Preview
13-CV-23-142
Filed in District Court
State of Minnesota
3/3/2023 11:42 PM
CONSUMER CREDIT CONTRACT
STATE OF MINNESOTA DISTRICT COURT
COUNTY OF CHISAGO TENTH JUDICIAL DISTRICT
Discover Bank
MEMORANDUM OF PLAINTIFF
IN SUPPORT OF THE SUMMARY
Plaintiff,
JUDGMENT MOTION
VS.
Court File No. 13-CV23142
Mitchel D Josephson The Honorable Catherine A. Trevino
Defendant(s)
ISSUE
Is Plaintiff entitled to summary judgment because Defendant(s) failed to raise any genuine issues 0f
material fact?
DOCUMENTS
Pleadings
1. Summons, Complaint; and
2. Answer.
Declarations
1. Declaration of Plaintiff's Attorney with Exhibit:
1. Plaintiffs Discovery.
STATEMENT OF FACTS
Plaintiff moves this Court for summary judgment against Defendant(s). Defendant(s) owe(s)
Plaintiff payment for goods and services charged. Plaintiff brings this Motion based upon the pleadings,
declarations, and exhibits referenced above. To date, Defendant(s) has/have failed to answer Plaintiffs
discovery, which includes requests for admission. (Attorney Decl. Exhibit 1). According to the
Minnesota Rules of Civil Procedure, the Requests for Admission are deemed admitted.
Page 1 of 4
MN_0750 File No: 22-126184
13-CV-23-142
Filed in District Court
State of Minnesota
3/3/2023 11:42 PM
Based on Defendant('s') admissions, Defendant(s) applied for the extension of credit.
Defendant(s) was/were extended credit under account number ending in XXXXXXXXXXXX5095 and
defaulted in making payments. (Attorney Decl. Exhibit 1). By using the Account, Defendant(s) agreed
to be bound by the terms and conditions. Defendant(s) used the Account to purchase goods and services
that were sold and delivered to Defendant(s) for which a principal balance of $10,170.11 currently
remains unpaid. Id. Defendant(s) failed to make the required minimum monthly payments on the
Account, defaulted under the Contract, and is liable for the outstanding balance and costs incurred by
Plaintiff to enforce the terms of the Contract. Id. The totality of these pleadings and documents show
that no genuine issue of material fact exists and that Plaintiff is entitled to judgment as a matter of law.
LEGAL ARGUMENI
This case is ripe for summary judgment because no genuine issues of material fact exist and this
Court will avoid unnecessary litigation by granting summary judgment in favor of Plaintiff. A party may
move for summary judgment, and the court shall grant summary judgment if the movant shows that
there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of
law. Minn. R. Civ. 56. A party asserting that there is no genuine issue as to any material fact must
support the assertion by citing to particular parts of material in the record, including depositions,
documents, electronically stored information, affidavits, stipulations, admissions, interrogatory answers
or other materials. Minn. Civ. R. 56.03(a)(1). Thus, a motion for summary judgment shall be granted if
based on the complete record no issue of material fact exists and the movant is entitled to summary
judgment as a matter of law. Minn. R. Civ. P. 56.03; Bixler by Bixler v. J.C. Penney C0., 376 N.W.2d
209, 215 (Minn. 1985). A genuine issue of material fact "must be established by substantial evidence."
DLH, Inc. v. Russ, 566 N.W.2d 60, 6970 (Minn. 1997) (citing Murphy v. Country House, Ina, 240
N.W.2d 507, 512 (Minn. 1976). Further, no genuine issue of material fact exists "when the nonmoving
party presents evidence which merely creates a metaphysical doubt as to a factual issue and which is not
Page 2 of 4
MN_0750 File No: 22-126184
13-CV-23-142
Filed in District Court
State of Minnesota
3/3/2023 11:42 PM
sufficiently probative with respect to an essential element of the nonmoving party's case to permit
reasonable persons to draw different conclusions." Russ, 566 N.W.2d at 71.
Defendant(s) Accepted a Credit Card.
Credit card accounts are governed by the Consumer Credit Protection Act. 15 U.S.C. § 1601 er
seq. The Act provides that an "accepted credit card" means any credit card that the cardholder requested
and received, signed, authorized another to use, or used for the purpose of obtaining money, property,
labor, or services on credit. Id. § 1602(m). Here, Defendant(s) was/were issued the credit card Account
and used and made payments on the Account as denoted in the monthly account statements.
Defendant(s) willingly accepted the Account and was required to make minimum payments in
accordance with the Contract terms. However, Defendant(s) failed to make the required payments,
causing the Account to default.
Defendant('s') Actions Created an Account Stated.
