CAPITAL ONE BANK (USA), N.A. VS. CARMEN ROMAN VS. BUDGETRENT-A-CAR SYSTEM, INC.(L-1516-10, MERCER COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5408-14T2

CAPITAL ONE BANK (USA), N.A.,

Plaintiff,

v.

CARMEN ROMAN,

Defendant/Third-Party
Plaintiff-Appellant,

v.

BUDGET RENT-A-CAR SYSTEM, INC.
(improperly plead as
Budget Rent-A-Car Systems,
Inc.),

Third-Party Defendant-
Respondent.
________________________________________________________________

BUDGET RENT-A-CAR SYSTEM, INC.,
(improperly pled as Budget Rent-A-Car
Systems, Inc.),

Fourth-Party Plaintiff,

v.

ISRAEL ROMAN,

Fourth-Party Defendant.

________________________________________________________________
 Argued January 18, 2017 – Decided June 28, 2017

Before Judges Koblitz, Rothstadt and Sumners.

On appeal from the Superior Court of New
Jersey, Law Division, Mercer County, Docket
No. L-1516-10.

Joseph M. Pinto argued the cause for appellant
(Polino and Pinto, P.C., attorneys; Mr. Pinto,
on the briefs).

Gregg A. Ilardi argued the cause for
respondent (Harwood Lloyd, LLC, attorneys; Mr.
Ilardi, of counsel and on the brief).

PER CURIAM

This dispute arose from defendant/third-party plaintiff

Carmen Roman's rental of a vehicle from third-party

defendant/fourth-party plaintiff Budget Rent-A-Car System, Inc.

(BRAC), which was damaged during the rental's term.1 Roman appeals

from the Law Division's final judgment dismissing with prejudice

her third-party complaint against BRAC. Judge Philip C. Carchman

1
Plaintiff Capital One Bank (Capital One) originally brought
this action against Roman seeking payment of an unpaid credit card
balance in the amount of $17,371.79. Roman filed an answer,
counterclaim, and third-party complaint against BRAC for alleged
violations of the New Jersey Consumer Fraud Act (CFA), N.J.S.A.
56:8-1 to -20. BRAC filed an answer and counterclaim against
Roman – alleging she breached her duty and obligation under the
rental agreement by failing to make payments for the damaged
vehicle – and filed a fourth-party complaint against Israel Roman
(Israel), Roman's brother. In May 2012, Roman settled with Capital
One Bank when it agreed to pay her $2500 and forgive her then
unpaid credit card balance.

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entered the judgment after he completed the bench trial that was

required by our earlier decision, in which we reversed and remanded

a different judge's involuntary dismissal of Roman's pleading at

the end of her case pursuant to Rule 4:37-2(b). See Capital One

Bank v. Roman, No. A-6382-11 (App. Div. July 16, 2013) (slip op.

at 5-7). Judge Carchman dismissed the third-party complaint based

on his finding that Roman's testimony was incredible as it was

"belied by written documents which show[ed] a contrary story," as

well as by her inconsistent testimony. The judge concluded she

failed to sustain her burden of proof.

On appeal, Roman contends that the judge's findings and

conclusions were not supported by "sufficient credible evidence."

She argues that she could not have been liable for damage to the

rental vehicle because Israel was driving the vehicle when the

damage occurred. Roman claims she proved BRAC "committed an

unconscionable commercial practice in violation of the [CFA]" when

it charged her credit cards for the damage "without her

authorization." We disagree and affirm.

Roman was the only witness to testify at trial. We summarized

her testimony in our earlier opinion as follows:

Roman traveled to Puerto Rico on July 8, 2006.
Upon arrival, she rented a car from a BRAC
franchise, Budget Aguadilla, at the airport
in Aguadilla, Puerto Rico. On July 14, 2006,
Roman allowed her brother [Israel] to drive

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the rental car, even though he was not an
authorized driver under the rental agreement.
While driving, he had an accident which caused
significant damage to the vehicle. Israel did
not have auto insurance, and Roman's own auto
insurer would not pay for the damage because
she was not driving the car when the accident
occurred. On the rental agreement, the box
declining insurance was checked.

Following the accident, at Budget Aguadilla's
direction, Roman obtained an estimate for the
cost to repair the damage. Roman arranged for
the return of the damaged vehicle to Budget
Aguadilla, and rented a vehicle from another
car rental agency for the remainder of her
trip. Budget Aguadilla thereafter sought
reimbursement for the damage to its vehicle,
and Roman agreed, in numerous letters
introduced into evidence, to pay for the
damage.

Budget Aguadilla proceeded to charge over
$1,300 on a Commerce Bank card Roman had
provided, and then charged almost $12,000 on
Roman's Capital One . . . credit card for the
balance of the damage to the rental vehicle.
Roman worked out an agreement with Capital One
to pay $200 per month and paid this amount for
over two years, until she could no longer
afford the payments.

