Consumer Debt Defense Case Law: Capital One Bank (USA), N.A. v Stewart

Capital One Bank (USA), N.A. v Stewart, 60 Misc 3d 132(A) (App Term 2018). Pro Se litigant makes an interesting, but superfluous argument to no avail. Plaintiff moved on summary judgment for breach of contract of a credit card agreement. The court notes that defendant essentially admitted and did not contest the elements of a breach of contract. Instead, the defendant argued unsuccessfully that the contract was inadmissible pursuant to CPLR § 4544 since the print size thereon was too small. The court held that Truth in Lending Act § 1601 (e) preempts state laws relating to the format, content, manner or substance of credit card disclosures.

Indeed, since plaintiff only moved for a breach of contract, if the defendant had the wherewithal to hire a competent attorney in consumer debt defense, that attorney might have been able to oppose this motion.

1. Breach of [Credit Card] Contract: to establish a breach of contract, a plaintiff must submit sufficient evidence of a credit card agreement, which the defendant accepted by using the credit card and making payments, and that the agreement was breached by the defendant when it failed to make payments. The issuance of a credit card constitutes an offer of credit, and the use of the card constitutes acceptance of the offer. Here, the defendant did not contest the facts alleged in plaintiff’s moving papers regarding the issuance of the credit card, his acceptance of the credit card, his receipt and acceptance of the billing statements itemizing his charges to the credit card and that he had stopped making payments pursuant to the agreement. The absence of underlying agreement would not relieve cardholder of obligation to pay for goods and services he received through use of credit card.