                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
               ARIZONA COURT OF APPEALS
                                 DIVISION ONE


                      CITIBANK NA, Plaintiff/Appellee,

                                        v.

               RICHARD L. BARRETT, Defendant/Appellant.

                             No. 1 CA-CV 13-0434
                              FILED 4-17-2014


           Appeal from the Superior Court in Maricopa County
                          No. CV2012-016249
             The Honorable Sally Schneider Duncan, Judge

                         REVERSED; REMANDED


                                   COUNSEL

Seidberg Law Offices, PC, Phoenix
By Kenneth W. Seidberg, Joseph L. Whipple
Counsel for Plaintiff/Appellee

Richard L. Barrett, Phoenix
Defendant/Appellant



                       MEMORANDUM DECISION

Chief Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge John C. Gemmill and Judge Randall M. Howe joined.
                         CITIBANK v. BARRETT
                          Decision of the Court

J O H N S E N, Judge:

¶1            Richard L. Barrett appeals from a summary judgment
holding him liable to Citibank, N.A., on a claim for account stated arising
from a credit card debt. We reverse and remand the judgment.

                FACTS AND PROCEDURAL HISTORY

¶2            Citibank filed a complaint alleging Barrett owed a credit
card debt of $13,158.01 based on a theory of account stated. After Barrett
answered, denying liability, Citibank moved for summary judgment. In
its motion, Citibank argued Barrett had opened a Citibank credit card
account and received periodic monthly statements stating the account
balance. Citibank asserted Barrett had failed to object to the statements,
and his silence signified acquiescence to the accuracy of the balance and
his liability for it. In support of its motion, Citibank submitted an
unsigned, undated document titled "Card Agreement" and an affidavit,
signed by Jennifer Shepherd, who attested that an open account in
Barrett's name had an unpaid balance of $13,158.01. Citibank also offered
copies of a series of credit card statements purportedly mailed to Barrett
from August 2011 to August 2012. The statements each reflected a balance
owed and periodic interest charges, but no transactions. The credit card
statements also evidenced payments of $300 - $600 in several months.

¶3            In response, Barrett submitted an affidavit denying he
executed any credit card agreement with Citibank during the disputed
period and denying having made any transactions with a Citibank credit
card that would have resulted in a balance on the account. Although he
admitted he had a Citibank credit card in the past, he asserted he closed
that account in August 2007 or 2008 and thereafter, had made monthly
payments until he stopped receiving notices specifying any further
obligation. Barrett denied receiving the statements attached to Citibank's
motion and averred he had objected in writing after Citibank's attorney
contacted him about the debt. He attested that he had not lived at the
address listed on the statements since June 2002. Finally, he argued the
Shepherd affidavit and accompanying documents submitted by Citibank
were inadmissible hearsay.

¶4            With its reply, Citibank argued it had sent the account
statements to Barrett's correct address and submitted a copy of his driver's
license and copies of his personal checks, all showing the same address. It
pointed out that Barrett's checks were made out to "Citi" for "6035," the
last four digits of the account number associated with the credit card.


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                          CITIBANK v. BARRETT
                           Decision of the Court

Moreover, the dates listed on the checks and the amounts payable
corresponded with payments made on the credit card account in
September 2011, October 2011 and February 2012.

¶5           The superior court granted Citibank's motion and entered
judgment in its favor for $13,158.01 plus attorney's fees of $603.00. Barrett
timely appealed. We have jurisdiction pursuant to Article 6, Section 9 of
the Arizona Constitution, and Arizona Revised Statutes section 12-2101(A)
(2014). 1

                               DISCUSSION

A.   Standard of Review.

¶6            We review the entry of summary judgment de novo, and
view the facts and inferences drawn therefrom in the light most favorable
to the party against whom judgment was entered. Lennar Corp v.
Transamerica Ins. Co., 227 Ariz. 238, 242, ¶ 7, 256 P.3d 635, 639 (App. 2011).
Summary judgment is appropriate when the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits, show that "there is no genuine dispute as to any material fact
and the moving party is entitled to judgment as a matter of law." Ariz. R.
Civ. P. 56(a); Tilley v. Delci, 220 Ariz. 233, 237, ¶ 10, 204 P.3d 1082, 1086
(App. 2009).

B.   Genuine Issues of Material Fact Preclude Summary Judgment.

¶7             In its complaint, Citibank alleged Barrett was liable on an
account stated. "An account stated is an agreed balance between the
parties to a settlement." Monte Produce, Inc. v. Delgado, 126 Ariz. 320, 321,
614 P.2d 862, 863 (App. 1980); see also Restatement (Second) of Contracts §
282 (1981). "An account stated . . . operates as an admission of its contents
for evidentiary purposes. It also operates as a promise to pay." Id. cmt. c.

