N.C. Ct. of Appeals: American Express Bank v. Voyksner- Choice of Law; Account Stated

Summary:

American Express sued Voyksner for $41,023.26 owed on a credit agreement. Voyksner filed a pro se answer denying “each and every allegation” in the complaint. American Express then moved for summary judgment, supported by an affidavit detailing that the account was opened in 1999, that Voyksner had been sent the card member agreement, the methods by which American Express kept records, etc., further attaching the monthly statements from the final year of the account. In his own affidavit, Voyksner averred that American Express had failed to produce the original agreement, which he stated provided for two years without interest. He further asserted that he did not receive monthly statements, since the online versions were difficult to access.

Voyksner also then requested arbitration, as provided in the card member agreement. During the arbitration, Voyksner continued to represent himself, but also obtained assistance from World Law Group in preparing legal documents, despite World Law Group being enjoined from providing services to North Carolina residents. The arbitrator ruled in favor of American Express, which sought a judgment to confirm the arbitration award, with Voyksner opposing that arguing that the obligation to American Express was that of his business and not him personally, as well as raising the gap in the account history from 1999 until 2011. The trial court, despite recognizing this gap, found in favor of American Express. Voyksner appealed.

The Court of Appeals first found that despite the card member agreement providing that Utah law would control, there was no “substantial relationship” between Voyksner and Utah nor was there a “reasonable basis” for applying Utah law, since neither Voyksner resided there nor was the transaction consummated there. The factors for determining if a choice of law provision are valid include:

(1) in what state the plaintiff received and executed the contract;
(2) in what state the defendant received the signed contract;
(3) what state the plaintiff engaged in business or was licensed to conduct business; and
(4) where the work the plaintiff was obligated to complete under the contract was performed.

That American Express asserted that it was “located” in Utah was view as dubious, as all of its addresses were in Texas. Even if accurate that its principal place of business, the Court of Appeals held that such was not, by itself, sufficient to form a “reasonable basis” for the choice of Utah law.

That notwithstanding, the Court of Appeals found that Utah and North Carolina have virtually identical requirements for establishing an account stated, making the error harmless. These elements are:

(1) a calculation of the balance due;
(2) submission of a statement to the opposing party;
(3) acknowledgment of the correctness of that statement by the opposing party or failure to object in a reasonable period of time; and
(4) a promise, express or implied, by the opposing party to pay the balance due.

Here American Express met these requirements and the judgment was affirmed.

Commentary:

The narrow application contractual choice of law provisions can be vital, particularly as North Carolina has relatively short statutes of limitations.

That American Express was allowed in its card member contract to set the “reasonable period of time” for objecting to an account stated, would seem, however, to allow a party to shorten the other parties’ time under other statutes of limitations to contest a balance.

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