County Small Claims Court:  CONSUMER LAW – Florida Consumer Collection Practices Act – trial court did not error in granting motion for summary judgment-no genuine issues of material fact, only issue was a legal issue of whether or not defendant’s actions qualified as an “attempt to collect a debt”-  Trial court did not error in finding defendant’s actions did not qualify as an attempt to collect a debt- there was competent substantial evidence of record to support the trial court’s findings that the plaintiff’s action failed to raise a justiciable issue of law and fact- Plaintiff waived the issue of discovery  since plaintiff did not file a motion for continuance pursuant to Florida Rule of Civil Procedure 1.510(f).  Order Affirmed. Dangond v. Citibank, N.A., No. 512005AP17WS (Fla. 6th Cir. App. Ct. July 24, 2006.   

 

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA, IN AND FOR PASCO COUNTY

APPELLATE DIVISION

 

 

VICTOR DANGOND,

            Appellant,

                                                                        Case No: 512005AP17WS.

                                                                        Lower No: CTC503114MMAWS17

CITIBANK (South Dakota), N.A.,

___________________________/

 

 

Appeal from Pasco County Court

County Judge William G. Sestak

 

Mark T. Tischhauser, Esq.

Attorney for Appellant

 

 

Louis M. Ursini III, Esq.   

Attorney for Appellee

 

ORDER AND OPINION

 

This matter came before the court on Dangond’s appeal from an Order Granting Citibank’s Motion for  Summary Judgment entered by the Pasco County Court . This Court has jurisdiction. Fla. R. App. P. 9.030(c).  The ruling of the trial court is affirmed.

            The underlying facts are not in dispute.  Appellant maintained a credit card account with Citibank.   The account was billed  $10.95 on April 18, 2003; May 19, 2003, June 18, 2003; July 17, 2003 and August 20, 2003– totaling $54.75-by a merchant, Essentials Gold. According to an affidavit filed by appellant, he alleges that “at all material times” he disputed the charges on his credit card verbally. 

 

Thereafter, on the September 18, 2003 statement, there were two credits, August 27 and August 29, for Essentials Gold each for $10.95.  According to the record, appellant then sent correspondence to Citibank which read “I am disputing the amount of this debt (Essentials Gold). Please provide receipts and or authorization [signed] by me, beginning [M]arch 2003 to present day.”  This correspondence was stamped received by Citibank on October 6. 

On the October 20, 2003 statement, there were six credits each with a sale date of October 2, for $10.95 plus credit for finance charges.  The account had a balance of “$28.43-”  The bottom of the account statement read: ‘This dispute has been resolved in your favor  . . . Essentials Gold . . . 4/18 sale date . . . $10.95  +   $.54 Fin Chg previously credited. . . . Under the terms of your card Agreement, the Finance Charges on this billing statement were calculated on the New Balance shown on your previous month’s billing statement until payment was credited to your account. . . . No  Payment Required. Your account has a credit balance.  You must call Customer Service for a refund.”

On November 13, 2003, appellant received correspondence from Citibank. Appellant attached the correspondence to his affidavit as Exhibit B. The letter read: “Thank you for contacting Citi® Cards.  This letter is in response to your inquiry about the transaction described below made with account number . . . : 17-Jul-03 . . . $10.95 . . . Essentials Gold.  We investigated your dispute involving a credit you expected but had not received.  Your account was credited on 02-Oct-03. We previously issued a conditional credit to your account for the amount in question pending the outcome of our investigation.  Now that the investigation is complete, we have rebilled your account for this charge along with any related fees and finance charges.  All adjustments will appear on your statement within two billing periods.”  At the very bottom, the document read” FEDERAL REGULATIONS REQUIRE THE STATEMENT PRINTED ON THE REVERSE SIDE.” There was no reverse side to the document in the record.  Attached to this correspondence in Exhibit B, appellant also attached a letter dated November 25, 2003, from appellant to Attorney James A. Thomas which read “I am sending you copy of correspondence I have received from Citi-Cards.  Is this a game for them? `First you have the credit according to first letter then you don’t.’. . . As you see waste of time for me. . . .Let me know the outcome.”  The letter contained a ‘P.S’. which read “The letter dated Nov. 13.03 was sent two times; I am sending you one of the original copies.” 

