No.

A-1313-10T3
Superior Court of New Jersey

LVNV Funding, L.L.C. v. Colvell

421 N.J. Super. 1 (N.J. Super. 2011) •
22 A.3d 125
Decided Jul 12, 2011

No. A-1313-10T3. balance, and identify all transactions and credits,

as well as the periodic rates, the balance on which
Submitted June 8, 2011.
the finance charge is computed, other charges, if
Decided July 12, 2011. any, the closing date of the billing cycle, and the
new balance. We also conclude that the trial court
On appeal from Superior Court of New Jersey,
erred by failing to afford defendant the oral
Law Division, Special Civil Part, Mercer County,
argument she requested.
2 Docket No. DC-005585-10. *2
LVNV is a credit agency, which purchased a
Before Judges PAYNE, BAXTER and KOBLITZ.
portfolio of debt from Citibank on January 10,
3 *3
2008, which included Colvell's MasterCard
Mary B. Colvell, appellant pro se. account. After purchasing the account from
Citibank, all ownership rights were assigned to
Eichenbaum Stylianou, L.L.C., attorneys for
LVNV, including the right to collect the balance
respondent ( John Brigandi, on the brief).
owed, plus any interest accrued at the rate
The opinion of the court was delivered by specified.

In its complaint, LVNV alleged that defendant was

KOBLITZ, J.S.C. (temporarily assigned). indebted to LVNV in the amount of $12,060.75,
Defendant Mary B. Colvell appeals from an entry including interest, service charges, costs and
of summary judgment on July 22, 2010, in favor attorney fees, which defendant had agreed to pay
of plaintiff LVNV Funding, L.L.C. (LVNV), a in her MasterCard agreement. LVNV claimed that
collection agency that was assigned a $12,060.75 4 demand *4 for payment had "been made and gone
balance she purportedly owed on her Citibank without heed." In her answer, defendant denied all
Sears Gold MasterCard (MasterCard), and denial of LVNVs allegations.
of reconsideration on September 29, 2010. After LVNV sent defendant interrogatories. She
reviewing the record in light of the contentions responded to essentially every question by saying
advanced on appeal, we reverse and remand, that she was "not aware of any written agreements
concluding that the proofs submitted by LVNV or contracts with LVNV." She also stated that she
were insufficient to grant summary judgment. In "did not receive billing statements from
particular, when suing to collect the balance [p]laintiff," and that she "made no agreements
allegedly owed on an unpaid revolving credit card with [p]laintiff to resolve alleged indebtedness." A
account, the creditor must prove more than merely trial date was set for August 31, 2010.
the total amount remaining unpaid. Instead, as
required to obtain a default judgment by Rule 6:6-
3(a), the creditor must set forth the previous

1
 LVNV Funding, L.L.C. v. Colvell 421 N.J. Super. 1 (N.J. Super. 2011)

On July 6, 2010, LVNV filed a motion for [N]o motion shall be listed for oral
summary judgment in the Special Civil Part argument unless a party requests oral
attaching a copy of a computer-generated report, argument in the moving papers or in
which was intended to contain defendant's timely-filed answering or reply papers, or
personal information, balances, credits and unless the court directs. A party requesting
payments made, current balance, finance charge oral argument may, however, condition the
rate and annual percentage rate. The information request on the motion being contested. If
on this form was not complete as it did not list any the motion involves pretrial discovery or is
transactions made by defendant or the billing directly addressed to the calendar, the
cycle information, and it listed the annual request shall be considered only if
percentage and finance charge rates as zero. Upon accompanied by a statement of reasons and
receiving initial notice of the motion for summary shall be deemed denied unless the court
judgment, defendant filed opposition to the otherwise advises counsel prior to the
motion, requesting oral argument. return day. As to all other motions, the
request shall be granted as of right.
The trial court did not grant oral argument and
granted summary judgment to LVNV on July 22, Rule 6:3-1 provides that the "Part IV Rules"
2010, when a judgment against defendant in the governing the procedures in civil actions applies
amount of $12,121.22 was also entered. The court to the Special Civil Part except in nine enumerated
denied defendant's motion for reconsideration, circumstances. Oral argument is not one of these
stating in pertinent part that defendant never once exceptions, and thus Rule 1:6-2(d) applies.
denied having the MasterCard debt. After Accordingly, the trial court should have granted
defendant appealed, pursuant to Rule 2:5-1(b), the defendant's request for oral argument because
court issued a supplemental statement of reasons summary judgment is a substantive motion
for granting summary judgment, repeating that involving significant legal issues. See Raspantini
defendant did not deny owing a debt on the v. Arocho, 364 N.J.Super. 528, 531, 837 A.2d 417
MasterCard, and stating that evidence sufficient to (App.Div. 2003); Filippone v. Lee, 304 N.J.Super.
enter default judgment under Rule 6: 3 was 301, 306, 700 A.2d 384 (App.Div. 1997).
presented by LVNV.
Where, as here, the trial court decides the motion
I on the papers despite a request for oral argument,
the trial court should set forth in its opinion its
Defendant raises many issues in her brief and
reasons for disposing of the motion for summary
supplemental brief, only two of which we find
judgment on the papers in its opinion. See Great
merit discussion. See R. 2:11-3(e)(1)(E).
Atl. Pac. Tea Co., Inc. v. Checchio, 335 N.J.Super.
Defendant contends that oral argument should
495, 497-98, 762 A.2d 1057 (App.Div. 2000). The
5 have *5 been held by the court prior to granting
trial court did not address defendant's request for
summary judgment. We agree with defendant that
oral argument in its opinion. In Great Atlantic, we
oral argument should have been permitted by the
reversed summary judgment where the trial court
court because the motion did not involve a
did not conduct oral argument, which was
discovery or calendar issue. R. 1:6-2(d).
requested by the moving party, because we did not
Rule 1:6-2(d) governing oral argument on motions find any basis for a relaxation of Rule 1:6-2, and
in civil cases provides, in relevant part: the trial court did not provide any basis in the
record. Ibid. We need not consider whether the
denial of oral argument in itself warrants reversal,
given that we find a reversal is required on other

