Grot v. Capital One Bank (USA), N. A.

Decision Date19 September 2012
Docket NumberA12A1626
PartiesGROT v. CAPITAL ONE BANK (USA), N. A.
CourtGeorgia Court of Appeals

THIRD DIVISION

MILLER, P. J.,

RAY and BRANCH, JJ.

NOTICE: Motions for reconsideration must be physically received in our clerk's office within ten days of the date of decision to be deemed timely filed. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008)

Miller, Judge.

Capital One Bank (USA) Bank, N. A. ("the Bank") filed suit against John B. Grot to recover an unpaid debt on an open account. Grot, appearing pro se, filed a "Motion to Dismiss and Compel Arbitration." The trial court denied the motion to dismiss, but entered an order staying the suit and granting Grot's unopposed motion to compel arbitration. The stay order, however, was subsequently vacated when arbitration was not timely pursued. The trial court overruled Grot's objections to the stay order and did not grant Grot's subsequently filed motion for reconsideration on the matter. The Bank filed a motion for summary judgment, which the trial court granted. Grot appeals, contending that the trial court erred (1) in denying his "Motion to Dismiss and Compel Arbitration;" (2) in entering the Bank's proposed stay order; (3) in failing to grant his motion for reconsideration of the stay orders; (4) in failing to conduct a scheduling hearing; (5) in failing to schedule oral arguments on the motion for summary judgment; and (6) in granting the motion for summary judgment. For the reasons that follow, we affirm.

Summary judgment is proper when the record reveals no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. We review the trial court's grant of summary judgment de novo, construing the evidence and all reasonable inferences in favor of the nonmoving party.

(Footnote omitted.) Melman v. FIA Card Svcs., N.A., 312 Ga. App. 270 (718 SE2d 107) (2011).

The record evidence in this case shows that the Bank filed the instant collection action against Grot, alleging that Grot was liable for the repayment of a debt in the amount of $8,728.67 in principal, $3,753.01 in accrued interest, and $257.50 in court costs. As part of the suit, the Bank also provided notice under OCGA § 13-1-11 (a) (3) that it intended to enforce the provisions of the parties' "Customer Agreement" (the "cardholder agreement") providing for all collection costs, including attorney fees, and that Grot would be liable for $1,273.17 in attorney fees unless payment in full was tendered within ten days from Grot's receipt of the complaint and notice.

Grot filed an answer generally denying his liability and the amount of the debt. Grot also filed a motion to dismiss the case and to compel arbitration, electing to enforce the arbitration provisions of the cardholder agreement. The Bank opposed dismissal of the case, but stated that it had no objection to a stay so that Grot could initiate arbitration proceedings as authorized by the cardholder agreement. The Bank presented a proposed order granting a stay of the case, further mandating that Grot would have 30 days to file an arbitration action, and providing that the case would be reinstated if Grot failed to comply with the time limitation for pursuing arbitration. On September 28, 2011, the trial court denied Grot's motion to dismiss, but entered the Bank's proposed order staying the case for arbitration. On December 1, 2011, after arbitration was not pursued within the mandated 30-day period, the trial court vacated the stay order and reinstated the case.

The Bank thereafter filed a motion for summary judgment, asserting that the undisputed evidence established Grot's liability for the liquidated amount of the debt. To support its motion, the Bank submitted the affidavit of its authorized agent, who averred that she had personal knowledge of the Bank's manner and method of maintaining its accounts receivable and business records; the Bank's records were kept in the ordinary course of business and record entries were made at the time of the transaction; the records showed that Grot applied for and was issued a credit card account by the Bank; the Bank issued the cardholder agreement, which delineated the terms and conditions of the account; Grot proceeded to make charges on the account and was provided with monthly account billing statements setting forth the account activity and requesting payment; and that Grot defaulted by failing to make payments, which resulted in an unpaid principle balance owed of $8,728.67, interest accruing at the applicable statement rate of 19.08% in the amount of $3,753.01, and reasonable attorney fees of $1,273.17. Copies of the cardholder agreement and the monthly account billing statements were included as exhibits to the affidavit. In addition, the Bank's motion attached an offer agreement executed by Grot as the "Authorizing Signatory" on November 10, 2001, reflecting that he was the President of International Consultants of GA ("the Company"). Above the signature line for acceptance of the offer agreement was a provision stating in pertinent part, "I have read the Important Disclosures and Terms of Offer on the back of the letters. . . and I agree on behalf of the Company and myself that the Company and I will be bound as specified therein."

