City-County Federal Credit Union v. Suzanne E. Linboe

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

September 16, 2005 Session

CITY-COUNTY FEDERAL CREDIT UNION v.

SUZANNE E. LINBOE

Appeal from the Circuit Court for Monroe County

No. V04389P Lawrence H. Puckett, Judge

Filed September 27, 2005

No. E2005-00577-COA-R3-CV

City-County Federal Credit Union (“Plaintiff”) filed suit in the General Sessions Court seeking over

$12,000 it claimed was owed on a VISA credit card it had issued to Suzanne E. Linboe

(“Defendant”). After Plaintiff was awarded a judgment by the General Sessions Court, Defendant

appealed to the Circuit Court. Defendant filed a motion to dismiss and Plaintiff filed a motion for

summary judgment. The Circuit Court denied Defendant’s motion to dismiss and granted Plaintiff’s

motion for summary judgment, awarding Plaintiff a judgment for $15,323.10. Defendant appeals,

and we affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the

Circuit Court Affirmed; Case Remanded

D. MICHAEL SWINEY , J., delivered the opinion of the court, in which CHARLES D. SUSANO , JR., and

SHARON G. LEE, JJ., joined.

Suzanne E. Linboe, pro se Appellant.

Chadwick B. Tindell, Knoxville, Tennessee, for the Appellee City-County Federal Credit Union.

OPINION

Background

Plaintiff initially filed this lawsuit in the Monroe County General Sessions Court

seeking over $12,000, which it claimed was owed and past due on a VISA credit card issued to

Defendant. Plaintiff also sought interest, costs, and attorney fees. After a trial, the General Sessions

Court awarded Plaintiff a judgment in the amount of $14,639.29. Defendant, who has proceeded

pro se throughout this litigation, filed a timely appeal to the Monroe County Circuit Court. Once

in Circuit Court, Plaintiff filed a motion for summary judgment supported by the affidavit of Ramona

Boisvert ("Boisvert"), who is employed by Plaintiff as a collections assistant. According to Boisvert:

(1) Defendant and her now deceased husband applied for a credit card in 1988; (2) Plaintiff issued

Defendant and her husband a credit card at that time; (3) Defendant has defaulted on the payments;

(4) the amount currently owed was $12,201.37; and (5) the VISA credit card agreement provides for

interest at the rate of 13.92% plus attorney fees in the event of default. Attached to Boisvert's

affidavit was the credit card application, the credit card agreement, and copies of all account

statements showing the outstanding balance on Defendant’s account.

Defendant never filed a response to Plaintiff’s motion for summary judgment.

However, Defendant did file a motion to dismiss which stated:

COMES, the defendant, Sue E. Linboe, and, pursuant to violation of

United States Code 18 section 891-894, and further in light of Federal

Code 15-692 I to B, hereby moves the court for dismissal. And in

support of this Motion show that Stone & Hinds, P.C. a third party,

has repeatedly refused to provide information proving ownership, and

Sue E. Linboe is entitled to judgment for dismissal as a matter of law.

Plaintiff responded to Defendant’s motion to dismiss, noting that Defendant cited to

the Small Business Administration, Small Business Investment Program, which has absolutely no

applicability to this case. With regard to the citation to the Consumer Credit Protection Act, 18

U.S.C. §§ 891-894, Plaintiff noted it was unclear exactly what Defendant was referring to when

stating “Stone & Hinds, P.C. a third party, has repeatedly refused to provide information proving

ownership”, but Plaintiff nevertheless claimed it had provided Defendant with all information

required under the law, including “a copy of Defendant’s VISA Credit Card Application, VISA

Credit Card Agreement and all account statements supporting the balance owed as alleged in this

case.”

On February 18, 2005, both motions were heard by the Circuit Court. The Circuit

Court denied Defendant’s motion to dismiss. Plaintiff’s motion for summary judgment was granted

after the Circuit Court determined that Plaintiff had filed a properly supported motion for summary

judgment and Defendant had filed no response. A judgment was rendered in favor of Plaintiff for

$15,323.10.

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Defendant appeals. As best we can tell from the Statement of Issues contained in

Defendant’s brief, she claims to have requested copies of an “affidavit of assignment, power of

attorney, and verification of license” from Plaintiff and/or their attorney, but this information

allegedly never was provided. Defendant claims not providing this information is a violation of the:

“Uniform Deceptive Trade Practices Law, Uniform Commercial Code, … Code of Federal

Regulations, Federal Deposit Insurance Act, … Fair Debt Collection Practices Act, Freedom of

Information Act, [and the] Truth in Lending Act.”

