Citibank v. Lambert

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

CITIBANK, N.A., Plaintiff/Appellee,

v.

CRAIG A. LAMBERT, Defendant/Appellant.

No. 1 CA-CV 20-0212
FILED 1-7-2021

Appeal from the Superior Court in Maricopa County
No. CV2019-000659
The Honorable Christopher A. Coury, Judge

AFFIRMED

COUNSEL

The Moore Law Group, Phoenix
By Nicolena Milicevic, Julie Hunt, Mia Samartinean, Vincent M. Creta
Counsel for Plaintiff/Appellee

Craig A. Lambert, Phoenix
Defendant/Appellant
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MEMORANDUM DECISION

Presiding Judge Jennifer M. Perkins delivered the decision of the Court, in
which Judge David B. Gass and Judge Michael J. Brown joined.

P E R K I N S, Judge:

¶1 This case is about unpaid credit card debt. Craig Lambert
appeals the superior court’s grant of summary judgment in favor of
Citibank, N.A. (“Citibank”). For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 In 2011, Citibank issued a credit card to Lambert, who used
and made payments on the account (“Account”) for several years. Citibank
sent Lambert regular monthly statements showing the amount due and
accruing interest on the Account. Lambert discontinued payments in 2018
and eventually defaulted. At the time of his default, Lambert owed
$10,916.95.

¶3 Citibank sued Lambert to recover the Account’s outstanding
balance, alleging an account stated claim. Lambert moved to dismiss the
complaint because, among other reasons, he claimed Citibank violated
federal debt collection statutes while pursuing the debt. The superior court
denied Lambert’s motion and referred Citibank’s suit to compulsory
arbitration.

¶4 The superior court appointed an arbitrator (“Arbitrator”) to
the case in May 2019. In preparation for the arbitration hearing scheduled
on September 18, 2019, Citibank moved for a witness to appear
telephonically. Citibank identified the witness as a “Custodian of Records
for Citibank.” Lambert objected, claiming Citibank failed to include the
“exact name” of a “flesh and blood” witness. Both the superior court and
the Arbitrator granted Citibank’s motion. After receiving approval,
Citibank updated its disclosure statement to reflect that it anticipated
calling Tiffany McCarter as its custodian witness.

¶5 Lambert appealed both orders granting Citibank’s motion to
allow a telephonic witness. Lambert initially appealed the Arbitrator’s
order to our court but withdrew his appeal after discovering he first needed
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to appeal to the superior court. Lambert then filed a notice of appeal with
the superior court. The Arbitrator postponed the scheduled arbitration
hearing until the court ruled on Lambert’s motion or until the parties
agreed on an alternative date.

¶6 On September 23, 2019, Lambert filed a combined motion to
strike and motion in limine to preclude Citibank from presenting Lambert’s
credit card application and several monthly account statements at the
arbitration hearing. On that same day, Lambert filed his arbitration
prehearing statement denying all of Citibank’s allegations, including that
he had opened an account with Citibank.

¶7 Citibank moved for summary judgment in November 2019
and attached to its motion: an affidavit from Megan Marksberry, a
document control officer and custodian of records; several months of
account statements; the credit card agreement; and Lambert’s credit card
application. Lambert responded to Citibank’s motion and moved again to
strike and preclude introduction of Citibank’s summary judgment exhibits.

¶8 The superior court granted summary judgment to Citibank
and entered judgment against Lambert in the amount of $10,916.95 for the
principal debt and $594.90 in costs. Lambert moved for reconsideration,
noting the court had not yet ruled on his pending motions to strike and
raising various evidentiary and procedural arguments. The superior court
denied reconsideration.

¶9 Lambert timely appealed. We have jurisdiction pursuant to
Article 6, Section 9 of the Arizona Constitution, and A.R.S. § 12–2101(A).

