Citibank South Dakota, N.A. v. Schmidt, 24389.

• Decision Date: 02 January 2008
• Docket Number: No. 24389.,24389.
• Citation: 2008 SD 1,744 N.W.2d 829
• Parties: CITIBANK SOUTH DAKOTA, N.A., Plaintiff and Appellee, v. Wayne E. SCHMIDT, Defendant and Appellant.
• Court: South Dakota Supreme Court

744 N.W.2d 829

2008 SD 1

CITIBANK SOUTH DAKOTA, N.A., Plaintiff and Appellee, v. Wayne E. SCHMIDT, Defendant and Appellant.

No. 24389.

Supreme Court of South Dakota.

Considered on Briefs August 27, 2007.

Decided January 2, 2008.

Robert J. Breit of Breit Law Offices; Sioux Falls, South Dakota, Attorneys for plaintiff and appellee.

Wayne E. Schmidt, Mobridge, South Dakota, Pro Se defendant and appellant.

KONENKAMP, Justice.

[¶ 1.] In this collection action, a debtor representing himself advances several dubious legal theories on why he should not be responsible for paying his entire credit card debt. In circuit court, a judgment was entered against him for the whole amount. Despite some of the debtor's questionable arguments, however, it appears that he was in fact defrauded in a telemarketing swindle. Therefore, part of his debt must be reexamined. We affirm in part, reverse in part, and remand for further proceedings.

Background

[¶ 2.] Wayne E. Schmidt of Mobridge, South Dakota, entered into a credit card agreement with Citibank of South Dakota, N.A. He incurred charges on his card and, for a while, made monthly payments on his account. From July through September 2004, Schmidt used his card for five transactions with an entity in New York calling itself New World Coin and Rarities (New World). It turned out to be a scam. According to the United States Attorney for the Eastern District of New York, New World was a racket operated as a rare coin investment scheme, targeting the elderly. To persuade the victims to buy "rare" coins, which were in reality worthless or nonexistent, telemarketers fraudulently told their elderly prey that the coins they purchased could be resold at substantially greater prices in Europe and that the company would facilitate those resales. As explained by the United States Attorney, "[t]he victims in this case, thinking they were making wise investments based on information provided by the operators of this boiler room, New World Coin and Rarities, tossed their life savings away to the tune of over one million dollars." Two prime defendants, Steven and Thomas Fasano, indicted on fraud charges in connection with this scheme, pleaded guilty in United States District Court in April 2005.¹

[¶ 3.] Schmidt claimed that his account should not be charged for these transactions because he was defrauded. In response, Citibank issued conditional credits and reviewed his claim. After its review, Citibank credited' Schmidt with $4,000, but it ruled that the remaining New World charge of $7000 was "valid." Still, insisting that he was not responsible for the New World transactions or, for that matter, any other of his charges, Schmidt stopped making payments on his account.

[¶ 4.] Citibank declared the entire account balance of $19,279.65 due and owing and brought suit to recover the debt, along with its attorney's fees and costs. When Citibank moved for summary judgment, Schmidt, who represented himself, appeared in court with certain documents, which the circuit court treated as his response. Schmidt later submitted an affidavit after the court gave him additional time. One document Schmidt offered was a Better Business Bureau report about New World being shut down after fraud charges were brought against its owners. One other document Schmidt provided was an arbitration award against Citibank from another dubious entity, Dispute Arbitration Resolution Group. Deeming this "aware to be invalid, the circuit court gave no credit to it and granted summary judgment for Citibank. Schmidt appeals.

Analysis and Decision

[¶ 5.] As in circuit court, Schmidt, who claims he cannot afford a lawyer, represents himself in this appeal. His submissions make it difficult at first to fathom exactly what happened. But now armed with the federal court materials on how the rare coin scheme worked, we can piece together the circumstances. Schmidt told the circuit court that he had a package deal with New World that was never consummated. He gave the court a copy of a 2004 "contract" he made with a company purported to be in London, United Kingdom, to sell certain coins for $131,900. According to Schmidt, he agreed to purchase these coins from New World only on the condition that New World "would resell the coins" to Winston Rarities of London, undoubtedly a nonexistent company. As detailed by the United States Attorney in New York, victims were induced to buy bogus rare coins by advising them that a bid had already been received for the purchase of the victim's coins at a substantial profit to the victim. Based on our present knowledge of events, we can deduce that the coins Schmidt bought, which he denies receiving, were worthless in any event. Citibank obviously saw some merit in Schmidt's plight because it credited his account with $4,000 of the $11,000 charged by New World.

