American Express Bank v. Tanne

2017 UT App 222

THE UTAH COURT OF APPEALS

AMERICAN EXPRESS BANK FSB,
Appellee,
v.
JAMES TANNE,
Appellant.

Per Curiam Opinion
No. 20160363-CA
Filed November 30, 2017

Fourth District Court, American Fork Department
The Honorable Christine S. Johnson
No. 159102739

James Tanne, Appellant Pro Se
Keisuke Ushijima, Attorney for Appellee

Before JUDGES MICHELE M. CHRISTIANSEN, DAVID N. MORTENSEN,
and RYAN M. HARRIS.

PER CURIAM:

¶1 James Tanne appeals from the district court’s March 25,
2016 order granting American Express Bank, FSB’s motion for
summary judgment. We affirm.

¶2 Tanne first argues that the district court erred in granting
the motion for summary judgment because there was a disputed
issue of material fact concerning the original date the parties
entered into the credit agreement at issue. In its motion for
summary judgment, American Express mistakenly stated that
the credit agreement was dated April 24, 2015, when in fact, the
credit agreement began in March 2002. Tanne argues that this
misstatement required the district court to deny the motion for
summary judgment. However, the motion directly referenced
the affidavit of American Express’s custodian of records, which
correctly stated the date the credit account was created. Thus,
American Express Bank v. Tanne

both the district court and Tanne were aware of the correct date,
which was supported by affidavit. Under the circumstances, the
district court correctly determined that American Express’s
misstatement did not create a disputed issue of material fact.

¶3 Tanne next asserts that the district court erred in granting
the motion for summary judgment because he disputed all of the
material facts set forth in American Express’s motion for
summary judgment. However, Tanne’s affidavit merely denies
American Express’s allegations. Tanne failed to set forth any
admissible evidence to dispute the facts set forth in the affidavit
of the custodian of records and the documents attached to that
affidavit. Tanne’s mere denials of the facts set forth in the motion
for summary judgment were insufficient to create a disputed
issue of material fact. See Utah R. Civ. P. 56(c), (e).

¶4 The next claim raised is Tanne’s brief is that the district
court erred in its interpretation of Utah Code section 70A-3-604,
which provides that “[a] person entitled to enforce an
instrument, with or without consideration, may discharge the
obligation of a party to pay the instrument by an intentional
voluntary act, such as surrender of the instrument to the party,
destruction, [or] mutilation.” Utah Code Ann. § 70A-3-604(1)
(LexisNexis 2009). Tanne maintains that American Express failed
to provide the original signed credit agreement; accordingly, the
original must have been destroyed. As an initial matter, Tanne
fails to provide any analysis concerning whether this section of
the commercial code applies to credit agreements. However,
even if this court were to assume for the sake of argument that
this provision of the code applied generally to credit agreements,
Tanne has failed to set forth sufficient facts to demonstrate it is
applicable here. Specifically, Tanne never presented any
evidence that American Express’s “destruction” of the original
credit agreement was an intentional voluntary act meant to
discharge the debt. Accordingly, the district court did not err in
concluding that Utah Code section 70A-3-604, was not
applicable.

20160363-CA 2 2017 UT App 222
American Express Bank v. Tanne

¶5 Tanne next argues that the district court erred in
concluding that American Express’s cause of action for breach of
contract was not barred by the statute of frauds. “The Utah
Statute of Frauds expressly provides that credit agreements like
the one at issue here are enforceable without the signature of the
debtor.” MBNA America Bank, N.A. v. Goodman, 2006 UT App
276, ¶ 8, 140 P.3d 589. Utah Code section 25-5-4(2)(e) provides
that a credit agreement is enforceable without any signature as
long as the “debtor is provided with a written copy of the terms
of the agreement,” the agreement states that “any use of the
credit offered shall constitute acceptance of those terms,” and the
debtor “uses the credit offered.” Utah Code Ann. § 25-5-4(2)(e)
(LexisNexis 2013). In this case, the affidavit of the custodian of
records and the documents attached to that affidavit
demonstrated that Tanne was provided with the document, that
the document contained the language required by the statute,
and that Tanne used the credit account. Tanne provides no
evidence to the contrary. Thus, the district court properly
concluded that the statute of frauds did not apply to this matter.

¶6 Finally, Tanne argues that the district court erred in
denying his motion to continue the hearing on the summary
judgment motion. The motion was based on the fact that the
district court’s initial notice of the hearing was mailed to an
incorrect address. A corrected notice was later sent to Tanne
before the hearing. The district court acknowledged the mailing
error but determined that Tanne was not harmed because Tanne
had actual knowledge of the hearing. Specifically, the notice of
the hearing was sent only after the parties, including Tanne,
agreed upon the hearing date and time during a conference call
with the court. Accordingly, Tanne was not prejudiced by the
error in mailing the notice of the hearing because Tanne had
received actual notice of the hearing during the telephonic
conference at which he agreed to the date.

¶7 American Express’s motion for summary judgment and
its attached affidavit demonstrated that, based on the
undisputed material facts, American Express was entitled to

20160363-CA 3 2017 UT App 222
American Express Bank v. Tanne

judgment for breach of contract. See MBNA America Bank, 2006
UT App 276, ¶ 6 (setting forth the elements of a breach of
contract claim). The parties entered into a credit agreement,
American Express performed its obligations under the
agreement by providing credit to Tanne, he used the credit
provided under the contract and then defaulted on his
payments, and American Express was damaged by the breach of
contract. Tanne averred no facts in his response to the motion for
summary judgment, other than simple denials, that placed any
of the material facts into dispute. Accordingly, the district court
properly granted the motion for summary judgment.

¶8 Affirmed.

20160363-CA 4 2017 UT App 222