DISCUSSION

¶10 Lambert raises numerous claims on appeal. Broadly, he
argues: (1) Citibank’s evidence supporting summary judgment was
inadmissible; (2) summary judgment was improper because he was
unaware of the requirements under Rule 56(e); (3) Citibank’s account stated
theory is legally flawed; and (4) the superior court failed to address his
federal law claim. Before reaching these claims, we note that several weeks
after filing his opening brief, Lambert filed two “supplemental” briefs. Our
rules do not permit such filings and we do not consider these briefs. See
ARCAP 13(c) (“A party may file an additional brief after a reply only with
the appellate court’s permission.”).

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I. Evidentiary Objections

¶11 Lambert claims that Citibank failed to authenticate its exhibits
when first disclosing them. He does not dispute that Citibank disclosed—
from the beginning—its intent to provide custodial witness testimony for
authentication purposes. Lambert’s concern is that Citibank changed the
identity of the custodial witness between the time of disclosures and the
summary judgment motion. “We review evidentiary rulings for an abuse
of discretion and generally affirm a trial court's admission or exclusion of
evidence absent a clear abuse or legal error and resulting prejudice.” Ryan
v. S.F. Peaks Trucking Co. Inc., 228 Ariz. 42, 46, ¶ 12 (App. 2011) (quoting
John C. Lincoln Hosp. & Health Corp. v. Maricopa Cnty., 208 Ariz. 532, 543, ¶
33 (App. 2004)).

¶12 Citibank properly authenticated the evidence supporting its
motion for summary judgment by offering Marksberry’s affidavit to
establish the documents as business records. See Wells Fargo Bank, N.A. v.
Allen, 231 Ariz. 209, 214, ¶ 19 (App. 2012). Marksberry’s affidavit
established her as a custodian of records who possessed personal
knowledge of the “account information and records concerning [Lambert’s]
Citibank account,” in accordance with Ariz. R. Civ. P. 56(c)(5). Her affidavit
also satisfied each element of the business records exception to the hearsay
rule. See Ariz. R. Evid. 803(6). And business records may be admitted even
if the custodian did not personally assemble the records because
“[t]rustworthiness and reliability stem from the fact that [the business]
regularly relies on the information . . . as part of their ordinary course of
business.” State v. Parker, 231 Ariz. 391, 402, ¶ 33 (2013).

¶13 Regarding the change of custodian, Lambert identifies no
specific basis for challenging Marksberry’s qualifications to act on behalf of
Citibank. Instead he asserts that Citibank violated numerous rules of civil
procedure by failing to disclose Marksberry’s identity before moving for
summary judgment. Absent any specific challenge or claim of prejudice
caused by Citibank’s substitution of custodians, we find no abuse of
discretion.

¶14 Lambert also appears to contend the only reason the court
weighed Citibank’s summary judgment evidence was the court’s failure to
rule on his pending motions to strike that evidence. But “[w]hen a court
fails to expressly rule on a motion, we deem it denied.” State v. Mendoza-
Tapia, 229 Ariz. 224, 231, ¶ 22 (App. 2012). We find no abuse of discretion in
the court’s implicit denial of Lambert’s motions. We also note that neither

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motion included the required certificate of good faith consultation, and thus
both were improper. See Ariz. R. Civ. P. 7.2(a); see also Ariz. R. Civ. P. 7.1(h).

II. Summary Judgment

¶15 We review the court’s summary judgment ruling de novo and
view the facts and inferences in the light most favorable to Lambert. See
Lennar Corp. v. Transamerica Ins. Co., 227 Ariz. 238, 242, ¶ 7 (App. 2011).
Summary judgment is appropriate when “there is no genuine dispute as to
any material fact and the moving party is entitled to judgment as a matter
of law.” Ariz. R. Civ. P. 56(a).

¶16 Lambert claims Citibank failed to prove the necessary
elements of its account stated claim, including that the parties agreed upon
the correct balance of the debt.

