Motion-Secondary: AFFINITY PLUS FEDERAL CREDIT UNION vs Aggrey Kwame

On November 20, 2023 a Motion-Secondary was filed involving a dispute between Affinity Plus Federal Credit Union, and Kwame, Aggrey, for Consumer Credit Contract in the District Court of Ramsey County.

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62-CV-23-6188
Filed in District Court
State of Minnesota
11/20/2023 2:59 AM

CONSUMER CREDIT CONTRACT

STATE OF MINNESOTA DISTRICT COURT

COUNTY OF RAMSEY SECOND JUDICIAL DISTRICT

MEMORANDUM OF PLAINTIFF
Afﬁnity Plus Federal Credit Union IN SUPPORT OF THE SUMMARY
Plaintiff,
JUDGMENT MOTION
VS. Court File No.

Aggrey Kwame
Defendant(s)

ISSUE

Is Plaintiff entitled to summary judgment against Defendant where Defendant failed to
raise any genuine
a matter of law?
issues of material fact and the record establishes that Plaintiff is entitled judgment
to as

RECORD

I. Pleadings

l. Summons and Complaint; and
2. Answer.

II. Declarations

l. Declaration of Plaintiff with Exhibit:

A. Billing Statements.

INTRODUCTION

Afﬁnity Plus Federal Credit Union (Plaintiff) moves this Court for summary judgment against
for outstanding balance due on a
Aggrey Kwame (Defendant). Defendant(s) owe(s) Plaintiff payment

credit account. Plaintiff brings this Motion based upon the pleadings, declarations, and exhibits

referenced above. These pleadings and documents demonstrate that no genuine issues of material
fact

exist and that Plaintiff is entitled to judgment as a matter of law.

FACTS

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File No: 23-112610
MN_0754
62-CV-23-6188
Filed in District Court
State of Minnesota
11/20/2023 2:59 AM

Defendant applied for and was issued a credit account bearing an account number ending in

XXXXXXXXXXXX8529. (P1. Aff. ﬂ Ex. A) Defendant used the card to make purchases and/0r take
cash advances. (P1. Aff. 11
EX. A)
Defendant was required to make payments as set forth in the billing statements pursuant to the

terms. However, Defendant failed to make the required payments and thereby defaulted under the terms.

(Pl. Aff. 1] Ex. A) As a result, an outstanding principal balance of $5,482.81, plus interest and fees if

applicable, remain owing. (Pl. Aff. ll Ex. A)

Plaintiff commenced this action on June 10, 2023, by service of the summons and complaint

issues of material fact
upon Defendant. Defendant answered Plaintiff's complaint. Because no genuine

exist, Plaintiff now moves the Court for summary judgment in its favor.

SUMMARY JUDGMENT STANDARD

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. Rule 56.03

of the Minnesota Rules of Civil Procedure provides the following standard for granting summary

judgment: "Judgment shall be rendered forthwith if the pleadings, depositions, answers to

interrogatories, and admissions on ﬁle, together with the afﬁdavits, if any, show that there is no genuine

issue as to any material fact and that either party is entitled to a judgment as a matter of law." Thus, a

motion for summary judgment shall be granted if, based on the complete record, no genuine 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 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, 69-70 (Minn. 1997)

(citing Murphy v. Country House, Ina, 240 N.W.2d 507, 512 (Minn. 1978)). 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 sufﬁciently probative with respect
to an

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MN_0754 File No: 23-112610
62-CV-23-6188
Filed in District Court
State of Minnesota
11/20/2023 2:59 AM

essential element of the nonmoving party's case to permit reasonable persons to draw different

conclusions." Russ, 566 N.W.2d at 71.

ARGUMENT

I. Defendant is Liable to Plaintiff Pursuant to the Terms.

A. Defendant Accepted credit and Breached the Obligation t0 Repay According t0 the
Terms.

Defendant is liable under contract principles. For there to be an enforceable contract, there must

be an offer by one party and acceptance by the other party. St. Paul Fire & Marine Ins. C0. v. Bierwerl'h,

175 N.W.2d 136, 141 (Minn. 1969). There must be mutual assent to make the contract enforceable,

which can be expressed in words or demonstrated by conduct. Benedict v. Pfunder, 237 NW. 2, 4

(Minn. 1931). When a contract is unambiguous, a court gives effect to the parties' intentions as

expressed in the four corners of the instrument and clear, plain and unambiguous terms are conclusive of

that intent. Knudsen v. Transp. Leasing/Contract, Inc, 672 N.W.2d 221, 223 (Minn. Ct. App. 2003).

Here, Defendant's acceptance of the terms is evinced by Defendant's use of the account.

In addition to offer and acceptance, there must be consideration in order to form an enforceable

contract. Consideration requires the voluntary assumption of an obligation by one party upon the

condition of an act of forbearance by the other party. Baehr v. Penn-O-Tex Oil Com, 104 N.W.2d 661,

665 (Minn. 1960). Defendant was extended credit, contingent upon Defendant's compliance with the

terms. Thus, there was consideration sufﬁcient to create an enforceable contract.

Defendant failed to pay the payments when due and as required. As a result, Defendant breached

the agreement and is liable for damages in the amount stated in the Complaint.

B. Defendant is Alternatively Liable to Plaintiff Under Equitable Principles 0f Quasi-
Contract and Unjust Enrichment.

Plaintiff is alternatively entitled to damages pursuant to the unjust enrichment doctrine. A

distinction exists between an actual contract and a quasi-contract. Lundstrom Constr. C0. v. Dygert, 94

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MN_0754 File No: 23-112610
62-CV-23-6188
Filed in District Court
State of Minnesota
11/20/2023 2:59 AM

N.W.2d 527, 533 (Minn. 1959). Quasi-contracts are not contracts in the legal sense. Mjolsness v.

