N.C. Court of Appeals: FIA Card Services v. Caviness- Implied Contract for Credit Card

Summary: FIA brough suit against Caviness for a credit card debt in the amount of $10,150.19. Lacking the actual credit card agreement, it present as evidence monthly billing statements from November 2008 through March 2011, copies of checks from Caviness (and his business), as well as from a third party, and an affidavit from its authorized representative. Caviness appealed the summary judgment, arguing both that the third part check contradicted the allegation that a contract existed between himself and FIA and that the affidavit from an employee of FIA was inherently suspect. Due to these defects, Caviness argued, FIA failed to establish the existence of a valid contract. The Court of Appeals rejected this, finding that, although the inclusion of the third party check in evidence was inexplicable, the other four checks from Caviness, were sufficient to show a contract existed. Further, there was not, without contradictory affidavits or other grounds for impeachment, any basis for questioning the veracity of the affidavit from an employee of FIA. The court concluded that FIA had presented sufficient evidence that an implied contract existed between the parties. An implied contract “arises where the intent of the parties is not expressed, but an agreement in fact, creating an obligation, is implied or presumed from their acts.” Creech v. Melnik, 347 N.C. 520, 526, 495 S.E.2d 907, 911 (1998) (citation omitted). Here “at a minimum, an implied contract was formed between the parties because plaintiff’s extension of credit constituted an offer, and defendant’s use of the credit card amounted to an acceptance of plaintiff’s offer.” Commentary: Caviness might have deposed the FIA employee, seeking to determine her qualifications to swear out an affidavit, especially since FIA Card Services is, through multiple corporate mergers and sales, a successor to MBNA and now part of Bank of America, potentially making it much more difficult for one individual to state that she was fully aware of the history and record keeping for this account. For a copy of the opinion, please see: FIA Card Services v. Caviness- Implied Contract for Credit Card