. . . .

At trial, Roman testified that she initially
provided the clerk at Budget Aguadilla with
her Capital One credit card; however, this
card was not accepted, as Roman's credit limit
on the card was only $500. At that point,
Roman gave the clerk her Commerce Bank card,
which had a higher credit limit and was
accepted. Roman testified that she did not
read the rental agreement because she was
rushed by the clerk, as there was a line of
people behind her. Roman stated that she had

4 A-5408-14T2
 not authorized Budget Aguadilla to charge her
credit card and claimed that she had not
admitted liability by paying $200 per month
for over two years, but made the payments to
keep her credit from being "completely
ruined."

[Capital One, supra, slip op. at 1-3.]

In our earlier decision, we directed the trial judge to

"conclude the trial." Id. at 7. On remand, the trial continued

before Judge Carchman after the original judge recused himself.

At the trial, BRAC rested without calling witnesses, relying

only upon documents that were admitted into evidence during the

trial. The judge reserved making a decision until he reviewed all

of the evidence, including the transcript of Roman's testimony.

Judge Carchman dismissed Roman's third-party complaint on

July 15, 2015, placing his reasons on the record on the same date

in a comprehensive oral decision that spanned thirty-two

transcript pages. In his decision, the judge noted that while he

did not have an opportunity to observe Roman's testimony live and

that his credibility findings were "essential to the disposition

of the issues raised," he found that "the credibility issues could

be resolved easily, given the record that had been created by both

parties during the litigation of this matter." He explained in

detail how Roman's testimony was inconsistent and contradicted by

various documents discussed during her testimony and found her

5 A-5408-14T2
testimony to be incredible. He concluded Roman was not credible

due to the contradictions between her oral testimony and documents

in the record. As to Roman's consumer fraud claim, he stated that

"[w]hatever claims she had for the unauthorized use of the credit

card, and it's really the unauthorized extension of credit by

[Capital One], have been resolved by [Capital One]. [Capital

One], in fact, forgave an outstanding debt of $17,000 and actually

paid [Roman] money." The judge found, "more importantly[,]" Roman

has not "sustained her burden of establishing by a preponderance

of the evidence that not only is there [a] violation of the

consumer fraud act, but that her rendition of the facts as to what

transpired is accurate." The judge then described the various

inaccuracies in Roman's testimony that were contradicted by the

documents he considered. Judge Carchman entered an order for

judgment and this appeal followed.

Our standard of review of factual findings "premised on the

testimony of witnesses and written evidence at a bench trial" is

a deferential one. D'Agostino v. Maldonado, 216 N.J. 168, 182

(2013).

Final determinations made by the trial court
sitting in a non-jury case are subject to a
limited and well-established scope of review:
"we do not disturb the factual findings and
legal conclusions of the trial judge unless
we are convinced that they are so manifestly
unsupported by or inconsistent with the

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 competent, relevant and reasonably credible
evidence as to offend the interests of
justice[.]"

[Ibid. (quoting Seidman v. Clifton Sav. Bank,
S.L.A., 205 N.J. 150, 169 (2011) (alteration
in original).]

"To the extent that the trial court's decision constitutes a legal

determination, we review it de novo." Ibid.

Roman argues Judge Carchman's credibility findings cannot be

sustained because he "did not have the opportunity to see and hear

Roman, the only witness in the case." She also contends he erred

by finding BRAC could hold her liable for damage to the rental

vehicle because at the time of the accident it was being driven

by an unauthorized driver, who, she claims, did not cause the

accident. Further, she contends BRAC never established there was

any money owed by Roman to it for the damaged vehicle or that she

authorized the amount to be charged to her credit card. As a

result, she avers, BRAC committed an unconscionable commercial

practice by charging her credit cards. Also, she asserts the

judge improperly relied upon Roman's settlement with Capital One

in determining that she had no loss. Finally, Roman challenges

the judge's finding that her testimony was contradicted by various

documents.

Applying our limited standard of review, we find Roman's

arguments to be without sufficient merit to warrant discussion in

7 A-5408-14T2
a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially

for the reasons expressed by Judge Carchman in his thorough oral

decision. We simply note that his credibility findings were

consistent with the fact that "a witness's credibility is always

at issue and may be tested in a variety of ways," Serrano v.

Underground Utils. Corp., 407 N.J. Super. 253, 280 (App. Div.

2009) (quoting Avila-Blum v. Casa De Cambio Delgado, Inc., 236

F.R.D. 190, 192 (S.D.N.Y. 2006)) (addressing discovery demands

relating to a party's immigration status), so the fact that the

judge did not rely on first-hand observation of Roman as a witness

in support of his credibility findings was of no moment.

Affirmed.

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