Mjolsness, 363 N.W.2d 839, 842 (Minn. Ct. App. 1985). While the court may impose a quasi-contract

regardless of the parties' intentions, it is used only when the failure to do so would result in unjust

enrichment. Stemmer v. Estate of Sarazz'n, 362 N.W.2d 406, 408 (Minn. Ct. App. 1985); see also In re

Estate ofJache, 271 N.W. 452, 45253 (Minn. 1937) (holding that when there is no proof of a promise,

the courts will imply a promise to avoid unjust enrichment).

The essential elements of a quasi-contract are: (1) a beneﬁt conferred on the defendant by the

plaintiff, (2) appreciation of that beneﬁt by the defendant, and (3) acceptance and retention of that

beneﬁt by the defendant under such circumstances that it would be inequitable to retain the beneﬁt

without paying its value. Acton Constr. C0. v. State, 383 N.W.2d 416, 417 (Minn. Ct. App. 1986);

Weber v. Goetzke, 371 N.W.2d 611, 615 (Minn. Ct. App. 1985).

To establish a claim for unjust enrichment, the claimant must show that the defendant knowingly

received something of value for which the defendant "in equity and good conscience" should pay.

ServiceMaster of St. Cloud v. GAB Bus. Servs. Ina, 544 N.W.2d 302, 306 (Minn. 1996); see also Brand

& Co. v. Williams, 13 N.W. 42, 42 (Minn. 1882) (holding that unjust enrichment is implied from having

another's money, which in equity and good conscience must be returned); Anderson v. DeLz'sle, 352

N.W.2d 794, 796 (Minn. Ct. App. 1984) (holding that an action for unjust enrichment may be based on

situations where it would be morally wrong for one party to enrich himself at the expense of another).

Here, a beneﬁt was conferred upon Defendant, which was accepted, used and retained.

Defendant failed to repay after retaining the beneﬁt that was acquired through acceptance of the credit.

If Defendant is permitted to retain the beneﬁts without payment, Defendant will be unjustly enriched.

II. Defendant Failed to Raise a Genuine Issue 0f Material Fact or a Valid Affirmative Defense.

A. Defendant Failed to Raise a Genuine Issue of Material Fact.

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MN_0754 File N0: 23-112610
62-CV-23-6188
Filed in District Court
State of Minnesota
11/20/2023 2:59 AM

A non-moving party cannot rely upon mere averments to create genuine issues of material fact.

Minn. R. CiV. P. 56.05; see also Hum' v. IBMMidAm. Emps. Fed. Credit Union, 384 N.W.2d 853, 885

at trial are not
(Minn. 1986). "Speculation, general assertions, and promises to produce evidence

sufﬁcient to create a genuine issue of material fact for trial." Nicollez' Restoration v. Cit); of St. Paul, 533

N.W.2d 845, 848 (Minn. 1995). Plaintiff has produced the account documentation in support of its

claim. Defendant has neither produced any evidence to negate the proof put forth by Plaintiff nor

produce any documentation or evidence upon which a meritorious dispute
of Plaintiff's claim could be

based. Accordingly, summary judgment in Plaintiff's favor is proper.

B. Defendant Failed to Raise and Support a Valid Afﬁrmative Defense.

The burden of establishing an afﬁrmative defense is on the party pleading it. MacRae v. Grp.

Health Plan, Ina, 753 N.W.2d 711, 716 (Minn. 2008). A defendant must produce facts in support of his

Bush v. Lakeﬁelcl, 399 N.W.2d
pleadings. See Rosvall v. Provost, 155 N.W.2d 900, 904 (Minn. 1968);

169, 172 (Minn. Ct. App. 1987). Here, Defendant has not raised and supported any
afﬁrmative defenses.

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MN~0754 File N0123112610
62-CV-23-6188
Filed in District Court
State of Minnesota
11/20/2023 2:59 AM

CONCLUSION

favor because credit was issued to Defendant,
Summary judgment should be granted in Plaintiffs

the beneﬁts without payment.
Defendant defaulted upon the obligation to repay, and Defendant retained

The evidence produced by Plaintiff demonstrates that Defendant is liable to
Plaintiff for the amount prayed

for in the complaint. Thus, based on the proof of Plaintiff's claim, the totality
of the record in support of this

issues of fact or defenses, Plaintiff respectfully
motion, and Defendant's failure to raise any meritorious

for summary judgment.
requests that the Court grant its motion

MESSERLI & KRAMER PA
"Mi/V / H9503:
Date: ///&/&/
D Brian A. Chou, #0332124
D Jefferson C. Pappas, #0304943
D Jillian N. Walker, #0388575
D Stephanie S. Lamphere, #0396794
M. Westerhoff, #0398577
Egiciaarcus S. Boston, #0401167
D Craig P. Henderson, #0402194
E] Stephen M. Kaminsky, #0402966
cc-litigation@messerlikramer.com
3033 Campus Drive, Ste. 250
Plymouth, MN 55441
Ph#: (763) 548-7900
Fax#: (763) 548-7922

Page 6 of 6
File No: 23-112610
MN_0754

Case Info

Judge

Guthmann, John Track Judge’s New Case

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Document Filed Date

November 20, 2023

Case Filing Date

November 20, 2023

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Motion-Secondary: AFFINITY PLUS FEDERAL CREDIT UNION vs Aggrey Kwame

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