Burt v. First American Bank, 83-1503.

• Decision Date: 29 March 1985
• Docket Number: No. 83-1503.,83-1503.
• Citation: 490 A.2d 182
• Parties: Joan A. BURT, Appellant, v. FIRST AMERICAN BANK, Appellee.
• Court: D.C. Court of Appeals

490 A.2d 182

Joan A. BURT, Appellant, v. FIRST AMERICAN BANK, Appellee.

No. 83-1503.

District of Columbia Court of Appeals.

Argued February 15, 1985.

Decided March 29, 1985.

Ruth R. Banks, Washington, D.C., for appellant.

Joseph Sperling, Rockville, Md., for appellee.

Before PRYOR, Chief Judge, TERRY and ROGERS, Associate Judges.

PRYOR, Chief Judge:

Appellant, Joan A. Burt, appeals from a judgment awarding appellee, First American Bank (hereinafter the bank), $2,538.92 plus interest at the rate of 15%, on two loan instruments executed by Ms. Burt in favor of the bank. Ms. Burt assigns as error the trial court's (1) entry of summary judgment in favor of the bank; (2) denial of her motion to recuse; and (3) award of $200 in "costs" to the bank. We conclude, based on the pleadings and affidavits, that a genuine issue of material fact exists with regard to the amount Ms. Burt owes on one of the two loan instruments. Accordingly, we affirm the grant of summary judgment with respect to the bank's other claims and remand for further proceedings as to one issue. We also remand the question of "costs."

I. Facts

On March 31, 1983, the bank commenced a civil action against Ms. Burt as a result of her default on two loan instruments. The first instrument was a promissory note (hereinafter the note) in the amount of $5,818.32, executed on October 20, 1980, at an annual interest rate of 15%. At the time the bank commenced suit, Ms. Burt allegedly owed $969.72 on the note. The second instrument was an "executive credit agreement" (hereinafter the credit agreement) in the amount of $2,000, which the bank had issued to Ms. Burt on August 16 1976, in connection with her receipt of an American Express Gold Bank Card. The credit agreement enabled Ms. Burt to periodically receive extensions of credit from the bank. The credit agreement provided that a finance charge would be imposed on any unpaid balances at an annual percentage rate of 11.50%. Ms. Burt allegedly owed $1,569.20 on the credit agreement at the time the bank commenced suit.

On May 4, 1983, the bank mailed a request for admissions to Ms. Burt. Ms. Burt failed to respond to the request for admissions within the statutory thirty-day period. See Super.Ct.Civ.R. 36 (a). Thereafter, the bank filed a motion for summary judgment. Ms. Burt's opposition to the motion, though filed in a timely fashion, merely denied the specific facts averred in the bank's motion.

A hearing on the bank's motion was set for September 13, 1983. Upon Ms. Burt's motion for a continuance, this hearing was continued until October 18, 1983. In its order granting her motion for a continuance, the trial court also ordered Ms. Burt to answer the bank's request for admissions by September 28, 1983.

On October 18, 1983, Ms. Burt appeared pro se at the hearing on the motion for summary judgment. She again moved for a continuance on the ground that she wished to retain counsel to represent her. In response to the court's inquiries concerning the earlier motion for a continuance, Ms. Burt contended that she had been unable to attend the earlier hearing because she had been physically incapacitated due to a car accident. The trial court entered an order continuing the hearing until November 8, 1983. The order also required that Ms. Burt obtain, on or before October 25, 1983, an affidavit verifying her earlier alleged incapacity; that counsel for Ms. Burt enter an appearance on or before October 25, 1983; that Ms. Burt file and serve formal responses to the request for admissions;¹ and that she file a new pleading opposing the motion for summary judgment, supported by affidavits under oath. Finally the court assessed $200, which the court characterized as costs against Ms. Burt, to be paid to the bank on or before November 8, 1983.²

On November 8, 1983, the hearing on the motion for summary judgment was finally held. Ms. Burt was represented by counsel at the hearing. At this time, her counsel submitted a motion to recuse and stay the order of October 18, 1983. The basis for the recusal motion was certain remarks that the trial court made at the October 18, 1983 hearing. The trial court denied Ms. Burt's motion to recuse, and granted the bank's motion for summary judgment. The final judgment awarded the bank $2,538.92, plus interest at a rate of 15% from November 29, 1982 until paid, an attorney fee of 15%, court costs, and $200 assessed costs.

II. Summary Judgment

Ms. Burt concedes that she is liable on both the note and the credit agreement, and, accordingly, that summary judgment on the issue of liability as to both debt instruments was appropriate. She maintains, however, that the trial court erred in granting summary judgment on the issue of damages because the operative interest rates on both the note and the credit agreement were in dispute.

