Consumer Debt Defense Case Law: Capital One Bank (USA), N.A. v Stewart
Indeed, since plaintiff only moved for a breach of contract, if the defendant had the wherewithal to hire a competent attorney in consumer debt defense, that attorney might have been able to oppose this motion.
1. Breach of [Credit Card] Contract: to establish a breach of contract, a plaintiff must submit sufficient evidence of a credit card agreement, which the defendant accepted by using the credit card and making payments, and that the agreement was breached by the defendant when it failed to make payments. The issuance of a credit card constitutes an offer of credit, and the use of the card constitutes acceptance of the offer. Here, the defendant did not contest the facts alleged in plaintiff’s moving papers regarding the issuance of the credit card, his acceptance of the credit card, his receipt and acceptance of the billing statements itemizing his charges to the credit card and that he had stopped making payments pursuant to the agreement. The absence of underlying agreement would not relieve cardholder of obligation to pay for goods and services he received through use of credit card.