Clay County District Court File No. 14-CV-12-2924.
Jennifer M. Zwilling, Derrick N. Weberg, Messerli & Kramer, PA, Plymouth, Minnesota (for respondent)
Bruce A. Schoenwald, Stefanson Law, Moorhead, Minnesota (for appellant)
Considered and decided by Rodenberg, Presiding Judge; Chutich, Judge; and Klaphake, Judge. [*]
Appellant Marvin H. Schlick appeals from a grant of summary judgment in favor of respondent Midland Funding, LLC on its claims arising under a credit card agreement. Because there are genuine issues of material fact regarding appellant's statute-of-limitations defense which preclude summary judgment, we affirm in part, reverse in part, and remand for further proceedings.
Appellant opened a credit card account with Providian National Bank (Providian) in 1998. Appellant used the account for several years, but eventually stopped making new purchases with the credit card and stopped making payments on the account. Nonpayment is an event of default under the credit card agreement. After default, Providian assigned its rights on the account to respondent.
Two clauses in the credit card contract are at issue in this lawsuit. First, the contract contains the following choice-of-law provision: "No matter where you live, this Agreement and your Account are governed by federal law and by New Hampshire law." The contract also contains this provision regarding attorney fees: "You promise to pay us . . . all collection costs we incur including, but not limited to, reasonable attorney's fees and court costs. (If you win the suit, we will pay your reasonable attorney's fees and court costs.)"
Respondent commenced this action on April 8, 2009. In its complaint, respondent alleged that it was entitled to reasonable attorney fees based on the credit card agreement. The complaint set forth $4, 100.84 as reasonable attorney fees, based on a contingency fee agreement between respondent and its counsel representing a percentage of the total debt allegedly owed by appellant.
The parties dispute the exact date of default on the account. Respondent contends that the last payment on the account was May 27, 2003, and that the default date would therefore have been 30 days after the last payment, or approximately June 26, 2003. Minnesota's six-year statute of limitations would have expired on June 26, 2009 if these contentions are true. Appellant asserts in his responses to interrogatories that he has not made any payments "since at least 2002" and that respondent falsified its records reflecting a later default date. If appellant's assertion is true, the six-year statute of limitations would have expired, at the latest, on December 31, 2008, and before respondent began this lawsuit.
Appellant admits (1) that he was issued a credit card account by Providian, (2) that he received periodic billing statements from Providian, (3) that he made payments to Providian toward the balance of the account, and (4) that he did not settle the account with Providian. Appellant did not produce any documents in his response to document demands, claiming that any documents he had relating to this account were destroyed in a flood.
Respondent moved for summary judgment on November 13, 2012,  arguing theories of breach of contract, account stated, quasi-contract, and unjust enrichment. Respondent submitted several affidavits in support of its motion. One affidavit relevant to this appeal was ...