In reviewing a trial court order granting a motion for summary judgment, this court conducts an independent review of the record. Phenix-Georgetown, Inc. v. Chas. H. Thompkins Co., 477 A.2d 215, 221 (D.C. 1984); Holland v. Hannan, 456 A.2d 807, 814 (D.C.1983); Scrimgeour v. Magazine, 429 A.2d 187, 188 (D.C.1981). Our standard of review is the same as the trial court's standard for initially considering a motion for summary judgment. Holland v. Hannan, supra, 456 A.2d at 814; Wyman v. Roesner, 439 A.2d 516, 519 (D.C. 1981).

Summary judgment should be granted only when there are no genuine issues of material fact and when the moving party is entitled to judgment as a matter of law. Super.Ct.Civ.R. 56 (c); Nader v. de Toledano, 408 A.2d 31, 41 (D.C.1979), cert. denied, 444 U.S. 1078, 100 S.Ct. 1028, 62 L.Ed.2d 761 (1980); Willis v. Cheek, 387 A.2d 716, 719 (D.C.1978). The moving party bears the burden of demonstrating the absence of a material factual dispute and entitlement to judgment as a matter of law. Wyman v. Roesner, supra, 439 A.2d at 519. Moreover, the evidence — consisting of the pleadings and other material in the record — must be construed in the light most favorable to the party opposing the motion. Holland v. Hannan, supra, 456 A.2d at 815; Murphy v. Army Distaff Foundation, Inc., 458 A.2d 61, 62 (D.C. 1983).

When a motion for summary judgment is supported by affidavits and other pleadings, the opposing party may not rely upon general denials in its response, but must respond with affidavits or other relevant documents setting forth specific facts. Super.Ct.Civ.R. 56(e). If the opposing party does not respond in the proper way, summary judgment should be granted, but only "if appropriate." Id. Thus, if the moving party does not meet its initial burden, summary judgment must be denied even where the opponent comes forth with nothing. Burch v. Amsterdam Corp., 366 A.2d 1079, 1084 (D.C.1976).

After examining the pleadings, affidavits, and other documents in the record, we conclude that there remains no genuine issue of material fact as to the amount of appellant's liability on the note and thus the trial court's order granting summary judgment should be affirmed. To date, Ms. Burt has never filed a response to the bank's request for admissions.³ We agree with the bank's contention that, in the absence of timely responses to its request for admissions, the matters set forth in the request⁴ should be deemed admitted pursuant to Super.Ct.Civ.R. 36(a).⁵ Requests for admissions which are not denied within the statutory period are deemed admitted and may properly form the basis for a grant of summary judgment. See, e.g., Donovan v. Porter, 584 F.Supp. 202, 207-08 (D.Md. 1984); Freed v. Plastic Packaging Materials, Inc., 66 F.R.D. 550, 552 (D.Pa.1975); 8 C. WRIGHT & A. MILLER, FEDERAL PRACTICE AND PROCEDURE § 2264 (1978). In light of the matters contained in admissions numbers 1 through 3, see supra note 4, there remain no material facts in dispute concerning the amount Ms. Burt owes on the note.

With respect to the credit agreement, however, we find that appellee has failed to meet its initial burden as to the applicable rate of interest. Accordingly, the order granting summary judgment in favor of appellee on this question must be reversed.

At the hearing before the trial court, the parties were in sharp disagreement over the correct interest rate applicable to the credit agreement. In its motion as amended, the bank claimed that it was entitled to interest on the credit agreement at an annual rate of 15%. In contrast, Ms. Burt maintained that the correct interest rate was 11.50%.

In support of her argument, Ms. Burt relies on the provisions of the credit agreement contract itself, the bank's request for admissions, and the inconsistencies between the original pleadings filed by the bank and its motion for summary judgment.

The credit agreement provides in pertinent part:

Until all sums owing by Cardholder hereunder (including interest and delinquency charges, if any) have been paid in full, the Cardholder will, on or before the monthly payment date specified, pay to the Union First National Bank on account an amount not less than $5.00 for each $100.00 of the unpaid principal balance in addition to the full amount of any drawing over the maximum limit of the line (subject to a minimum payment of $25.00 unless the unpaid principal balance is less than that amount) together with the FINANCE CHARGE. THE FINANCE CHARGE will consist of interest at the daily periodic rate of 0.031506 on the unpaid principal balance each day which is equivalent to an ANNUAL PERCENTAGE RATE OF 11.50%. Each payment shall be applied first to interest and then to principal. (Emphasis added.)

This provision of the contract clearly states that the finance charge or interest rate will be computed at an annual rate of 11.50%. Similarly, in its complaint the bank demanded judgment on the credit agreement in the amount of $1,569.20 at 11.50% interest per annum. The bank's request for admissions referred to the interest rate as 11.50% and its original motion for...