No. 92-625 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1993 

DAVID C. MOGAN 

Plaintiff and Appellant, 

CITICORP DINERS CLUB INC., 

CAPITAL CREDIT CORPORATION; 

SCHWARTZ & SCHWARTZ; and 

ROGER CANE, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Tenth Judicial District, 

In and for the County of Fergus, 

The Honorable Peter L. Rapkoch, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

David C. Mogan, Lewistown, Montana, Pro Se 

For Respondents: 

Rodney T. Hartman, Don M. Hayes; Herndon, Hartman, 

Sweeney & Halverson, Billings, Montana 

Filed: 

Submitted on Briefs: March 18, 1993 

Decided: March 25, 1993 
Justice Karla M. Gray delivered the Opinion of the Court. 

David C. Mogan appeals from the entry of summary judgment in 

favor of Citicorp Diners Club Inc. by the Tenth Judicial District, 

Fergus County. We affirm. 

The sole issue on appeal is whether the District Court erred 

in granting summary judgment. 

Appellant Mogan filed a complaint against Citicorp Diners Club 

Ins. (Citicorp), Capital Credit Corporation, Schwartz & Schwartz 

and Roger Cane on February 16, 1990. The complaint alleged that 

defendants may have failed to comply with the federal Fair Debt 

Collection Practices Act (FDCPA). Only one summons was issued and 

served--to Citicorp--in the action. The remaining defendants were 

never served and did not appear. 

In answer to the complaint, Citicorp denied Mogan's 

allegations. It also counterclaimed against Mogan, seeking 

recovery of the delinquent balances on his two credit card 

accounts. Pursuant to the terms of the credit card agreements, 

Citicorp also sought attorneysg fees. 

Citicorp moved for summary judgment on both Mogan's claim and 

its counterclaim. The District Court granted the motion and 

subsequently entered judgment in Citicorpls favor dismissing 

Mogan's claim and awarding Citicorp the principal amounts due on 

Mogan's credit card accounts plus interest and attorneys' fees. 

Mogan appeals. 

Summary judgment is proper when the pleadings and discovery on 
file, together with any offered affidavits, establish that no 

genuine issues of material fact exist and the moving party is 

entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P. 

Here, Citicorp's counterclaim sought collection of monies owed by 

Mogan on his credit card accounts. Citicorp established by 

affidavit the existence of the debt, the amount of the debt, the 

fact that the debt remained unpaid, and the responsibility of 

Diners Club card holders for attorneys' fees in the event 

delinquent accounts must be referred for collection. Mogan did not 

specifically deny the existence or amount of the debt, that it 

remained unpaid or that card holders were liable for attorneys* 

fees in answers to discovery requests or by affidavit. Mogan 

having failed to establish the existence of any genuine issue of 

fact material to Citicorp's counterclaim, the District Court did 

not err in granting summary judgment to Citicorp on the 

counterclaim pursuant to Rule 56(c), M.R.Civ.P. 

In granting summary judgment to Citicorp, the District Court 

also dismissed Mogan's cause of action against Citicorp under the 

FBCPA with prejudice. Citicorp established that no genuine issues 

of material fact existed as to the FDCPA claim against it and that 

it was entitled to judgment as a matter of law. Mogan provided the 

court with no evidence or legal authority which would bring 

Citicorp within the definition of "debt collectorw under the FDCPA 

and does not cite this Court to any authority supporting reversal 

of the District Court's decision. Furthermore, we note that Mogan 

himself requested dismissal of his action against Citicorp, without 
prejudice. Given the state of the record before the District Court 

and this Court, we conclude that the District Court did not err in 

dismissing Mogan's complaint against Citicorp with prejudice. 

Finally, we note that Mogan asserts error in the District 

Court's dismissal of his claim against Capital Credit Corporation, 

Schwartz & Schwartz and Roger Cane. This assertion of error is 

frivolous and totally unfounded. As noted above, those defendants 

were never served and did not appear; they were not before the 

District Court. The District Court's order granting summary 

judgment to Citicorp and its judgment in Citicorp's favor does not 

mention the other defendants and does not dismiss the claim against 

them. 

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 

1988 Internal Operating Rules, this decision shall not be cited as 

precedent and shall be published by its filing as a public document 

with the Clerk of the Supreme Court and by a report of its result 

to Montana Law Week, State Reporter and West Publishing Company. 

Affirmed. 

We concur: 
March 25, 1993 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the following 

named: 

DAVID C. MOGAN 

P.O. Box 21 

Lewistown. MT 59457 

Rodney T. Hartman 

HERNDON, HARTMAN. SWEENEY & HALVERSON 

P.O. Box 80270 

Billings, MT 59108-0270 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA 

BY: 

Deputy