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Contract – Credit Card – Evidence – Bills & Payments

FIA Card Services, N.A. v. Caviness (Lawyers Weekly No. 14-16-0481, 9 pp.) (Rick Elmore, J.) Appealed from Wake County District Court (Margaret Eagles, J.) N.C. App. Unpub.

Holding: Although plaintiff failed to offer the parties’ credit card agreement into the record during the summary judgment hearing, plaintiff nevertheless proved at least an implied contract between the parties by presenting uncontradicted evidence that plaintiff offered to extend credit to defendant and that defendant accepted the offer by using plaintiff’s credit card.

We affirm summary judgment for plaintiff.

Plaintiff presented copies of monthly account statements from November 2008 to March 2011. The statements each bear defendant’s name, his account number, his mailing address, purchases made, outstanding balance, and payment due date.

The statements indicate that plaintiff extended a line of credit to defendant for $10,400.00, and defendant repeatedly made purchases on the credit card. The statement also provided specific terms as to method of payment, the calculation of finance charges for late payments, grace periods, and how to keep one’s account in good standing.

Plaintiff also provided copies of checks from defendant and his landscaping company made payable to plaintiff from September 2008 until November 2009. Nothing in the record indicates that defendant ever disputed the charges or the amounts owed.

Additionally, plaintiff offered the affidavit of its employee, Raven McRae, which stated that defendant opened an account with plaintiff “for the purpose of obtaining an extension of credit and did thereafter use or authorize the use of the account for the acquisition of goods, services, or cash advances in accordance with the customer agreement governing use of that account.” It further reads, “The books and records of Plaintiff show that Defendant(s) is/are currently indebted to Plaintiff … for the just and true sum of $10,150.19 and that all just and lawful offsets, payments, and credits have been allowed.”

Thus, at a minimum, an implied contract was formed between the parties because plaintiff’s extension of credit constituted an offer, and defendant’s use of the credit card amounted to an acceptance of plaintiff’s offer. Moreover, payments to plaintiff by defendant’s checks coupled with the credit card’s terms of use on the statements establish a mutual assent to the specific provisions of the contract – to pay the outstanding balance owed as evidenced on the account statements.

Accordingly, there is no genuine issue of material fact as to whether a valid contract existed between the parties.



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