Defendant(s) is/are also liable under the doctrine of account stated. When a debtor receives a
detailed billing statement, retains the statement without questioning its correctness, and also promises to
pay it, the debtor gives the bill the standing of an account stated. Kenyon C0. v. Johnson, 144 Minn. 48,
51, 174 N.W. 436, 437 (1919); Am. Druggist Ins. v. Thompson Lumber Co, 349 N.W.2d 569, 573
(Minn. Ct. App. 1984). While merely sending the account statement to the debtor does not establish
assent, generally the debtor's failure to protest for an unreasonably long time creates manifestation of
assent. W. Newspaper Union v. Segerstrom Piano Mfg. Co., 136 N.W. 752, 754 (Minn. 1912); Am.
Druggist, 349 N.W.2d at 573.
Defendant(s) was/were provided detailed monthly billing statements. Defendant(s) retained these
statements without dispute. Defendant(s) continued to use the Account and affirmatively made payments
on the Account before defaulting. Because Defendant(s) retained the statements without question for
more than a reasonable time, and continued to use the Account without dispute, Defendant(s) assented to
the billing statements, which created an account stated.
Page 3 of 4
MN_0750 File N0: 22-126184
13-CV-23-142
Filed in District Court
State of Minnesota
3/3/2023 11:42 PM
Requests for Admission are Deemed Admitted.
Plaintiff served discovery upon Defendant(s), which included requests for admission. Regarding
matters of admission, Rule 36.01 of the Minnesota Rules of Civil Procedure states that a "[m]atter is
admitted unless within 30 days after service of the request" the party returns a written answer or
objection signed by the party or the party's attorney. Because Defendant(s) failed to answer the requests
for admission, they are deemed admitted. Therefore, it is conclusively established that Defendant(s) held
the Account, made purchases and payments on the Account, defaulted on the Account, and is liable for
the remaining balance.
CONCLUSION
Summary judgment should be granted in Plaintiffs favor because Defendant(s) accepted a credit
card, assented to the balance depicted in the monthly billing statements, and retained the benefits of the
Account. Defendant('s') admissions prove Plaintiff's claim against Defendant(s). Thus, Plaintiff
respectfully requests that the Court grant its Motion for Summary Judgment.
5+
Dated: This I day of MMA ,2023
MESSERLI & KRAMER PA
D Brian A". Chou, #0332124
D Jefferson C. Pappas, #03 04943
D Jillian N. Walker, #03 88575
D Stephanie S. Lamphere, #0396794
E] Alieia M. Westerhoff, #0398577
Marcus S. Boston, #0401167
D Craig P. Henderson, #0402194
D Stephen M. Kaminsky, #0402966
cc-litigation@messerlikramer.com
3033 Campus Drive, Ste. 250
Plymouth, MN 55441
Ph#: (763) 5487900
Fax#: (763) 548-7922
Page 4 of 4
MNKO750 File N0122126l84
Preview
13-CV-23-142 Filed in District Court State of Minnesota 3/3/2023 11:42 PM CONSUMER CREDIT CONTRACT STATE OF MINNESOTA DISTRICT COURT COUNTY OF CHISAGO TENTH JUDICIAL DISTRICT Discover Bank MEMORANDUM OF PLAINTIFF IN SUPPORT OF THE SUMMARY Plaintiff, JUDGMENT MOTION VS. Court File No. 13-CV23142 Mitchel D Josephson The Honorable Catherine A. Trevino Defendant(s) ISSUE Is Plaintiff entitled to summary judgment because Defendant(s) failed to raise any genuine issues 0f material fact? DOCUMENTS Pleadings 1. Summons, Complaint; and 2. Answer. Declarations 1. Declaration of Plaintiff's Attorney with Exhibit: 1. Plaintiffs Discovery. STATEMENT OF FACTS Plaintiff moves this Court for summary judgment against Defendant(s). Defendant(s) owe(s) Plaintiff payment for goods and services charged. Plaintiff brings this Motion based upon the pleadings, declarations, and exhibits referenced above. To date, Defendant(s) has/have failed to answer Plaintiffs discovery, which includes requests for admission. (Attorney Decl. Exhibit 1). According to the Minnesota Rules of Civil Procedure, the Requests for Admission are deemed admitted. Page 1 of 4 MN_0750 File No: 22-126184 13-CV-23-142 Filed in District Court State of Minnesota 3/3/2023 11:42 PM Based on Defendant('s') admissions, Defendant(s) applied for the extension of credit. Defendant(s) was/were extended credit under account number ending in XXXXXXXXXXXX5095 and defaulted in making payments. (Attorney Decl. Exhibit 1). By using the Account, Defendant(s) agreed to be bound by the terms and conditions. Defendant(s) used the Account to purchase goods and services that were sold and delivered to Defendant(s) for which a principal balance of $10,170.11 currently remains unpaid. Id. Defendant(s) failed to make the required minimum monthly payments on the Account, defaulted under the Contract, and is liable for the outstanding balance and costs incurred by Plaintiff to enforce the terms of the Contract. Id. The totality of these pleadings and documents show that no genuine issue of material fact exists and that Plaintiff is entitled to judgment as a matter of law. LEGAL ARGUMENI This case is ripe for summary judgment because no genuine issues of material fact exist and this Court will avoid unnecessary litigation by granting