Judge James Matthews
Discover Bank moved for summary judgment on its claim Kenney breached the contract terms of a credit card agreement by failing to make payments. The court found bank failed to establish prima facie proof of its specific terms of the agreement in effect when the credit account was opened, with revisions, or the outstanding balance due, through the date of the final statement. Also, without proof of actual mailing, or standard office practice designed to ensure items were properly addressed and mailed, bank could not avail itself of the rebuttable presumption of receipt by Kenney. The court found the affidavit of Scholey, a litigation support specialist for Discover Products, failed to show her personal knowledge of bank’s business practices and her statements were conclusory and lacked distinct facts to support her claim of personal knowledge. The court noted it appeared Scholey’s personal knowledge was obtained from documents created by bank and no proper foundation for bank’s business records was laid. Further, bank’s own papers showed contradictions regarding if Kenney “executed” an agreement with bank or if the card was entered into by ratification of terms through subsequent use of the credit account. Bank failed to show entitlement to judgment on its contract breach claim.