Capital One Bank USA v. Khan

• Decision Date: 28 February 2012
• Docket Number: No. ED 96546.,ED 96546.
• Citation: 359 S.W.3d 578
• Parties: CAPITAL ONE BANK USA, Respondent, v. Kamran R. KHAN, Appellant.
• Court: Missouri Court of Appeals

359 S.W.3d 578

CAPITAL ONE BANK USA, Respondent,
v.
Kamran R. KHAN, Appellant.

No. ED 96546.

Missouri Court of Appeals, Eastern District, Division One.

Feb. 28, 2012.

Appeal from the Circuit Court of St. Louis County, Mary Schroeder, Judge.Kamran Khan, St. Louis, MO, Appellant pro se.

Gamache & Myers, Donald A. Horowitz, Crestwood, MO, for Respondent.

ROY L. RICHTER, Judge.

Kamran Khan (“Defendant”) appeals the trial court's order denying his motion to set aside the default judgment entered against him in and in favor of Capital One Bank USA (“Plaintiff”). We dismiss the appeal.

I. BACKGROUND

On May 4, 2010, Plaintiff brought suit against Defendant in order to collect on the outstanding balance on Defendant's Capital One credit card. A default judgment was entered against Defendant on July 19, 2010, but later was set aside following Defendant's claim of clerical errors pursuant to Rule 74.06. On August 27, 2010, Defendant timely filed an answer and counterclaim against Plaintiff. Following multiple continuance motions by both sides, on November 24, 2010, Plaintiff filed its motion to dismiss Defendant's counterclaims for failure to state a claim. On January 10, 2011, the trial court granted Plaintiff's motion to dismiss as to Count II of Defendant's counterclaim, but granted leave for Defendant to file an amended counterclaim as to Count I.

Moving forward, Defendant made the decision to proceed with the case pro se. Therefore, at a scheduled hearing on February 7, 2011, Defendant's counsel (“Counsel”) filed a motion to continue so as to give Defendant time to prepare his own case. The motion was denied. Defendant's counsel then filed a motion to withdraw, stating she had duly informed Defendant that his failure to appear that day, following Counsel's withdrawal, would result in judgment being entered against him. The motion to withdraw was granted

[359 S.W.3d 579]

and, despite Counsel's admonition, Defendant did not appear.¹

In the same hearing, the trial court granted Plaintiff's motion to dismiss Defendant's amended counterclaim and entered what was denominated a “judgment in default” for Plaintiff and against Defendant. The judgment stated that, following defendant's failure to appear, the “cause ... [was] submitted to the court upon the pleadings and evidence” and Plaintiff was entitled to a default judgment. The trial court ordered Defendant to pay Plaintiff $13,326.76 in principal and $2,470.14 in interest, for a total of $15,796.90 plus court costs.

On February 16, 2011, Defendant filed both a motion to set aside the February 7, 2011, judgment under Rule 74.05(d) and a motion for leave to file an amended counterclaim. In its order dated March 14, 2011, the trial court denied both motions. This appeal follows.

II. DISCUSSION

In Defendant's first point on appeal, he argues the trial court erred in denying his motion to set aside the default judgment without an evidentiary hearing because he sufficiently met the pleading requirements of Rule 74.05(d) and stated facts constituting a “meritorious defense” and “good cause” for why the default judgment should be set aside. We disagree.

We will afford considerable deference to a trial court's decision to set aside a default judgment because of the public policy favoring the resolution of cases on the merits and the “distaste our system holds for default judgments.” Brungard v. Risky's Inc., 240 S.W.3d 685, 686 (Mo. banc 2007) (quoting Cont'l Basketball Ass'n v. Harrisburg Prof'l Sports Inc., 947 S.W.2d 471, 473 (Mo.App.W.D.1997)). While our review is limited to determining whether the trial court abused its discretion, broader discretion will be afforded to those decisions granting motions to set aside a default...