IN RE DEVERGILIO

Burton Perlman, Judge

Plaintiff's divorced wife is the defendant/debtor Sandra K. Devergilio, aka Sandra K. Green (hereafter "Devergilio"). In his Amended Complaint, plaintiff makes reference to six credit cards which he says Devergilio obtained without his knowledge during their marriage and were either in the name of plaintiff, or plaintiff and defendant. The cards were issued by Capital One Bank, MBNA, CitiBank Preferred Visa, Bank of New York, Victoria's Secret, Wachovia Bank (hereafter collectively referred to as "the issuers"). The Bank of New York account was transferred to Commercial Financial Services, Inc., and Commercial Financial is now substituted for Bank of New York as an issuer. Default judgments have been entered against all of the issuers other than CitiBank.

Now before the court is plaintiff's motion for summary judgment against defendants Devergilio, CitiBank, and Commercial Financial Services, Inc. Because default judgment has been entered against Commercial Financial Services, Inc., the court will not consider the present motion applicable to that defendant. In support of his motion, plaintiff relies upon his affidavit filed with the Court on April 21, 2000, the Consent Judgment of Divorce, and the deposition testimony of Devergilio. Defendant Devergilio filed a response to plaintiff's motion, and an affidavit in support of her response. CitiBank filed no response to the motion.

It is not disputed that plaintiff and Devergilio were husband and wife who were divorced on April 22, 1998 by a Consent Judgment of Divorce. The Consent Judgment refers to the credit card debt of the issuers and provides that Devergilio will hold plaintiff harmless thereon. In his complaint, plaintiff says that the debt represented by the credit cards should be held nondischargeable pursuant to 11 U.S.C. § 523(a)(2)(A), § 523(a)(6), and § 523(a)(15). Plaintiff advances as a fact, supported by his affidavit, that the credit cards obtained from the issuers were obtained without his approval, authorization or consent, and this position of fact should entitle him to a summary judgment of nondischargeability. Devergilio, however, expressly states in her affidavit on this motion that she did not obtain extensions of credit from the issuers without plaintiff's knowledge, acquiescence or belief. Plaintiff's motion for summary judgment founders on this direct contradiction of the factual premise upon which plaintiff relies. There is a genuine issue of fact in the matter, and summary judgment may not be granted. See Fed.R.Civ.P. 56(c); Fed.R.Bankr.P. 7056.

We further address the motion as directed at defendant CitiBank. While CitiBank did not file a response to the motion, it did file an answer to the Amended Complaint. In its Answer, CitiBank raises the question whether this court "has jurisdiction to hear this Complaint as it pertains to CitiBank." This court indeed has no jurisdiction over any dispute between plaintiff and CitiBank in connection with the present controversy. Both parties are non-debtors, and plaintiff's Amended Complaint states no cause of action against CitiBank. Accordingly, CitiBank is dismissed as a defendant in this adversary proceeding for lack of subject matter jurisdiction.

Plaintiff's motion for summary judgment against Devergilio is denied. CitiBank is dismissed as a defendant in this adversary proceeding.

So Ordered.