Opinion
No. CV 08 5006387
January 14, 2010
MEMORANDUM OF DECISION RE MOTION FOR SUNMARY JUDGMENT [114]
The plaintiff, Citibank (South Dakota) N.A., brought this action against the defendant, Beverly J. Evvard, to collect a balance on a credit card account of $7,676.87. The sole cause of action stated in the complaint is for an account stated. [Complaint, ¶ 5.]
Initially, Evvard represented herself. In her Answer, Evvard generally denied the allegations of the complaint. The Answer included seven special defenses.
Plaintiff's Motion for Summary Judgment dated May 8, 2009 is now before the court. [114.] The motion was supported by an affidavit made by the plaintiff's agent, Shauna Houghton. Numerous documents were submitted via the Houghton Affidavit. Plaintiff also submitted a Brief in Support of Summary Judgment. The defendant objected to the Motion for Summary Judgment and submitted a brief in support thereof. [117.] The defendant did not submit an affidavit or any other evidence to refute summary judgment.
Our appellate courts have briefly stated the requirements of an action on an account stated:
"The delivery by the [creditor] to the [debtor] of each statement of the latter's account, with the [documentation] upon which the charges against [the debtor's account] 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)." Citibank (South Dakota), N.A. v. Manger, 105 Conn.App. 764, 766 n. 2 (2008).
The Houghton Affidavit states that the plaintiff extended credit to the defendant. ¶ 6. The plaintiff sent defendant monthly statements of her account. ¶ 7. Copies of many, but not all, of the monthly statements sent to the defendant were submitted with the Houghton affidavit. The first such monthly statement covered the period August 26 — September 25, 2002. It showed a total balance of $1,658.65. The minimum amount due was $34. That statement showed a payment of $35 was made on September 6, 2002.
The next statement was for the period September 25 — October 25, 2002. The new balance was $1,623.65 reflecting a $35 payment made on October 14, 2002.
Significantly, the last statement submitted by plaintiff was for the period November 26 — December 26, 2007. The balance due was $7,676.87. As with the other monthly statements sent to defendant, the Houghton Affidavit shows defendant never complained, disputed, or challenged same in any way. The balance due for that statement, $7,676.87, is the principal amount claimed in plaintiff's complaint.
The Houghton Affidavit states "the Defendant neither disputed the validity of the balance or notified plaintiff of any claims, defenses, offsets or counterclaims whatsoever to the balance due and owing" as to any of the billing statements.
The court concludes that no genuine issue of fact exists as to the statements made in the Houghton Affidavit and the supporting monthly statements upon which plaintiff's motion for summary judgment is based.
The Complaint sounds in an account stated. It is a common-law cause of action. Plaintiff does not allege any reliance on state or federal statutes. In her brief opposing summary judgment, defendant attributes erroneous reliance on federal statutory law to the plaintiff. Memorandum of Law in Support of Defendant's Objection to Plaintiff's Motion for Summary Judgment, August 11, 2009, pp. 1-2, 5-10. [117.] Nothing in plaintiff's complaint even alludes to federal statutory law.
Nowhere in defendant's Answer, which includes seven special defenses, is there any mention or citation of any federal statute. Our rules regarding pleading provide: "Facts which are consistent with such statements [plaintiff's statements of fact in the complaint] but show, notwithstanding, that the plaintiff has no cause of action must be specially alleged." Practice Book § 10-50. And, when any claim or defense "is grounded on a statute, the statute shall be specifically identified by its number." Practice Book § 10-3(a).
Much of the argument defendant makes in her brief is based upon federal statutory law. However, since the pleadings are entirely silent regarding federal statutory law, such argument is outside the scope of the pleadings and the court does not consider such argument.
In her brief, plaintiff states: "A genuine issue of material fact exists via Defendant's general denial of Citibank's complaint." Memorandum of Law in Support of Defendant's Objection to Plaintiff's Motion for Summary Judgment, August 11, 2009, p. 1. [117.] That statement contradicts established law.
