in the Court of Appeals 17 May 2018.
by plaintiff from order entered 13 July 2017 by Judge Becky
T. Tin in Mecklenburg County No. 16-CVD-20456 District Court.
Sessoms & Rogers, P.A., by Andrew E. Hoke, for
appellee brief filed.
Unifund CCR, LLC brought a debt collection action against
Defendant Isabelle Francois and obtained an entry of default
after Francois failed to appear and respond to Unifund's
default judgment hearing-where Francois again failed to
appear-the trial court, on its own initiative, denied
Unifund's motion for default judgment and dismissed the
complaint, concluding that the complaint was barred by the
statute of limitations and violated a statutory provision
prohibiting debt collectors from pursuing claims they know
are barred by the statute of limitations.
reverse and remand for entry of judgment in Unifund's
favor. As explained below, the trial court had no authority
to raise a statute of limitations defense on behalf of a
defaulting litigant who did not appear. Likewise, the court
had no authority to dismiss the complaint based on a
perceived violation of a statute that does not authorize
courts to act on their own initiative, but instead creates a
separate civil enforcement mechanism for the debtor and the
and Procedural History
2011, Defendant Isabelle Francois opened a credit card
account with Citibank. Francois began making purchases on the
account in March 2013 and exceeded the account's credit
limit in May 2013. Francois stopped making payments in May
2013. Citibank then closed the account and sent Francois a
final billing statement showing a balance of $4, 618.08 with
a payment due date of 20 November 2013.
six consecutive months of nonpayment, Citibank charged off
the account. Plaintiff Unifund CCR, LLC ultimately acquired
the past due account.
November 2016, Unifund filed a complaint against Francois for
the past due amount owed on the account. With its complaint,
Unifund filed an affidavit from its custodian of records
along with the billing records for the account, and
documentation showing Unifund's acquisition of the
account. The complaint stated that it was filed within the
statute of limitations. Unifund served Francois with the
summons but Francois did not appear in the action or file a
May 2017, Unifund moved for entry of default and for default
judgment. The Mecklenburg County Clerk of Superior Court
entered default against Francois the same day.
trial court heard the motion for default judgment on 10 July
2017. Francois did not appear at the hearing. Unifund
presented testimony from a Citibank custodian of records and
its own custodian of records. Unifund also submitted the