On November 13, 2003, appellant received a second correspondence from Citibank. Appellant attached the correspondence to his affidavit as Exhibit C. The letter read: “Thank you for contacting Citi® Cards.  This letter is in response to your inquiry about the transaction described below made with account number . . . : 18-Aug-03 . . . $10.95 . . . Essentials Gold. . . . We investigated your dispute involving a credit you expected but had not received.  Your account was credited on 27-Aug-03. . . . We previously issued a conditional credit to your account for the amount in question pending the outcome of our investigation.  Now that the investigation is complete, we have rebilled your account for this charge along with any related fees and finance charges.  All adjustments will appear on your statement within two billing periods.” At the very bottom, the document read” FEDERAL REGULATIONS REQUIRE THE STATEMENT PRINTED ON THE REVERSE SIDE.” There was no reverse side to the document in the record. 

The November 18 statement showed two activities: Reverse essentials Gold each in the amount of $10.95.  The first one had a sale date of 7/17 and the second one had a sale date of 8/18.  Both had a posted date of 10/22.  The statement read:  The following conditional credit was reversed since the item was credited twice to the account . . .Essentials Gold . . . 7/17 sale date . . .   $10.95   +  $.00 Fin Chg Previously Credited . . . Essentials Gold . . .  8/18 sale date . . .  $10.95   + $.00 Fin Chg Previously Credited. . . .No Payment Required . . . Your account has a credit balance.  You must call Customer Service for a refund.

The November 18 statement had a balance of  “$6.53-“  The statement read: “No Payment Required. Your account has a credit balance.  You must call Customer Service for a refund.”  In December, appellant received a credit for $.03, a settlement refund in the “Schwartz lawsuit.” The total balance was then $6.56.  The statement read: “No Payment Required. Your account has a credit balance.  You must call Customer Service for a refund.” That balance remained until the January 20, 2004 statement which read:  Dec Credit Bal Refund Check Processed   .03 . . The following dispute is now considered resolved. . . Essentials Gold . . .5/19 sale date . . .$10.95  + $.00 Fin Chg Previously Credited . . .Essentials Gold . . .6/18 sale date . . . $10.95  + $.00 Fin Chg Previously Credited. . . .   The January balance was again $6.53-.  The statement read: “No Payment Required. Your account has a credit balance.  You must call Customer Service for a refund.” The February statement contained the same language.  The March statement read:  “Credit Refund as Requested . . . 6.53.”

Appellant alleged that the November 13, 2003, correspondence from Citibank, stating that it was “re-billing” appellant’s account –for two of the charges, was an attempt to collect a debt. Appellant filed an action pursuant to Florida Consumer Collections Practices Act, (Florida Statute 559).  The essence of appellant’s allegations is that the appellee attempted to collect a debt for services that were erroneously or fraudulently billed to his Citi account.  Specifically, based on the November 13, 2003, correspondence from Citibank, appellant argued that he believed Citi was attempting to collect monies associated with the July 17 transaction, even after Citi had completed its investigation on the charge at issue. Appellant alleged that after further inquiry Citi claimed to have over credited his account.  Appellant alleged that he made requests for an accounting to explain the details of the transactions at issue, but no accounting was ever received nor assurance that his account was properly calculated.  Thus, appellant filed suit alleging that Citi violated FS 559.72(9) by attempting to collect a debt not owed, by re-billing the disputed date service at issue and not providing appellant with an accounting on his account.

