Readers should be aware that credit card collection
cases make up as much as half of the civil filings in Oregon courts. Virtually
all of them seek less than $50,000 in damages (and usually far less) and are
thus eligible for court annexed arbitration. Most of the cases are
resolved by entry of default judgments because most defendants do not answer.
When debtors do file answers, creditors typically file motions for
summary award and seek argument on the motion by telephone, which is the
preferred method of hearing under Oregon procedural rules if either party
is more than 25 miles from the place of argument.
EXAMPLE OF AN OPINION ON A MOTION FOR SUMMARY AWARD IN A CREDIT CARD COLLECTION CASE:
Bank’s motion for summary award came on for hearing
at 10:00 a.m. pursuant to notice. My notice said that I would conference
call the parties. I called Debtor twice, at 9:48 a.m. and again at 10:05
a.m. Debtor did not answer either time. At 10:05 a.m., I held
the hearing on the motion for summary award. Bank's lawyer appeared
for Bank. Debtor did not appear on the phone or in person at my office.
Furthermore, Debtor did not submit any evidence in opposition to the motion for summary award. For instance, Debtor did not submit any declaration that he did not sign the credit card application, did not purchase goods or services, or otherwise contest the evidence contained in the Bank's declaration.
On a motion for summary award, “Absent counter-affidavits or conflicting evidence, facts set forth in a supporting affidavit will be taken as true,” Comley v. State Bd. of Higher Ed., 35 Or App 465, 469-70, 582 P2d 443 (1978). Even then I may only make summary award if the declaration submitted in support of the motion for summary award satisfies the requirements of ORCP 47C (“The court shall grant the motion if the pleadings, depositions, affidavits, declarations and admissions on file show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”)
The party with the burden of persuasion at trial also has the burden of persuasion on a motion for summary award, ORCP 47C. Bank has the burden of persuasion on every element of every part of its claim for relief, both under state law, ORS 40.105 and Standard Prod. Co. v. ICN United Med. Labs, 279 Or 633, 635, 569 P2d 594 (1977), and under federal law, 15 USC § 1643(b): (“Burden of proof. In any action by a card issuer to enforce liability for the use of a credit card, the burden of proof is upon the card issuer to show that the use was authorized or, if the use was unauthorized, then the burden of proof is upon the card issuer to show that the conditions of liability for the unauthorized use of a credit card, as set forth in subsection (a) of this section, have been met.”)
Having in mind my pre-disposition to in person arbitration hearings to resolve consumer court annexed arbitrations, nevertheless, in this case my award is for Bank. Bank has presented sufficient unopposed proof to prevail on this motion.
The purpose of summary award proceedings is to avoid unnecessary trials. In order to take this case to trial, Debtor had to at least submit opposition to the motion for summary award. If the material which Debtor had submitted had created a material issue of fact on an element necessary for Citibank to prove in order to prevail, I would have denied the motion for summary award and sent this case to hearing. But, Debtor didn’t.
Bank concedes that the only post judgment interest awardable on this case is at the statutory rate of 9% , because Bank did not present any document (i.e., copy of account application with debtor's signature) proving a higher rate of evidence. I agree that the Bank's declaration is sufficient to prove pre-judgment interest at a rate higher than 9%, but not for post-judgment interest.
Bank also concedes that the Bank's declaration is not sufficient to authorize the recovery of attorney fees.
My award is attached. The hearing set for next week is cancelled.