[¶ 6.] Schmidt never filed a formal answer to Citibank's complaint, but he did file a responsive letter, which the circuit court took as his answer. In the letter, Schmidt explained that he was persuaded to purchase coins from New World, which he never received. Also, at the invitation of the circuit court, Schmidt later filed an affidavit in response to the affidavits filed by Citibank. In this affidavit, Schmidt reiterated that "he has not received any of the coins for which New World Rarities has charged his account $11,000 ...." The circuit court considered Schmidt's responses inadequate to preclude summary judgment.

[¶ 7.] Schmidt now argues that South Dakota courts should be required to explain procedures like summary judgments to civil defendants who represent themselves. If people choose to appear in court on their own, they must familiarize themselves with the procedures and laws governing their cases. Judges cannot ethically advise litigants on how to advocate their positions. In view of the increasing number of pro se litigants, however, the Unified Judicial System now provides legal guides for people who want to represent themselves in court. See "A Guide for Representing Yourself in South Dakota Courts," Form UJS-300 Rev. 07/2007, available at www.sdjudicial.com. As explained in this publication, court staff cannot "[g]ive advice or information to one party over another or take sides in a case."

[¶ 8.] It should be unmistakable to lawyers and laypersons alike that when facing a motion for summary judgment, the opposing party must "be diligent in resisting [the motion], and mere general allegations and denials which do not set forth specific facts will not prevent the issuance of a judgment." Bordeaux v. Shannon County Schools, 2005 SD 117, 1114, 707 N.W.2d 123, 127 (quoting Hughes-Johnson Co. v. Dakota Midland Hosp., 86 S.D. 361, 364, 195 N.W.2d 519, 521 (1972)); see also SDCL 15-6-56(e); Chem-Age Industries, Inc. v. Glover, 2002 SD 122, 1118, 652 N.W.2d 756, 765. On appeal, we will affirm summary judgment when the facts and law are clear and no genuine issues of material fact exist. Bordeaux, 2005 SD 117, ¶ 11, 707 N.W.2d at 126 (citations omitted). Despite Schmidt's claim that he was not informed of his rights, the record shows that, within the bounds of judicial ethics, the circuit judge did explain to Schmidt the basic rules applicable to summary judgments. Schmidt answered that he understood what the judge had explained. The judge also allowed Schmidt to submit, after the hearing, certain documents as his response, when normally responses to a motion for summary judgment must be submitted before the hearing.

[¶ 9.] Illustrating too well perhaps the pitfalls of self-representation, Schmidt advances a perplexing array of contentions having little or no relation to the issue in this case. These claims need not be repeated here. Most of them have been found meritless by numerous courts around the country, and Schmidt cites no legal authority to conclude otherwise.

[¶ 10.] We will address, nevertheless, two of Schmidt's more peculiar theories on why he should not have to pay any of his credit card debt. Schmidt presented the circuit court with an arbitration award from an operation in Las Vegas, Nevada, called Dispute Resolution Arbitration Group (DRAG). Schmidt contends that this award concludes the matter in his favor. The award was based on information only Schmidt provided. Citibank did not participate. The "arbitrator" heard one side of the case and concluded that Citibank committed, among other things, "ultra vires conduct" and deceptive trade practices. As a result, the "award" not only eliminated Schmidt's entire debt, but also granted him a large monetary sum against Citibank. Attached to Schmidt's reply brief is a letter from DRAG. The letter gives considerable insight into the devious nature of this outfit. It states,

For those individuals who feel they should pay for what they've used (such as credit card purchases or student loans), please let me remind you that the bank's purpose is to keep people in debt through deceit. So I submit to you, why should you pay on something that was secured by their intentional failure to disclose the true terms of your debt?

DRAG claims that it will "eliminate the debt" and "show a positive credit rating on [the] eliminated accounts[.]" Its printed material also states: "Set Yourself Free! It has worked flawlessly for thousands of people and it will work for you!" DRAG delivered as advertised: its "arbitration award" against Citibank was predetermined.

[¶ 11] We do not know what, if anything, Schmidt paid for his "arbitration." In the end, however, it becomes obvious that to avoid his loss from one fraud, Schmidt fell into the clutch of another. Whether he was truly a victim of this counterfeit arbitration, or whether he was a willing participant, we cannot discern from the record. In any event, a court is entitled to vacate an arbitration award procured by fraud. SDCL 21-25A-24(1). The circuit court rightly gave no credence to DRAG.²

[¶ 12.] By far the most...