An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                NO. COA13-780
                       NORTH CAROLINA COURT OF APPEALS

                             Filed:     7 January 2014


CITIBANK, SOUTH DAKOTA, N.A.,
     Plaintiff

      v.                                      Wayne County
                                              No. 09 CVD 1731
RALPH H. GABLE,
     Defendant


      Appeal by defendant from order entered 21 March 2013 by

Judge R. Les Turner in Wayne County District Court.                      Heard in

the Court of Appeals 20 November 2013.


      Bernhardt & Strawser, P.A., by Harrison A. Lord, Tonya L.
      Urps, and Charles C. Euripides, for plaintiff-appellee.

      Robert E. Fuller, Jr., for defendant-appellant.


      CALABRIA, Judge.


      Ralph H. Gable (“defendant”) appeals from an order granting

summary    judgment     in   favor     of   Citibank,     South    Dakota,     N.A.

(“Citibank”).      We affirm.

      Defendant applied for and received an AT&T branded credit

card through Universal Bank, N.A.               (“Universal Bank”).           On 2

January 2002, Universal Bank merged with Citibank, and Citibank
                                       -2-
became the owner of all right, title, and interest in Universal

Bank’s   accounts,    including       defendant’s    credit    card   account.

Citicorp Credit Service, Inc. (USA) (“CCSI”) and Citibank are

both wholly owned subsidiaries of Citigroup, Inc., and CCSI is

the custodian of records for all Citibank credit card accounts.

Citibank mailed defendant periodic statements of his account,

and defendant remained current on his account until 15 October

2008, the date of defendant’s last credit card payment.

    On 7 May 2009, Citibank’s attorney sent defendant a letter

regarding the debt and demanding payment.              Defendant responded

in a letter dated 5 June 2009, disputing “the validity of the

numbers of the alleged debt,” alleging corporate mismanagement,

and demanding “a copy of any and all agreements and contracts

which [defendant] has executed with Citigroup/Citibank.”

    Citibank filed a complaint against defendant on 24 June

2009 in Wayne County District Court, alleging that defendant was

liable   for     charges   to   his    credit   card   in     the   amount   of

$23,049.80 and attorney fees.           Defendant filed an answer on 26

August   2009,    requesting    that   the   trial   court    award   Citibank

“whatever amount it can prove itself to be entitled to recover.”

Citibank moved for summary judgment on 24 November 2009 on the

grounds that there were no genuine issues of material fact and
                                    -3-
supported its motion for summary judgment with an affidavit from

Jennifer Shepherd (“Shepherd”), a CCSI employee.               Shepherd had

been appointed as the custodian of defendant’s account records

for the purpose of making the affidavit.              After a hearing, the

trial court granted summary judgment in favor of Citibank, and

ordered defendant to pay $23,049.80 plus interest and attorney

fees.    Defendant appeals.

      “Our standard of review of an appeal from summary judgment

is de novo; such judgment is appropriate only when the record

shows that ‘there is no genuine issue as to any material fact

and that any party is entitled to a judgment as a matter of

law.’”    In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572,

576   (2008)   (quoting   Forbis   v.   Neal,   361   N.C.   519,    524,   649

S.E.2d 382, 385 (2007)).

      Defendant argues that the trial court erred in granting

summary judgment in favor of Citibank because there were genuine

issues of material fact as to the identity of the creditor.

Defendant further contends there was a lack of documentation of

the account and the basis for the account.            We disagree.

      In a motion for summary judgment, the moving party must

first meet its burden of demonstrating that no genuine issues of

material fact exist.       Lexington State Bank v. Miller, 137 N.C.
                                     -4-
App. 748, 751, 529 S.E.2d 454, 455-56 (2000) (citation omitted).

Once the moving party has met its burden, the nonmoving party

may not rely upon the pleadings but must “set forth specific

facts showing a genuine issue of fact for the jury; otherwise,

summary judgment, if appropriate, shall be entered against the

nonmoving party.”       Harris v. Stewart, 193 N.C. App. 142, 146,

666 S.E.2d 804, 806 (2008) (citations omitted).

    In the instant case, Citibank supported their motion for

summary judgment with Shepherd’s sworn affidavit, which included

evidence of the debt.      In addition, according to the affidavit,

defendant was the cardholder associated with the account and

Citibank became the owner of all right, title, and interest in

defendant’s account after Universal Bank merged with Citibank.