In response to the Bank's motion, Grot generally denied the claims, contending that the cardholder agreement was "not a factual document pertaining to th[e] [c]ase," that he was not personally liable for the debt, and that the amount due was in dispute. Grot also filed a motion for reconsideration of the stay orders, contending that he was never served with the signed orders. Grot filed a "Request for a Scheduling Hearing," which asserted that "there are a significant number of issues that need to be reviewed and/or heard by the Court in oral arguments."

The trial court entered an order overruling Grot's objection to the stay orders. The trial court granted the Bank's motion for summary judgment. Grot filed the instant appeal to challenge the trial court's decisions.

1. Grot contends that the trial court erred in denying his "Motion to Dismiss and Compel Arbitration." We discern no error.

Contrary to Grot's contention, the trial court granted his motion for arbitration and granted a stay of the action to allow arbitration proceedings to be initiated. The record establishes that the Bank did not oppose Grot's motion for arbitration, and pointed out that the parties' cardholder agreement contained an arbitration clause that gave either party the option to elect arbitration as a means to resolve the dispute. The arbitration clause pertinently stated that "[Grot or the Company] or [the Bank] may elect arbitration . . . with respect to any [c]laim, even if the [c]laim is part of a lawsuit brought in court. [Grot or the Company] or [the Bank] may make a motion or request in court to compel arbitration of any [c]laim brought as part of any lawsuit." (Emphasis supplied.) The emphasized language of the arbitration clause reflects that arbitration was optional rather than mandatory, and the filing of a lawsuit was authorized notwithstanding the fact that the claim was arbitrable. The arbitration clause further provided that it was "made pursuant to a transaction involving interstate commerce and shall be governed by and enforceable under the Federal Arbitration Act ("FAA")." Section 3 of the FAA provides in part that

[i]f any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement[.]

9 U.S.C. § 3. In accordance with the procedure set forth under the FAA, the trial court's decision to stay the pending suit to allow the parties the opportunity to proceed to arbitration based upon the parties' agreement was proper. Cf. GF/Legacy Dallas, Inc. v. Juneau Constr. Co., LLC, 282 Ga. App. 14, 16-17 (637 SE2d 511) (2006) (ruling that the trial court was required to stay the action when the claim was referable to arbitration under the parties' agreement); H.R.H. Prince &c. v. Batson-Cook Co., 161 Ga. App. 219, 222 (3) (b) (291 SE2d 249) (1982) (ruling that "[s]ince the trial court correctly ordered arbitration, the correct procedure is to stay judicial proceedings in the . . . action and proceed to arbitration."). It thus follows that the trial court did not err in granting a stay, rather than a dismissal, while affording Grot an opportunity to pursue arbitration.

2. Grot asserts that the trial court erred in entering the Bank's proposed stay order without affording him "the normal 30 day period" to respond to the proposed order and causing him to be responsible for the filing fees associated with the arbitration. Again, no basis for reversal has been shown.

The record shows that on September 28, 2011, the Bank filed its response consenting to Grot's motion for arbitration, along with a proposed order staying the action for arbitration for the trial court's consideration. On that same date, the trial court entered the Bank's proposed order. Several days later, on October 3, 2011, Grot filed an objection to the Bank's proposed order. Grot's objection did not contest the proposed order's provisions for arbitration; rather, Grot argued that the lawsuit was required to be dismissed. Thereafter, the trial court overruled Grot's objection to the order.

As an initial matter, Grot has cited no legal support for his contention that the trial court should have afforded 30 days for his response to the proposed order. But even if Grot did not receive sufficient notice of the proposed order prior to its entry, the alleged error was...

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