¶8            A claim for account stated requires evidence of an
agreement or a "meeting of the minds" between the parties. Trimble Cattle
Co. v. Henry & Horne, 122 Ariz. 44, 47, 592 P.2d 1311, 1313 (App. 1979). A
formal contract is not required; the debtor's assent to the amount owed
may be inferred from his or her conduct. Id. As applicable here, a
debtor's "retention without objection for an unreasonably long time of a

1     Absent material revision after the relevant date, we cite a statute's
current version.



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                         CITIBANK v. BARRETT
                          Decision of the Court

statement of [the] account" constitutes a promise to pay the amount due
on the account. Restatement (Second) of Contracts § 282(1); see also Trimble
Cattle Co., 122 Ariz. at 47, 592 P.2d at 1314.

¶9            Citibank does not point to an express agreement entered by
the parties, but instead argues an account stated exists because Barrett
received monthly statements in 2011-12 and failed to timely object. In
opposition, Barrett points to his affidavit, in which he swore he did not
receive the statements on which Citibank relied. In that affidavit, he
attested that despite the driver's license record and the personal checks
that indicated otherwise, he has not lived at the address listed on the
statements since June 2002. Cf. American Express Centurion Bank v.
Williams, 807 N.Y.S.2d 612, 613 (N.Y. App. Div. 2005) (summary judgment
proper when defendant argued he did not receive the account statements
but did not deny living at the address listed on the statements); Compton v.
Citibank (South Dakota), N.A., 364 S.W.3d 415, 418 (Tex. App. 2012)
(recovery on account stated only proper "if the evidence showed account
statements were sent" to and received by the defendant).

¶10           Barrett also argues Citibank was not entitled to summary
judgment because in response to the motion, he averred that he
"dispute[d] and ha[s] always disputed the charges to and the balance due
and owing" on the account. Citibank challenges that contention, pointing
to Shepherd's affidavit as evidence of Barrett's failure to object. The
affidavit states: "The attached Account Statement does not reflect any
outstanding disputes on the Account." Setting aside whether a monthly
credit card statement normally would reflect a dispute with the
cardholder, which Shepherd's affidavit does not address, with Citibank's
reply in support of its motion, Citibank submitted a letter from Barrett in
which Barrett stated he "dispute[d] the validity/amount" of the amount
said to be owed on the account.

¶11            Without expressly acknowledging that Barrett made any
objection, Citibank further argues Barrett failed to timely object to the
debt, thereby precluding him from disputing the liability. As noted, a
party's "retention without objection for an unreasonably long time of a
statement of [the] account" constitutes a promise to pay the amount due
on the account. Restatement (Second) of Contracts § 282(1). "How long a
time is unreasonable is a question of fact to be answered in the light of all
the circumstances" and so is generally inappropriate for resolution at the
summary judgment stage. Restatement (Second) of Contracts § 282 cmt. b;
see also Ariz. R. Civ. P. 56(c).



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                          CITIBANK v. BARRETT
                           Decision of the Court

¶12           Citibank argues, however, that the reasonableness of the
time a party takes to object to a debt may be determined as a matter of
law. In support, it cites 15 U.S.C.A. § 1666 (2014), which Citibank asserts
imposes a 60-day "dispute requirement" on cardholders. Section 1666,
titled "Correction of billing errors," requires creditors to investigate and
correct billing errors that cardholders report within 60 days. But the
statute does not provide that a failure to dispute a statement within 60
days amounts to tacit assent to the balance. See id; Gray v. American
Express Co., 743 F.2d 10, 13-14 (D.C. Cir. 1984).

¶13            Citibank also cites Minskoff v. American Express Travel Related
Servs. Co., Inc., 98 F.3d 703 (2d Cir. 1996), and Transamerica Ins. Co. v.
Standard Oil Co. (Indiana), 325 N.W.2d 210 (N.D. 1982), in arguing that no
effective objection precludes its claim. But neither case concerned a claim
for an account stated. Instead, in each the issue was whether the
cardholder was liable for purchases made by individuals with apparent
authority. See Minskoff, 98 F.3d at 705-06, 708 (cardholder sued credit card
company to recover funds employee paid with forged checks);
Transamerica Ins. Co., 325 N.W.2d at 212, 214 (corporate cardholder was
liable for acts of former manager). Moreover, it was undisputed in those
cases that the cardholders received monthly statements that would have
put them on notice of billing errors. See Minskoff, 98 F.3d at 709;
Transamerica Ins. Co., 325 N.W.2d at 215.

¶14           Genuine issues of material fact concerning whether Barrett
received the monthly statements and whether he objected within a
reasonable time preclude entry of summary judgment in Citibank's favor.
See Wells Fargo Bank, N.A. v. Allen, 231 Ariz. 209, 213, ¶ 17, 292 P.3d 195,
199 (App. 2012); Restatement (Second) of Contracts § 282. 2




2      Barrett also argues the credit card statements on which Citibank’s
motion was based are inadmissible hearsay that do not fall within the
business-records exception to the hearsay rule. See Ariz. R. Evid.
803(6)(A). We agree; the Shepherd affidavit did not provide evidence that
the statements were "made at or near the time by – or from information
transmitted by – someone with knowledge." See Ariz. R. Evid. 803(6)(A).


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                     CITIBANK v. BARRETT
                      Decision of the Court

                         CONCLUSION

¶15        For the foregoing reasons, we reverse the summary
judgment and remand for further proceedings consistent with this
decision.




                             :MJT




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