Citibank    occasionally   modified    the    credit    card   agreement   as

provided by the original agreement.           Defendant was notified and

given an opportunity to reject any modifications prior to the

effective   date   by   cancelling    the    account.    Defendant’s   last

payment on the account was posted on 15 October 2008, and he was

in default on the account as of the date of Citibank’s motion.

    Citibank attached two exhibits to Shepherd’s affidavit: a

copy of the most current credit card agreement and a series of

credit card statements attributed to defendant’s account between
                                          -5-
17 November 2005 and 19 August 2009.                The credit card agreement

attached       to    Shepherd’s     affidavit    specifically    indicates     that

Citibank issued the account, and the agreement was signed by a

Citibank       officer.        The     agreement    also     bears   a   copyright

attributed to Citibank.              Each credit card statement from the 19

February 2007 statement forward notes that AT&T and the AT&T

logo     are    trademarks      licensed    to     Citigroup,    Inc.,   and   the

statements from 19 February 2007 through 19 December 2008 all

bear the “Citi” logo.

       By contrast, defendant opposed Citibank’s motion with his

own affidavit consisting of general allegations largely echoing

his answer to Citibank’s complaint.                In his affidavit, defendant

admitted to having an AT&T Universal Rewards Card, but claimed

that Citibank had not produced any evidence to show his legal

responsibility for the debt and that neither Citibank nor its

attorneys had acted in good faith.                   Nevertheless, Citibank’s

affidavit and supporting materials provide substantial evidence

regarding the validity of the debt and establishing defendant as

debtor    and       Citibank   as    creditor,   while     defendant’s   affidavit

fails to set forth specific facts showing a genuine issue of

material fact for a jury.               Harris, 193 N.C. App. at 146, 666

S.E.2d at 806.
                                     -6-
       Defendant   also    argues    on    appeal   that    Citibank   is   in

violation of the Fair Debt Collection Practices Act pursuant to

15 U.S.C. 1692g, and is therefore prohibited from bringing any

action until it complies with the demand of his 5 June 2009

letter to forward “all agreements and contracts” he had executed

with Citibank.     We disagree.

       The Fair Debt Collection Practices Act (“the Act”) applies

largely to debt collectors, defined as a person who “regularly

collects or attempts to collect, directly or indirectly, debts

owed or due or asserted to be owed or due another.”                 15 U.S.C.

1692a(6).    A creditor under the Act is “any person who offers or

extends credit creating a debt or to whom a debt is owed[.]”                 15

U.S.C. 1692a(4).         The language of the relevant portion of the

Act applies specifically to debt collectors:

            If the consumer notifies the debt collector
            in writing within the thirty-day period . .
            . the debt collector shall cease collection
            of the debt . . . until the debt collector
            obtains verification of the debt . . . or
            the name and address of the original
            creditor, and a copy . . . is mailed to the
            consumer by the debt collector.

15 U.S.C. 1692g(b) (emphasis added).           While the record indicates

that defendant did make a request for “any and all agreements

and contracts” he had executed with Citibank, it also indicates

that   Citibank    had    taken   ownership   of    all   right,   title,   and
                                             -7-
interest in defendant’s account.                      In demanding payment on the

account, Citibank was not attempting to collect a debt owed to

another entity, but instead was attempting to collect a debt

defendant owed to Citibank.                  Under the circumstances, Citibank

qualified     as    a    creditor       under       the    Act   as     the     entity       that

extended credit to defendant under the credit card agreement.

15 U.S.C. 1692a(4).             As such, the Act is inapplicable here, and

this argument has no merit.

      Citibank presented an abundance of evidence through their

affidavit and exhibits that defendant was the credit card holder

for   the    account      at    issue.        In    addition,      Citibank          presented

evidence     indicating         that    it    was    the    creditor      for        the   debt.

Citibank fulfilled its burden of establishing that no genuine

issue   of     material         fact     existed       by    presenting         substantial

documentation       of         defendant’s         liability       for        the      account.

Defendant     failed       to     present         specific       facts    sufficient          to

overcome     the    motion        for       summary       judgment       and        erroneously

contends     that       Citibank       is    in     violation      of     the       Fair     Debt

Collection Practices Act. 15 U.S.C. 1692g(b).                           We hold that the

trial   court      properly       granted         summary    judgment          in    favor    of

Citibank, and we affirm.

      Affirmed.
                         -8-
Judges HUNTER, Robert C. and HUNTER, JR., Robert N. concur.

Report per Rule 30(e).
