                             No.    92-625
          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                   1993


DAVID C. MOGAN
          Plaintiff and Appellant,


CITICORP DINERS CLUB INC.,
CAPITAL CREDIT CORPORATION;
SCHWARTZ & SCHWARTZ; and
ROGER CANE,
          Defendants and Respondents.



APPEAL FROM:     District Court of the Tenth Judicial District,
                 In and for the County of Fergus,
                 The Honorable Peter L Rapkoch, Judge presiding.
                                      .


COUNSEL OF RECORD:
          For Appellant:
                 David C. Mogan, Lewistown, Montana, Pro Se
          For Respondents:
                 Rodney T. Hartman, Don M. Hayes; Herndon, Hartman,
                 Sweeney & Halverson, Billings, Montana


                              Submitted on Briefs:    March 18, 1993
                                             Decided: March 25, 1993
Filed:
Justice Karla M. Gray delivered the Opinion of the Court.


     David C. Mogan appeals from the entry of summary judgment in
favor of Citicorp Diners Club Inc. by the Tenth Judicial District,
Fergus County.       We affirm.
     The sole issue on appeal is whether the District Court erred
in granting summary judgment.
     Appellant Mogan filed a complaint against Citicorp Diners Club
Ins. (Citicorp), Capital Credit Corporation, Schwartz          &   Schwartz
and Roger Cane on February 16, 1990.           The complaint alleged that
defendants may have failed to comply with the federal Fair Debt
Collection Practices Act (FDCPA). Only one summons was issued and
served--to Citicorp--in the action. The remaining defendants were
never served and did not appear.
     In     answer    to    the   complaint,   Citicorp   denied   Mogan's
allegations.         It also counterclaimed against Mogan, seeking
recovery of the delinquent balances on his two credit card
accounts.     Pursuant to the terms of the credit card agreements,
Citicorp also sought attorneysg fees.
     Citicorp moved for summary judgment on both Mogan's claim and
its counterclaim.          The District Court granted the motion and
subsequently entered judgment in Citicorpls favor dismissing
Mogan's claim and awarding Citicorp the principal amounts due on
Mogan's credit card accounts plus interest and attorneys' fees.
Mogan appeals.
    Summary judgment is proper when the pleadings and discovery on
file, together with any offered affidavits, establish that no
genuine issues of material fact exist and the moving party is
entitled to judgment as a matter of law.         Rule 56(c), M.R.Civ.P.
Here, Citicorp's counterclaim sought collection of monies owed by
Mogan on his credit card accounts.          Citicorp established by
affidavit the existence of the debt, the amount of the debt, the
fact that the debt remained unpaid, and the responsibility of
Diners Club card holders for attorneys' fees in the event
delinquent accounts must be referred for collection. Mogan did not
specifically deny the existence or amount of the debt, that it
remained unpaid or that card holders were liable for attorneys*
fees in answers to discovery requests or by affidavit.            Mogan
having failed to establish the existence of any genuine issue of
fact material to Citicorp's counterclaim, the District Court did
not   err   in   granting   summary   judgment   to   Citicorp   on   the
counterclaim pursuant to Rule 56(c), M.R.Civ.P.
      In granting summary judgment to Citicorp, the District Court
also dismissed Mogan's cause of action against Citicorp under the
FBCPA with prejudice. Citicorp established that no genuine issues
of material fact existed as to the FDCPA claim against it and that
it was entitled to judgment as a matter of law. Mogan provided the
court with no evidence or legal authority which would bring
Citicorp within the definition of "debt collectorw under the FDCPA
and does not cite this Court to any authority supporting reversal
of the District Court's decision. Furthermore, we note that Mogan
himself requested dismissal of his action against Citicorp, without
prejudice. Given the state of the record before the District Court
and this Court, we conclude that the District Court did not err in
dismissing Mogan's complaint against Citicorp with prejudice.
        Finally, we note that Mogan asserts error in the District
Court's dismissal of his claim against Capital Credit Corporation,
Schwartz    &   Schwartz and Roger Cane.   This assertion of error is
frivolous and totally unfounded. As noted above, those defendants
were never served and did not appear; they were not before the
District Court.        The District Court's order granting summary
judgment to Citicorp and its judgment in Citicorp's favor does not
mention the other defendants and does not dismiss the claim against
them.
        Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1988 Internal Operating Rules, this decision shall not be cited as
precedent and shall be published by its filing as a public document
with the Clerk of the Supreme Court and by a report of its result
to Montana Law Week, State Reporter and West Publishing Company.
     Affirmed.


We concur:
                                         March 25, 1993

                                 CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:


DAVID C. MOGAN
P.O. Box 21
Lewistown. MT 59457


Rodney T. Hartman
HERNDON, HARTMAN. SWEENEY & HALVERSON
P.O. Box 80270
Billings, MT 59108-0270

                                                     ED SMITH
                                                     CLERK OF THE SUPREME COURT
                                                     STATE OF MONTANA

                                                     BY:
                                                       Deputy
