Bogus Fair Credit Billing DefenseTHE STATE OF NEW HAMPSHIRE
Rockingham Superior Court
PO Box 1258
Kingsron. NH 03848 1258
603 642-5256

THE STATE OF NEW HAMPSHIRE

ROCKINGHAM, SS. SUPERIOR COURT

CITIBANK (S. DAKOTA), N.A.
v.
PAUL G. ARG****

Docket No: 03 -C593

ORDER ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

On May 22, 2003, the plaintiff filed a breach of contract action against the defendant in the Derry District Court. It alleged that the defendant had failed to pay for credit extended to him by the plaintiff on his Master Card. Upon receipt of the Writ of Summons, the defendant removed the case to the Rockingham County Superior Court and demanded a jury trial.
The principal amount of the debt claimed by the plaintiff is $9,129.62.

Upon the case being filed here, the plaintiff filed a Motion for Summary Judgment. The motion alleged that there was no dispute as to the facts in the case and that it was entitled to a judgment as a matter of law. Attached to the motion was an affidavit signed by an employee of the plaintiff acknowledging that she had researched the defendant's account and determined that he had charged certain purchases on his Master Card for the purpose of obtaining goods and services, that credit was extended to the defendant by the plaintiff and that he refused to reimburse the plaintiff pursuant to his contract with Citibank.

The defendant objected to the plaintiff's Motion for Summary Judgment. First, he points to the fact that he alerted the plaintiff to what he termed a "billing error" by letter dated March l8, 2003. He argues that the letter was never responded to. Secondly, the defendant claims that he is not indebted to the plaintiff because it is the plaintiff that breached the contract that he had with Citibank. He claims that the plaintiff has never proven that it was "at risk" with respect to his credit card purchases. Therefore, the plaintiff has not suffered any monetary loss. On August 25, 2003, Judge Perkins of this court reviewed the plaintiff's Motion for Summary Judgment and the defendant's response. He issued the following order:
"Schedule the motion for hearing. It appears probable that the defendant's defense has no merit. If after hearing it is determined that the defendant is advancing a legal theory that has no merit, in bad faith, the Court will consider a legal fee and costs award to the plaintiff."

A hearing was held on the plaintiff's Motion for Summary Judgment before this Court on September 17, 2003. The Court gave the defendant ample opportunity to explain why he is not indebted to the plaintiff for failure to pay his credit card balance. The defendant offered some generalities as to credit card companies and how they operate. He did not specifically deny that he used his credit card to obtain goods and services from retailers nor did he deny that he failed to reimburse Citibank for those purchases. He offered no evidence to suggest that the balance due as- claimed by the plaintiff was inaccurate. His "billing error" letter of March 8, 2003 is completely unintelligible.

The defendant filed an affidavit from someone named Todd-Ellis; Swanson (sic) who is alleged to be a certified public accountant residing in Greenville, South Carolina. A review of this multi-paged document suggests that the affiant espouses "voodoo economics." If the subject matter were not so serious, the affidavit would have to be considered laughable. Its reasoning is akin to a current astronomer offering evidence to prove that the world is flat. The Court rejects the affidavit out-of-hand.

The plaintiff indicated to the Court that the defendant had been a Citibank customer for many years and had always paid his debt in a timely fashion. When asked to explain the defendant's decision to stop paying for his credit card expenditures, plaintiff's counsel stated that in the recent past some of its customers had used the same strained logic to avoid paying a legitimate debt. He referred to this group of individuals as "monetary protesters."

The evidence submitted to the Court suggests that the credit card procedure used in this case is similar to most other credit card procedures. The defendant went to several providers of goods and services and used his credit card to obtain those goods and services for which he received full benefit. When it came time to reimburse his credit card company, who had initially paid the retailers, the defendant refused to acknowledge the debt. Although he has had ample opportunity to raise a legitimate defense by claiming that he did not get the goods and services alleged to have been provided or that he in fact paid for those goods and services, he has been unable to produce any evidence to refute the debt.
The Court therefore concludes that the defendant has acted in bad faith in this case.

If the defendant used his credit card to obtain goods, never intending to repay the plaintiff, then in fact he has committed a crime. RSA 637:3 provides, "A person commits theft if he obtains or exercises unauthorized control over the property of another with a purpose to deprive him thereof."-

Upon review of all of the pleadings in this case, and as a result of the hearing held, the Court GRANTS the plaintiff's Motion for Summary Judgment. It finds and rules that the primary debt is $9,129.62. The plaintiff submitted an affidavit and request that it be awarded attorney fees as a result of the defendant's bad faith, and the Court finds the award suggested by the plaintiff is more than fair. The amount sought is $1,137.50. The plaintiff also is entitled to be reimbursed for the expenses of filing the lawsuit and to interest. Those additions bring the amount of the debt to $10,452.75.

In addition to said amount, the Court finds that because of the defendant's bad faith, plaintiff's counsel is entitled to be reimbursed for having to travel from his office in White River Junction, Vermont, to the Rockingham County Superior Court for a hearing on the motion. The Court adds the sum of $750 in attorney fees for that unnecessary expense. Accordingly, the Court finds and rules that the defendant is currently indebted to the plaintiff in the total sum of $11,202.75.

The plaintiff has two options if it wishes to satisfy its judgment in full. It can either levy on any assets that the defendant has in New Hampshire or it can file a motion with the Court requesting that a hearing be held to- determine the defendant's ability to pay the debt. Should such a hearing be necessary, the defendant will be required to file an affidavit with the Court with a complete listing of his assets and liabilities, after which the Court will determine how the debt is to be paid.

So ordered.

September 22, 2003
KENNETH R. McHUGH, Presiding Justice