Opinion
No. CV11 600 5366
July 11, 2011
MEMORANDUM OF DECISION ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (#102)
The plaintiff, Citibank (South Dakota) N.A., moves for summary judgment in this credit card debt collection case. In its complaint, the plaintiff alleges that the defendant, Karen Battistelli, became indebted to the plaintiff in the sum of $6,524.62 for charges incurred on the defendant's Home Depot credit account. The defendant's answer admitted that she resided at the residence where the credit card bills were sent, but denied the remaining allegations and raised two special defenses: failure to mitigate damages and statute of limitations. The plaintiff then filed a motion for summary judgment with supporting memoranda and evidence. The defendant has failed to respond to the motion.
"Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). "[A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed." (Emphasis omitted; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).
The plaintiff attaches several exhibits to its motion, including the defendant's answer, and copies of credit card monthly statements from May 2008 to July 2010. These documents reveal that the defendant admits the following: (a) she entered into a credit card agreement with HomeDepot; (b) she or others with her authorization charged items to this account; (c) she made periodic payments on this account to the plaintiff but eventually failed to make timely payments as due under the agreement; and (d) she continues to fail to make payment.
The plaintiff also attaches an affidavit from Mary E. Krum, a representative of the plaintiffs, who avers that she personally reviewed the materials relating to the defendant's account and that the plaintiff is the owner of the debt. Lastly, the plaintiff's monthly statements indicate that the HomeDepot credit card is issued by Citibank (South Dakota), N.A.
Where a plaintiff creditor provides evidence that it has generated monthly statements to a defendant who fails to object in a timely manner, the defendant is liable for the balance due under the account stated theory. "A cause of action for accounts stated centers on the obligation to pay a sum certain arising upon an examination by the parties of unsettled claims of indebtedness, and an agreement between them that all the articles are true and a particular sum remains due. This obligation may arise when there is no express promise to pay the particular sum, as where mutual claims are set off one against the other, and a resultant balance agreed upon as due . . . It is not essential to the support of this obligation that an actual examination by the parties of the items of indebtedness should be proved; it is sufficient that the conduct of the parties is equivalent to such examination and to an agreement upon a specific sum and a promise to pay that sum . . . The essential and controlling fact upon which the obligation arises is an agreement between the parties that items of indebtedness, before open to dispute, are true and amount to a particular sum agreed upon as due from the defendant to the plaintiff." (Citations omitted.) Dunnett v. Thornton, 73 Conn. 1, 15-16, 46 A. 158 (1900). "The delivery by the [creditor] to the [debtor] of each statement of the latter's account, with the [documentation] upon which the charges against it were based, [is] a rendition of the account so that retention thereof for an unreasonable time constitute[s] an account stated which is prima facie evidence of the correctness of the account." General Petroleum Products, Inc. v. Merchants Trust Co., 115 Conn. 50, 56, 160 A. 296 (1932).
In the present case, the plaintiff has submitted monthly statements that it provided to the defendant. The defendant has not shown that she disputed the contents of these statements in a timely manner. See American Express Centurion Bank v. Head, 115 Conn.App. 10, 17 n. 2, 971 A.2d 90 (2009) (acknowledging that many trial courts "seem to conclude that [a creditor plaintiff] is entitled to summary judgment on the basis of evidence that the defendant received monthly statements and failed to dispute their content"). She also has not produced any evidence to show that the debt amount claimed by the plaintiff is incorrect. All the defendant has done is to plead two special defenses. This, however, does not contradict that she incurred the debt, that the amount of the debt is as the plaintiff claims or that she failed to pay it. Accordingly, the motion for summary judgment is granted.