Discussion

We first address the Circuit Court’s denial of Defendant’s motion to dismiss. The

only statute referenced by Defendant in her motion to dismiss which could have any possible bearing

on this lawsuit is the federal Consumer Credit Protection Act. Defendant claims this Act was

violated when she was not provided certain requested information. However, Defendant offered

absolutely no proof to the Circuit Court even remotely establishing that she actually requested any

information or that this information never was provided. The record contains nothing more than

Defendant’s unsubstantiated and bare allegations. At oral argument before this Court, Defendant

referred to various documents which are not in the record on appeal and, therefore, cannot be

considered in resolving this appeal. Because the record is utterly devoid of any competent proof that

Defendant actually requested information or that this information never was provided, we affirm the

Circuit Court’s denial of Defendant’s motion to dismiss.1

With regard to the remaining federal statutes which Defendant claims were violated,

these statutes never were mentioned or made an issue at either the General Sessions or Circuit Court

levels. We will consider these issues waived because they were raised for the first time on appeal.

See In re: Adoption of D.P.M., 90 S.W.3d 263, 267 (Tenn. Ct. App. 2002); Heatherly v. Merrimack

Mutual Fire Ins. Co., 43 S.W.3d 911, 916 (Tenn. Ct. App. 2000) ("As a general matter, appellate

courts will decline to consider issues raised for the first time on appeal that were not raised and

considered in the trial court.").

Although Defendant does not expressly raise as an issue the propriety of the grant of

summary judgment to Plaintiff, since Defendant is proceeding pro se and giving Defendant the

benefit of every doubt, we nevertheless will examine this issue. In Blair v. West Town Mall, our

Supreme Court recently reiterated the standards applicable when appellate courts are reviewing a

motion for summary judgment. Blair v. West Town Mall, 130 S.W.3d 761 (Tenn. 2004). In Blair,

the Court stated:

The standards governing an appellate court’s review of a

motion for summary judgment are well settled. Since our inquiry

involves purely a question of law, no presumption of correctness

1

W e need not and expressly do not decide whether Plaintiff’s alleged failure to provide the information states

a cause of action under the Consumer Protection Credit Act or any of the other federal statutes cited by Defendant.

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attaches to the lower court’s judgment, and our task is confined to

reviewing the record to determine whether the requirements of

Tennessee Rule of Civil Procedure 56 have been met. See Staples v.

CBL & Assoc., Inc., 15 S.W.3d 83, 88 (Tenn. 2000); Hunter v.

Brown, 955 S.W.2d 49, 50-51 (Tenn. 1997); Cowden v. Sovran

Bank/Central South, 816 S.W.2d 741, 744 (Tenn. 1991). Tennessee

Rule of Civil Procedure 56.04 provides that summary judgment is

appropriate where: 1) there is no genuine issue with regard to the

material facts relevant to the claim or defense contained in the

motion, and 2) the moving party is entitled to a judgment as a matter

of law on the undisputed facts. Staples, 15 S.W.3d at 88.

***

When the party seeking summary judgment makes a properly

supported motion, the burden shifts to the nonmoving party

to set forth specific facts establishing the existence of

disputed, material facts which must be resolved by the trier of

fact.

To properly support its motion, the moving party must

either affirmatively negate an essential element of the

non-moving party’s claim or conclusively establish an

affirmative defense. If the moving party fails to negate a

claimed basis for the suit, the non-moving party’s burden to

produce evidence establishing the existence of a genuine issue

for trial is not triggered and the motion for summary judgment

must fail. If the moving party successfully negates a claimed

basis for the action, the non-moving party may not simply rest

upon the pleadings, but must offer proof to establish the

existence of the essential elements of the claim.

Blair, 130 S.W.3d at 763-64, 767 (quoting Staples, 15 S.W.3d at 88-89).

The motion for summary judgment filed by Plaintiff was properly supported.

Therefore, the burden shifted to Defendant to set forth facts establishing the existence of disputed,

material facts. Defendant did not meet this burden given that absolutely no response was filed.

Defendant having failed to establish the existence of a disputed material fact, the Circuit Court

properly granted summary judgment to Plaintiff as Plaintiff was entitled to a judgment as a matter

of law given the undisputed material facts.

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Conclusion

The judgment of the Circuit Court is affirmed, and this cause is remanded to the

Circuit Court for collection of the costs below. Costs on appeal are assessed against the Appellant

Suzanne E. Linboe and her surety, if any.

___________________________________

D. MICHAEL SWINEY, JUDGE

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