Fresenius, 247 AD3d 1426 [3d Dept March 26, 2026] [courts must "make reasonable allowances to protect pro se litigants from inadvertent forfeiture of important rights because of their lack of legal training."]; see also Corsini v U-Haul Intern., Inc., 212 AD2d 288 [1st Dept 1995] ["Allowances are normally made for pro se litigants."]).

Defendant further submits proof that he was previously impacted by a significant data breach. While such a breach does not prove causation regarding this particular account, defendant also claims that another one of his credit cards was "similarly misused around the time in question here."

On this record, the Court finds that the defendant has raised a triable issue of fact sufficient to defeat plaintiff's motion. Specifically, defendant claims he did not use the card after 2021, while the charges plaintiff seeks to recover began in April 2022. Plaintiff's reliance on Defendant's prior use of the card does not constitute proof that he authorized the disputed 2022 2023 transactions. Moreover, to the extent that plaintiff's affiant claims the defendant did not dispute the underlying transactions, defendant has submitted proof to the Court which contradicts plaintiff's claims on this point. Defendant's submissions, at this stage, raise a triable issue as to whether he authorized the transactions and timely disputed them.

The Court notes that plaintiff declined the opportunity to submit reply papers, despite a prior interim order affording such leave (see 6/30/26 Interim Order, Hon. Diomarys Escaño-Bell; 7/27/26 Letter from Plaintiff's Counsel). As a result, whether defendant caused the subject charges to be made and/or authorized them remains a triable issue of fact.

III. Plaintiff's Noncompliance with Court Ordered Discovery

Plaintiff's noncompliance with court-ordered discovery provides separate grounds to deny the motion pursuant to CPLR § 3212[f].

This Court previously issued two orders directing plaintiff to provide defendant with the results of its fraud and identity theft investigation (March 10, 2025, Hon. Jessica Bourbon; July 31, 2025, Hon. Brenda L. Rivera). Defendant contends that plaintiff ignored both orders and filed the present motion instead.

Plaintiff's failure to timely comply with these orders may reasonably impair defendant's defense of this matter. Moreover, summary judgment is premature when limited discovery has been conducted and facts essential to justify opposition to the motion are exclusively within the movant's knowledge (CPLR 3212[f]; see Jeffrey v DeJesus, 116 AD3d 574 [1st Dept 2014]). Thus, to the extent that plaintiff has not complied with the court's prior orders, the motion should be denied, alternatively, as premature.

Further, the Court directs plaintiff to comply with these prior orders and provide to defendant the results of its fraud and identity theft investigation, to the extent it has not already done so, within 60 days. Plaintiff's failure to comply with this order may result in preclusion at the time of trial (see generally CPLR 3126).

Conclusion

Based upon the foregoing, it is hereby

ORDERED that plaintiff's motion for summary judgment is denied; and it is further

ORDERED that within 60 days of entry of this Decision and Order, plaintiff shall provide defendant with the results of its investigation into defendant's identity theft claim and fraud allegations. Plaintiff's failure to comply may result in an order of preclusion at trial; and it is further

ORDERED that the parties shall appear for a compliance conference on March 4, 2027 at 9:30 A.M., in Part 11C, Room 504.

Any requested relief not expressly addressed herein has nonetheless been considered and is hereby denied and this constitutes the decision and order of the Court.

Date:

Hon. Eric J. Wursthorn

Civil Court Judge (NYC)

Eric J. Wursthorn, J.