2
 LVNV Funding, L.L.C. v. Colvell 421 N.J. Super. 1 (N.J. Super. 2011)

grounds. See Spina Asphalt Paving Excavating If the plaintiffs claim against a defendant is
6 Contractors, *6 Inc. v. Fairview, 304 N.J.Super. for a sum certain or for a sum that can by
425, 427 n. 1, 701 A.2d 441 (App.Div. 1997) computation be made certain, the clerk on
(where denial of oral argument on a summary request of the plaintiff and on affidavit
judgment motion did not result in a reversal). setting forth a particular statement of the
items of the claim, the amounts and dates,
II the calculated amount of interest, the
A trial court's grant of a motion for summary payments or credits, if any, the net amount
judgment is appropriate when there is no issue of due, and the name of the original creditor
material fact. See R. 4:46-2(c). We review a grant if the claim was acquired by assignment,
of summary judgment de novo, applying the same shall enter judgment for the net amount
standard governing the trial court under Rule 4:46. and costs against the defendant[.]
Liberty Surplus Ins. Corp. v. Nowell Amoroso,
7 *7
P.A., 189 N.J. 436, 445-46, 916 A.2d 440 (2007).
Generally, we must "consider whether the ....
competent evidential materials presented, when
viewed in the light most favorable to the non- If plaintiffs records are maintained
moving party, are sufficient to permit a rational electronically and the claim is founded on
factfinder to resolve the alleged disputed issue in an open-end credit plan as defined in 15
favor of the non-moving party." Brill v. Guardian U.S.C. § 1602(i) and 12 C.F.R. § 226.2(a)
Life Ins. Co. of Am., 142 N.J. 520, 540, 666 A.2d (20), a copy of the periodic statement for
146 (1995); see also R. 4:46-2(c). the last billing cycle as prescribed by 15
U.S.C. § 1637(b) and 12 C.F.R. § 226.7, or
Defendant argues that LVNVs computer generated a computer-generated report setting forth
report did not sufficiently meet the requirement set the previous balance, identification of
forth in Rule 6:6-3 governing default judgments transactions and credits, if any, periodic
because it does not contain any identification of rates, balance on which the finance charge
transactions or credits in support of the balance is computed, the amount of the finance
listed. Although the Rule does not generally apply charge, the annual percentage rate, other
in a summary judgment situation, we agree with charges, if any, the closing date of the
the trial court that Rule 6:6-3(a) provides a guide billing cycle, and the new balance, if
to the proofs necessary to grant summary attached to the affidavit, shall be sufficient
judgment in a credit card collection matter. to support the entry of judgment.
Rule 6:6-3(a) provides required forms of proof, In support of its motion for summary judgment,
consistent with federal regulations for credit card LVNV submitted a certification of proof and
account periodic billing statements. See 15 U.S.C. ownership of defendant's account, as well as a
§ 1637(b); 12 CF.R. § 226.7; see also Pressler computer-generated report. An authorized
Verniero, Current N.J. Court Rules, comment on representative of LVNV certified that she had
R. 6:6-3(a) (2011). Rule 6:6-3(a) provides, in personal knowledge of LVNVs "creation and
relevant part: maintenance of its normal business records,
including computer records of its credit accounts,"
and that Citibank extended credit to defendant on
March 1, 1998, and subsequently sold defendant's
account to LVNV on January 10, 2008. The
computer-generated statement contained

3
 LVNV Funding, L.L.C. v. Colvell 421 N.J. Super. 1 (N.J. Super. 2011)

defendant's name, address, account number, Although defendant does not allege that she did
previous balance and new balance. The statement not use this card or hold this account, LVNV does
indicated that defendant did not have any credits not meet the requirements set forth in federal law
and that the finance charge percentage rate, annual and repeated in Rule 6:6-3(a). To collect on a
percentage rate and other fees were zero. The only revolving credit card debt, LVNV is required to
transaction listed on the statement was LVNVs provide the transactions for which payment has
purchase of the account. Where the statement 8 not been made, any payments *8 that have been
provided for the closing date of the billing cycle, it made, the annual percentage and finance charge
read, "Not Applicable." percentage rates and the billing cycle information.
R. 6:6-3(a). Here, LVNV did not provide any
The computer-generated statement does not
documentation regarding the original MasterCard
comply with Rule 6:6-3(a) because it does not
transactions by defendant other than the account
specify any transactions comprising the debt owed
number and the alleged balance.
by defendant. Additionally, and incredibly, a zero
"Finance Charge Percentage Rate" and a zero Reversed.
"Annual Percentage Rate" are reflected. The
"Closing Date of Billing Cycle" is described as
"Not Applicable."