Cacv of Colorado, LLC v. Spiehler

• Decision Date: 03 June 2009
• Docket Number: No. 09-151.,09-151.
• Citation: 11 So.3d 673
• Parties: CACV OF COLORADO, LLC v. Justin R. SPIEHLER, III and Candace Cullum Spiehler a/k/a Candace L. Gordon.
• Court: Court of Appeal of Louisiana — District of US

11 So.3d 673

CACV OF COLORADO, LLC v. Justin R. SPIEHLER, III and Candace Cullum Spiehler a/k/a Candace L. Gordon.

No. 09-151.

Court of Appeal of Louisiana, Third Circuit.

June 3, 2009.

Rehearing Denied July 8, 2009.

D. Michael Dendy, New Orleans, LA, for Plaintiff-Appellant, CACV or Colorado, LLC.

Ped C. Kay, III, Hal J. Broussard, Lafayette, LA, for Defendant-Appellee, Justin R. Spiehler, III.

Candace Cullum Spiehler, Broussard, LA, In Proper Person.

Court composed of MARC T. AMY, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.

PAINTER, Judge.

Plaintiff, CACV of Colorado, LLC (CACV) appeals the judgment of the trial court dismissing its collection action against Candace Cullum Spiehler, pursuant to a motion for directed verdict.

FACTS

Candace Cullum Spiehler and Justin R. Spiehler, III were married in 1996 and divorced in 2002. Prior to their marriage, Mr. Spiehler had a First USA credit card. It was his recollection that he cancelled the card and that it might have been kept in a drawer somewhere. Mr. Spiehler further testified that at sometime between 1996 and 1998, Mrs. Spiehler found the card and had it reactivated. He only discovered the reactivation after Mrs. Spiehler lost her job, and the bill began coming to their home. At that point the balance was approximately $8,545.00 which Mr. Spiehler paid, including with the payment a letter notifying the credit card company that the card should be closed forever and stating that it should not, under any circumstances, be re-activated. However, at some point prior to the Spiehler's divorce, Mrs. Spiehler re-activated the card. Mr. Spiehler testified that he did not discover that it had been reactivated until he was trying to obtain a loan, and a credit report showed that the card had been used and had an unpaid balance.

The indebtedness incurred in the use of that card was ultimately acquired by CACV, which filed this suit. At the trial of the matter, CACV introduced the testimony of Magic West, a representative of Collect America, of which CACV is a subsidiary, as well as an affidavit stating that CACV purchased the debt. CACV also presented a statement of the amount due on the account at the time it was purchased, a bill of sale that came with the account, and a credit card agreement from Bank One which incorporated the credit card agreement from First USA dated July 1998. After CACV submitted its case, Defendants moved for a directed verdict asserting that CACV had not sufficiently proven the amount of the debt. The court granted the motion and dismissed CACV's claims. CACV appeals the dismissal only as to Mrs. Spiehler.

DISCUSSION

CACV asserts on appeal that the trial court erred in granting the motion for directed verdict in that it produced sufficient evidence to constitute a prima facie case.

Plaintiff correctly notes that the courts of this state have treated suits to collect credit card debt as suits on open account. See Sears, Roebuck and Co. v. Dennies, 03-1160 (La.App. 5 Cir. 3/30/04), 870 So.2d 1080; Sears, Roebuck and Co. v....