¶17 An action for an account stated seeks judgment for a sum
certain. Monte Produce, Inc. v. Delgado, 126 Ariz. 320, 321 (App. 1980). An
account stated “signifies an agreed balance between the parties to a
settlement; that is, that they have agreed after an investigation of their
accounts that a certain balance is due from one to the other.” Trimble Cattle
Co. v. Henry & Home, 122 Ariz. 44, 47 (App. 1979) (quoting Chittenden &
Eastman Co. v. Leader Furniture Co., 23 Ariz. 93, 94 (1921)). Merely providing
a statement of account that “is not understood by the debtor as a final
adjustment of the parties’ demands does not constitute an account stated.”
Holt v. W. Farm Servs., Inc., 110 Ariz. 276, 278 (1974). But when a debtor
retains a statement of account without objection for more than a reasonable
time, by implication the debtor consents to its validity. Trimble Cattle Co.,
122 Ariz. at 47; see also Restatement (Second) of Contracts § 282 (“[A] party's
retention without objection for an unreasonably long time of a statement of
account rendered by the other party is a manifestation of assent.”).

¶18 Citibank provided business records demonstrating that
Lambert applied for the Account and that Citibank provided Lambert with
monthly billing statements from October 2017 through October 2018,
notifying him of the amount owed, the interest rate charged, and fees
accrued. At no point during this timeframe did Lambert object to the
indebtedness or challenge any of the other information provided in the
statements. Between October 2017 and March 2018, Lambert tendered the
requisite minimum payments due. When he failed to tender a minimum
payment in April 2018, Citibank notified Lambert that his failure triggered
an increased late payment penalty. Lambert did not dispute this penalty

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despite receiving instructions on how to opt out of the penalty and how to
report any other suspected errors in the statements.

¶19 Lambert argues that his failure to object to the calculation of
debt and fees “does not constitute acquiescence.” But Lambert
acknowledged the debt through repeated tender of minimum payments
consistent with the terms set forth in the monthly statements. He now
disputes that he applied for the credit card at issue and contends that
Citibank failed to prove he made these payments. Lambert offers no
controverting evidence to support these arguments as required by Rule
56(e). His pro per status does not relieve him of his obligations under our
procedural rules. Arizona courts hold pro per litigants to the same
standards as attorneys. Kelly v. NationsBanc Mortg. Corp., 199 Ariz. 284, 287,
¶ 16 (App. 2000); see also Copper State Bank v. Saggio, 139 Ariz. 438, 441 (App.
1983) (persons representing themselves are “held to the same familiarity
with required procedures” as an attorney).

¶20 Based on Lambert’s acknowledgement of the debt through
repeated tender of minimum payments, and his failure to timely challenge
the calculation of the debt or the manner in which interest, fees, and
penalties accrued, Citibank established a prima facie case of account stated.
See PNL Asset Mgmt. Co., LLC v. Brendgen & Taylor P'ship, 193 Ariz. 126, 130,
¶ 15 (App. 1998). And Lambert failed to offer evidence creating an issue of
fact, which if proven at trial, would legally authorize a judgment in his
favor. See Wakeham v. Omega Constr. Co., 96 Ariz. 336, 340 (1964). The
superior court did not err by entering summary judgment in favor of
Citibank.

III. Federal Claim

¶21 Lambert argues on appeal that Citibank violated the Truth in
Lending Act of 1968 (“TILA”) and various Federal Deposit Insurance
Corporation regulations. He did not raise these arguments in the superior
court, so we will not address them here in the first instance.

¶22 Lambert originally argued that Citibank violated the Federal
Debt Collection Practices Act of 1977 (“FDCPA”)—a completely separate
part of the Consumer Credit Protection Act than TILA. Nevertheless,
Lambert’s argument under the FDCPA has no merit. The FDCPA regulates
only “debt collectors,” which are businesses that regularly collect consumer
debt for others. Henson v. Santander Consumer USA Inc., 137 S. Ct. 1718, 1721
(2017). The FDCPA does not reach creditors, like Citibank here, when they

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attempt to recover their own original debt. Id.; see also 15 U.S.C. §
1692a(6)(A).

CONCLUSION

¶23 We affirm.

AMY M. WOOD • Clerk of the Court
FILED: AA

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