OFFICE OF THE CLERK, WISCONSIN COURT OF APPEALS
Creditor Counsel: Kohn Law Firm S.C.
Debtor Counsel: Gary Thompson, Thompson Law Offices, S.C.
You are hereby notified that the Court has entered the following opinion and order:
2009AP1337
2009AP1338
Capital One Bank, USA NA v. Eugene Summers (L.C. # 2008CV242)
Capital One Bank, USA NA v. Eugene Summers (L.C. # 2008SC440)
Before Neubauer, P.l, Anderson and Snyder, JJ.
In these consolidated appeals, Eugene Summers appeals from circuit court judgments awarding Capital One Bank, USA NA, his credit card issuer, $3154.86 (the small claims judgment) and $7754.62 (the large claims judgment). Based upon our review of the briefs and record, we conclude at conference that this case is appropriate for summary disposition. WIS.
STAT. RULE 809.21 (2007-08)1 We affirm the judgments.
In the small claims case, appeal no. 2009AP1338 (Green Lake County circuit court case no. 2008SC440), Capital One sued Summers for amounts due on his credit card account after he defaulted on the account by failing to pay amounts due. Appended to the complaint were documents, including statements, substantiating the unpaid charges and other amounts due on the account. In the large claims case, appeal no. 2009AP1337 (Green Lake County circuit court case no. 2008CV242), Capital One sued Summers for amounts due on another credit card account after Summers defaulted by failing to pay amounts due. Appended to that complaint were documents, including statements, substantiating the unpaid charges and other amounts due on the account. Capital One sought summary judgment in both cases. At the summary judgment hearing in the large claims case,2 Capital One argued that it had proved the debt by submitting account statements via affidavits from a Capital One employee. The statements showed the status of the account from a zero balance to the amount in litigation. Relying upon his interpretation of WIS. STAT. § 425.109(2), Summers argued that Capital One also had to submit the credit card agreement and other information regarding the account's terms. The circuit court concluded that WIS. STAT. § 425.109(2) only required Capital One to prove the debt via account statements covering the period during which the balance due accrued. Summers offered no evidence to support his argument that Capital One's claims fell outside the terms of the credit card agreement, and there was no evidence that Sununers had disputed any of the charges or statements. The court granted summary judgment to Capital One.
2 In the small claims case, the circuit court heard Capital One's summary judgment motion. Summers did not file any pleadings in opposition to Capital One's summary judgment motion. At the conclusion of the hearing, the conrt adjonrned the summary judgment proceeding to another date to permit Summers to further prepare to counter the motion. Summers did not appear at the adjourned hearing, and the circuit court entered summary judgment for Capital One. Summers raised the same issues in both cases.
We review decisions on summary judgment by applying the same methodology as the circuit court. M & I First Nat'l Bank v. Episcopal Homes, Mgmt. Inc., 195 Wis. 2d 485, 496,536 N.W.2d 175 (Ct. App. 1995). That methodology has been recited often and we need not repeat it here except to observe that summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter oflaw. Id. at 496-97.
On appeal, Summers argues that WIS. STAT. § 425.109(2) required Capital One to produce more than monthly statements to support its claim. Section 4:25.109(2) provides:
Upon the written request of the customer, the creditor shall submit accurate copies to the court and the customer of writings evidencing any transaction pursuant to an open-end credit plan upon which the creditor's claim is made and judgment may not be entered for the creditor unless the creditor does so.
There is no dispute that WIS. STAT. § 425.109(2) applies to this case. It is inescapable from a reading of Newgard v. Bank of America, 2007 WI App 161, 303 Wis.2d 466, 735 N. W.2d 578, that account statements constitute "writings evidencing" the transactions shown in them within the meaning of § 425.109(2).3 id., ~~3-4, 15. While the Newgard court disallowed all claims based on transactions not shown in the statements submitted by the creditors, the court allowed claims based on the transactions shown in the account statements. See id., ~15.
Similarly, the account statements incorporated in Capital One's affidavits constituted writings evidencing the transactions on Summers' accounts, and these statements established Capital One's compliance with § 425.109(2). Summers' attempt to expand the definition of "writings"
3 In Newgard v. Bank of America, 2007 WI App 161, 303 Wis. 2d 466, 735 N.W.2d 578, no party disputed that the creditors' account statements constituted writings evidencing a transaction within the meaning of WIS. STAT. § 425.109(2). Therefore, the court did not directly address the issue. See Newgard, 303 Wis. 2d 466, ~~3-4. We likewise conclude that no basis exists to dispute the conclusion that account statements are writings evidencing a transaction within the meaning of § 425.\09(2). in § 425.109(2) to include all documents relating to the creation of the account, including its terms and conditions, is inconsistent with Newgard.
In addition, the statements submitted by Capital One fulfilled the goal of WIS. STAT. § 425.109(2): to provide the debtor with all the information necessary to determine how the creditor computed the amowlt due. Household Finance Corp. v. Kohl, 173 Wis. 2d 798, 801. 496 N.W.2d 708 eCt. App. 1993). Summers did not dispute that these were his credit card accounts or that he made the purchases and transactions detailed on the statements.
Summers offered no evidence in opposition to summary judgment. Merely alleging a factual dispute will not defeat an otherwise properly supported motion for summary judgment. Helland v. Kurtis A. Froedtert Memorial Lutheran Hosp., 229 Wis. 2d 751, 756, 601 N.W.2d 318 (Ct. App. 1999). The opposing party must set forth specific evidentiary facts showing that a genuine issue exists for trial. See id. SWllmers did not counter Capital One's summary judgment motion with evidentiary facts. Capital One met its burden to present a prima facie case warranting summary judgment.
Upon the foregoing reasons,
IT IS ORDERED that the judgments of the circuit court are affirmed.
David R. Schanker, Clerk of Court of Appeals