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Capital One Bank, USA NA v. Summers

Capital One Bank, USA NA v. Summers

CONSUMER CREDIT:

$10,910

Case name: Capital One Bank, USA NA v. Summers

Case number: Circuit court nos. 2008SC440, 2008CV242; Court of Appeals nos. 2009AP1337, 2009AP1338

Court: Green Lake County Circuit Court

Judge: William M. McMonigal

Original amount sought: $3,155 on the small claims action; $7,755 on the large claims action

Verdict/settlement: Verdicts on summary judgment

Outcome: Summary affirmance by the Court of Appeals

Verdict/settlement date: May 26, 2010

Original filing date: May 22, 2009

Plaintiff/respondent attorney: Paul H. Thielhelm, Kevin T. White, Kohn Law Firm SC, Milwaukee

Defendant/appellant attorney: Gary W. Thompson, Thompson Law Offices SC, Milwaukee

Plaintiff counsel’s summary of case: Capital One brought two separate actions against Eugene Summers, one in large claims and the other in small claims, seeking judgments for amounts due on his credit card accounts after he defaulted.

Capital One sought summary judgment in both cases. In those motions, it relied upon affidavits from a Capital One employee that included account statements showing the status of the accounts from a zero balance to the amounts in litigation. Summers countered that Capital One had not complied with the Wisconsin Consumer Act at Sec. 425.109(2), which requires that upon a defendant/customer’s written request, the plaintiff/creditor must submit copies of the “writings evidencing any transaction” upon which the creditor’s claim is based. Summers argued that Capital One should also be required to submit the credit card agreements and other information regarding the accounts’ terms.

The circuit court concluded in the large claims case that the statute only required Capital One to provide account statements covering the period during which the balance had accrued. Further, Summers offered no evidence to support his argument that Capital One’s claims fell outside the terms of his credit card agreement, and there was no evidence that Summers disputed any of the charges or statements. Therefore, the court granted summary judgment. Summary judgment was subsequently granted in the small claims case as well, after Summers failed to appear at an adjourned hearing date.

The Wisconsin Court of Appeals, Dist. II, consolidated the appeals and summarily affirmed both judgments. The court wrote, “Summers attempt to expand the definition of ‘writings’ in sec. 425.109(2) to include all documents relating to the creation of the account, including its terms and conditions, is inconsistent with Newgard [v. Bank of America, 2007 WI App 161]. The court additionally wrote that the statements submitted by Capital One fulfilled the goal of sec. 425.109(2): to provide the debtor with all the information necessary to determine how the creditor computed the amount due. Summers did not dispute that these were his credit card accounts or that he made the purchases and transactions detailed on the statements.

The case offers persuasive authority regarding the issue of the “writings evidencing” requirement, which has long been in dispute between debtor and creditor counsel.

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