Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

Thomason v. FIA Card Servs., N.A.

Court of Appeals of Georgia

February 4, 2015

THOMASON
v.
FIA CARD SERVICES, N.A

Credit card account. Dawson Superior Court. Before Judge Salmon, Senior Judge.

Phillip L. Thomason, pro se.

Hanna & Associates, Christopher R. Yarbrough, S. Louis Schiappa, for appellee.

OPINION

Page 786

Dillard, Judge.

Phillip L. Thomason, pro se, appeals the trial court's grant of summary judgment to FIA Card Services, N.A. (" FIA" ) on its complaint on a credit-card account, contending that FIA failed to establish that it was the real party in interest with standing to sue and that the trial court erred in summarily disposing of his counterclaims. For the reasons noted infra, we reverse.

Viewed in the light most favorable to the nonmovant (Thomason),[1] the record reflects that on September 8, 2010, FIA filed suit against Thomason to recover what it alleged was an outstanding balance upon a credit card with a 14-digit account number ending in 3030. Specifically, FIA asserted that Thomason owed an outstanding balance of $76,114.19, plus court costs of $255.00. And in support of its claim, FIA attached to the complaint a copy of a certificate issued and signed by its assistant secretary on July 20, 2009, which certified that on October 20, 2006, Bank of America, N.A. " merged into and under the charter and title of FIA Services ... ."

[330 Ga.App. 604] On October 5, 2010, Thomason filed his answer to the complaint, denying that he had a credit card with FIA under the account number ending in 3030 or that he was otherwise indebted to FIA as claimed.[2] Thomason also asserted that FIA had failed to show that it was the real party in interest to sue upon the account. FIA filed a motion for summary judgment on July 27, 2011.

In support of its motion for summary judgment, FIA attached the affidavit of a custodian of records and an authorized officer, who averred to having personal knowledge of the " manner and method by which [FIA] maintains its normal business books and records." He further averred that FIA's records show that Thomason " opened an account with FIA Card Services, N.A., or a predecessor in interest, for the purpose of obtaining an extension of credit and did thereafter use and authorize the use of the account for the acquisition of goods, services, or cash advances in accordance with the customer agreement." The customer agreement, also attached as an exhibit, was dated 2006 and provides that its terms apply to the user of the account and that, as a result of a merger, the customer's Bank of America account would thereafter be issued and administered by FIA.

Additionally, the FIA officer averred that the company's records showed that Thomason was in breach of his agreement by failing to make periodic payments and, accordingly, he was indebted to FIA in the sum of $76,114.19 on a 14-digit account number that ended in 1238. Bank of America account billing statements were attached as exhibits referenced in support of same. Those statements, dating back to May 2007, referenced a credit line under a 14-digit account number that ended in 3030, which in December 2009 had an outstanding balance of $76,114.19 with a minimum payment of $10,151.00 due, after a November 2009 statement warned that the account was " scheduled to be written off as bad debt in your next billing cycle." [3]

Thomason filed a response to the motion for summary judgment, once again denying that he was indebted to FIA and challenging its standing to collect upon the alleged debt. Then, in October 2012, Thomason sought leave to amend his answer to include counterclaims against FIA for breach of fiduciary duty, " failure to exhibit fair dealing and acts of bad faith," fraud, violation of the Fair Debt Collection Practices Act, intentional infliction of emotional distress, and " infliction of willful harm."

[330 Ga.App. 605] On December 27, 2012, the trial court granted FIA's motion for summary judgment, noting that FIA's " detailed affidavit setting forth the evidentiary basis of [its] claim against [Thomason] ... made out a prima facie case." The trial court also ruled

Page 787

that the counterclaims Thomason sought to add " were of a nature such that their validity was dependent upon [FIA] not prevailing in [its] [c]omplaint," and, as such, determined that they should be " dismissed." Ultimately, the trial court awarded FIA the requested $76,114.19, plus costs. This appeal by Thomason follows.[4]

Thomason argues first and foremost that the trial court erred in granting summary judgment to FIA when it failed to demonstrate that it was in privity of contract with him. And while Thomason attacks FIA's manner of attempting to prove privity by attaching a copy of the customer agreement that it alleged applied to his account,[5] we focus instead on a more obvious problem in the proof submitted by FIA--the failure to properly authenticate any document attached in support of its motion for summary judgment.

The FIA officer's affidavit refers to outstanding debt owed on an account ending in 1238, while the complaint and exhibits attached to the affidavit refer to an account ending in 3030. This obvious inconsistency between the account number referenced in the affidavit and that reflected on the attached exhibits results in a failure to properly authenticate the documents that FIA claims establish both privity of contract and the amount owed upon the account.[6] Accordingly, the [330 Ga.App. 606] trial court erred in granting summary judgment to FIA and, likewise, in summarily disposing of Thomason's request to add counterclaims against FIA when the trial court did so on the basis that the counterclaims were contingent upon FIA's failure to prevail on its complaint.[7]

Page 788

For all of the foregoing reasons, we reverse the trial court's grant of summary judgment to FIA.

Judgment reversed.

Doyle, P. J., and Miller, J., concur.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.