Counsel for Citibank sent correspondence to counsel for appellant.  In the letter, Citibank addressed appellant’s claims and explained that a review of the records reflected that appellant was billed $10.95 on five occasions.  He originally received eight credits of $10.95 each, or three additional credits.  After two of those credits were reversed, he received a total of six credits, $10.95 more than he was charged.  In addition, he received credits for finance charges for five charges.  Counsel attached all statements from January 2003 through March 2004.  Counsel highlighted the statements for appellant and stated that he believed the lawsuit is without merit and should be dismissed. Counsel referenced the November 13 letters stating “[a]s  noted in a letter to [appellant] . . . two of those credits were reversed because they were issued in error.  At the end of the day, [appellant] received six credits for the five charges at issue, plus applicable financial charge adjustments.”  Appellant continued with the suit. Appellee filed a motion for sanctions on June 8, 2003 and a motion for final summary judgment on July 8, 2005. A hearing was held on August 8, 2005.   The court granted appellee’s motion for summary judgment and appellant appealed.  This Court finds that the trial court did not abuse its discretion.         

The appellant  raised the following five issues: (1) Is a trial court permitted to entertain a motion for summary judgment when the  plaintiff had not even had the benefit of deposing the defendant, let alone conclude the discovery process;  (2) It is clear that the trial court exceeded the permissible record in entering summary judgment against the plaintiff/appellant; (3) The trial court’s entry of summary judgment was not proper as there are numerous genuine issues of material fact that remain unresolved in the record; (4) The trial court erred in its legal conclusion that the defendant/appellee’s actions did not qualify as an “attempt to collect a debt” and;  (5) The actions of the appellant and the proof of the appellee did not meet the standard necessary to receive fees pursuant to section 559.77(2), Florida Statutes. 

As to the first issue, this Court finds the issue of discovery waived, since the appellant did not file a motion for continuance pursuant to Florida Rule of Civil Procedure 1.510(f).  As to the second issue, although the court did accept a copy of the refund check into evidence at the hearing, this Court finds that that evidence was not relevant to the issue in this case, i.e., whether or not Citibank was attempting to collect a debt. As such, this Court finds the error, if any,  harmless. As to the third issue, appellant argues that there were numerous genuine issues of material fact.  This argument is without merit.  First, since appellant did not file a motion to continue in order to complete discovery,  there a presumption that there are no genuine issues of material fact.  Second, the record itself clearly establishes that the ‘facts’ are not in dispute; the only issue left to resolve was the legal issue of whether or not Citibank’s actions qualified as an “attempt to collect a debt” pursuant to Florida Consumer collections Practices Act.  Next, appellant’s argument that the trial court erred in its legal conclusion that Citibank’s actions did not qualify as an attempt to collect a debt must also fail, since this Court finds, as did the court below, that none of the evidence supported a finding that Citibank attempted to collect a debt. The only evidence in this record are two letters from Citibank, apparently in response to an inquiry from the appellant.  Those letters simply stated the status of his account, as did the monthly statements. None of the correspondence from Citibank sought payment. Finally, with respect to the fifth issue, regarding fees, this Court finds that there was competent substantial evidence of record to support the trial court’s findings that the appellant’s action failed to raise a justiciable issue of law and fact under Florida Statute 559.72, as the appellee made no attempts to collect the subject charges from the appellant and the appellant was fully credited the subject charges. It is, therefore,

ORDERED and ADJUDGED that the ruling of the trial court be AFFIRMED.

 

DONE AND ORDERED in Chambers at New Port Richey, Pasco County, Florida this __ day of  July,  2006.                       

                                                                                    ________________________

                                                                                    W. Lowell Bray, Circuit Judge

                                                                                    Primary Appellate Judge

 

                                                                                   

                                                                                    ____________________

                                                                                    Daniel D. Diskey

                                                                                    Circuit Judge

 

                                                                       

                                                                                    _____________________

                                                                                    Stanley R. Mills

                                                                                    Circuit Judge

 

 

Copies furnished to:

County Judge William G. Sestak

Mark T. Tischhauser, Esq.

Louis M. Ursini III, Esq.