summary judgment in favor of Plaintiff. A party may move for summary judgment, and the court shall grant summary judgment if the movant shows that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. Minn. R. Civ. 56. A party asserting that there is no genuine issue as to any material fact must support the assertion by citing to particular parts of material in the record, including depositions, documents, electronically stored information, affidavits, stipulations, admissions, interrogatory answers or other materials. Minn. Civ. R. 56.03(a)(1). Thus, a motion for summary judgment shall be granted if based on the complete record no issue of material fact exists and the movant is entitled to summary judgment as a matter of law. Minn. R. Civ. P. 56.03; Bixler by Bixler v. J.C. Penney C0., 376 N.W.2d 209, 215 (Minn. 1985). A genuine issue of material fact "must be established by substantial evidence." DLH, Inc. v. Russ, 566 N.W.2d 60, 6970 (Minn. 1997) (citing Murphy v. Country House, Ina, 240 N.W.2d 507, 512 (Minn. 1976). Further, no genuine issue of material fact exists "when the nonmoving party presents evidence which merely creates a metaphysical doubt as to a factual issue and which is not Page 2 of 4 MN_0750 File No: 22-126184 13-CV-23-142 Filed in District Court State of Minnesota 3/3/2023 11:42 PM sufficiently probative with respect to an essential element of the nonmoving party's case to permit reasonable persons to draw different conclusions." Russ, 566 N.W.2d at 71. Defendant(s) Accepted a Credit Card. Credit card accounts are governed by the Consumer Credit Protection Act. 15 U.S.C. § 1601 er seq. The Act provides that an "accepted credit card" means any credit card that the cardholder requested and received, signed, authorized another to use, or used for the purpose of obtaining money, property, labor, or services on credit. Id. § 1602(m). Here, Defendant(s) was/were issued the credit card Account and used and made payments on the Account as denoted in the monthly account statements. Defendant(s) willingly accepted the Account and was required to make minimum payments in accordance with the Contract terms. However, Defendant(s) failed to make the required payments, causing the Account to default. Defendant('s') Actions Created an Account Stated. Defendant(s) is/are also liable under the doctrine of account stated. When a debtor receives a detailed billing statement, retains the statement without questioning its correctness, and also promises to pay it, the debtor gives the bill the standing of an account stated. Kenyon C0. v. Johnson, 144 Minn. 48, 51, 174 N.W. 436, 437 (1919); Am. Druggist Ins. v. Thompson Lumber Co, 349 N.W.2d 569, 573 (Minn. Ct. App. 1984). While merely sending the account statement to the debtor does not establish assent, generally the debtor's failure to protest for an unreasonably long time creates manifestation of assent. W. Newspaper Union v. Segerstrom Piano Mfg. Co., 136 N.W. 752, 754 (Minn. 1912); Am. Druggist, 349 N.W.2d at 573. Defendant(s) was/were provided detailed monthly billing statements. Defendant(s) retained these statements without dispute. Defendant(s) continued to use the Account and affirmatively made payments on the Account before defaulting. Because Defendant(s) retained the statements without question for more than a reasonable time, and continued to use the Account without dispute, Defendant(s) assented to the billing statements, which created an account stated. Page 3 of 4 MN_0750 File N0: 22-126184 13-CV-23-142 Filed in District Court State of Minnesota 3/3/2023 11:42 PM Requests for Admission are Deemed Admitted. Plaintiff served discovery upon Defendant(s), which included requests for admission. Regarding matters of admission, Rule 36.01 of the Minnesota Rules of Civil Procedure states that a "[m]atter is admitted unless within 30 days after service of the request" the party returns a written answer or objection signed by the party or the party's attorney. Because Defendant(s) failed to answer the requests for admission, they are deemed admitted. Therefore, it is conclusively established that Defendant(s) held the Account, made purchases and payments on the Account, defaulted on the Account, and is liable for the remaining balance. CONCLUSION Summary judgment should be granted in Plaintiffs favor because Defendant(s) accepted a credit card, assented to the balance depicted in the monthly billing statements, and retained the benefits of the Account. Defendant('s') admissions prove Plaintiff's claim against Defendant(s). Thus, Plaintiff respectfully requests that the Court grant its Motion for Summary Judgment. 5+ Dated: This I day of MMA ,2023 MESSERLI & KRAMER PA D Brian A". Chou, #0332124 D Jefferson C. Pappas, #03 04943 D Jillian N. Walker, #03 88575 D Stephanie S. Lamphere, #0396794 E] Alieia M. Westerhoff, #0398577 Marcus S. Boston, #0401167 D Craig P. Henderson, #0402194 D Stephen M. Kaminsky, #0402966 cc-litigation@messerlikramer.com 3033 Campus Drive, Ste. 250 Plymouth, MN 55441 Ph#: (763) 5487900 Fax#: (763) 548-7922 Page 4 of 4 MNKO750 File N0122126l84