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Capital One Bank (USA), N.A. v. Davey

Court of Appeals of Arizona, First Division

December 19, 2013

CAPITAL ONE BANK (USA), N.A., a national banking association, Plaintiff/ Appellee,
ALENA SYGAL DAVEY and MICHAEL DAVEY, wife and husband, and individually, Defendants/Appellants.

Not for Publication – Rule 111(c), Rules of the Arizona Supreme Court.

Appeal from the Superior Court in Maricopa County No. CV2011-014280 The Honorable Mark H. Brain, Judge.


Hammerman & Hultgren PC, Phoenix By Jon R. Hultgren and Allan R. Draper Counsel for Plaintiff/Appellee.

Alena Sygal Davey and Michael Davey Defendants/Appellants In Propria Persona.

Judge Kenton D. Jones delivered the decision of the Court, in which Presiding Judge Peter B. Swann and Judge Patricia K. Norris joined.


JONES, Judge.

¶1 Alena Sygal-Davey and Michael Davey, wife and husband, appeal from the grant of summary judgment adjudging them liable to Capital One Bank (Capital One) for unpaid credit card charges. Specifically, the Daveys argue the trial court erred in granting summary judgment as there is a genuine issue of material fact regarding the applicability of an arbitration provision within the underlying contract and, as to Michael, the Daveys assert Capital One was not entitled to judgment as a matter of law. For the following reasons, we reverse in part, affirm in part, and remand to the trial court.


¶2 In December 2003, and prior to her marriage to Michael, Alena applied for a Capital One credit card and was issued one shortly thereafter. Alena used the card regularly for approximately six and a half years. During that time period, Alena and Michael married.

¶3 On August 4, 2011, Capital One brought suit to collect an alleged unpaid balance of $14, 610.98, plus accrued interest of $873.76, "plus accruing interest at the contract rate of 14.65%" from June 22, 2011. Capital One attached three documents to its complaint: 1) the "Mail-In Invitation" (application) Alena signed in opening the account; 2) Alena's December 24-January 23, 2011 billing statement illustrating the previous balance on the card being $14, 356.05, a charge of $254.93 for "Fees and Interest, " and a new balance of $14, 610.98; and 3) a Capital One litigation support representative's affidavit stating that Capital One issued a card to Alena, the card was used in accordance with the Customer Agreement governing the account, and that the Daveys had breached the Customer Agreement by failing to make required payments.

¶4 The Daveys answered[1] on November 4, 2011, admitting Alena had entered into the contract and that they had defaulted on the account, denying the amount owed on the account, and arguing the debt obligation was solely Alena's as she had contracted with Capital One prior to her marriage to Michael. The Daveys also asserted, as an affirmative defense, their intention to enforce the arbitration provision which was a part of the contract between the parties at the time Alena initially applied for the card.

¶5 Along with their answer, the Daveys filed two motions. Initially, the Daveys moved jointly to dismiss or stay the action until contractually mandated arbitration had taken place between the parties. Further, Michael moved independently to dismiss the claim against him, arguing he was not a proper party to the lawsuit as Alena had contracted for the card prior to their marriage and the complaint failed to assert that the debt was a community obligation. In its response to the motion to dismiss/stay the action, Capital One denied the account was subject to an arbitration clause, stating the Daveys failed to provide evidence that supported their contention. In their reply, the Daveys notified the trial court they had filed a request for production of documents asking Capital One to produce all documents related to the existence of the arbitration provision in their contract and requested the trial court defer ruling on the motion until after the filing of Capital One's response. When the Daveys failed to supplement their motion with the exact arbitration provision language, the trial court denied both motions.

¶6 On July 9, 2012, Capital One moved for summary judgment. Capital One contended Alena had breached the parties' contract by failing to make required payments. The motion further asserted that the debt was a community obligation as the account balance was paid to $0 following the Daveys' marriage; as such, the sum owing at the time of the breach had accrued during the marriage. Capital One argued it had made a prima facie showing that no genuine issue of material fact existed, and that the Daveys had failed to controvert Capital One's assertion. With its supporting statement of facts, Capital One attached Alena's credit card application, the same ...

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