Our appellate courts have consistently stated the burden on a party opposing summary judgment.
A party seeking to resist summary judgment may not rely on underlying pleadings containing only general denials, or upon the pleadings of someone not a party to the motion for summary judgment to establish the existence of a "genuine issue" as to a material fact. Citizens National Bank v. Hubney, 182 Conn. 310, 312 (1980).
[A] party opposing a summary judgment motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. [T]ypically, [d]emonstrating a genuine issue requires a showing of evidentiary facts or substantial evidence outside the pleadings from which material facts alleged in the pleadings can be warrantably inferred . . . Moreover, [t]o establish the existence of a material fact, it is not enough for the party opposing summary judgment merely to assert the existence of a disputed issue . . . Such assertions are insufficient regardless of whether they are contained in a complaint or a brief . . . Further, unadmitted allegations in the pleadings do not constitute proof of the existence of a genuine issue as to any material fact. (Internal quotation marks omitted.) Tuccio Development, Inc. v. Neumann, 111 Conn.App. 588, 594, 960 A.2d 1071 (2008).
Karkowsky v. Fardy, 118 Conn.App. 480, 484-85 (December 22, 2009).
The Appellate Court, less than a month ago, summarized the burden on a party opposing summary judgment. Summarizing its own recent precedent, Gianetti v. Health Net of Connecticut, Inc., 116 Conn.App. 459, 469, 976 A.2d 23 (August 11, 2009), the Appellate Court stated:
[I]n opposing motion for summary judgment, plaintiff must present concrete evidence demonstrating existence of disputed material fact, absence of responsive evidentiary facts or substantial evidence outside of pleadings to rebut defendant's proof is fatal to plaintiff. Karkowsky v. Fardy, supra, 118 Conn.App. 488.
Plaintiff has not filed any affidavit or equivalent evidence demonstrating the existence of a disputed material fact. This absence is fatal to plaintiff's opposition to summary judgment.
Credit One, LLC v. Head, 117 Conn.App. 92, cert. denied, 294 Conn. 907 (November 5, 2009), 294 Conn. 907 (November 5, 2009), lays to rest the question of whether an action on an account stated is appropriate for collecting a credit card debt. It also definitively holds that in such an action, proof that account statements were rendered to the debtor which the debtor did not dispute in a timely manner establishes the account stated claim. In that case, the second count of the complaint alleged an action on account stated. Plaintiff had submitted several billing statements to the defendant which the defendant did not dispute. Significantly, the final statement plaintiff sent to defendant showed a balance due for the same amount plaintiff claimed to be due in the complaint. Defendant did not protest or dispute the final statement.
In her brief, defendant maintains:
"It should be noted that a recent decision by the Appellate Court of Connecticut found that, submitting a monthly account statement that indicated the alleged amount of debt, and an affidavit stating that the defendant never disputed his monthly billing statements and that the submitted documents . . . are accurate copies of the plaintiff's records, does not satisfy that burden. American Express Centurion Bank v. Head, 115 Conn.App. 10, 17 (2009)." Memorandum of Law in Support of Defendant's Objection to Plaintiff's Motion for Summary Judgment, August 11, 2009, p. 4. [117.]
Defendant grossly misinterprets American Express Centurion Bank v. Head. For example, defendant argues: "The court denied summary judgment because it did not accept the assumption that failure to dispute an account statement pursuant to the FCBA demonstrates a debtor's acceptance to [Sic.] the accuracy of the account statement." Memorandum of Law in Support of Defendant's Objection to Plaintiff's Motion for Summary Judgment, August 11, 2009, p. 4. [117.] That statement shows imagination. But it is just plain wrong. American Express Centurion Bank v. Head does not mention or even allude to the FCBA (Fair Credit Billing Act, 15 U.S.C. § 1601 et seq.).
Very simply, American Express Centurion Bank is not an action on an account stated. And, the Appellate Court cited its precedent, Citibank (South Dakota), N.A. v. Manger, supra, 105 Conn.App. 765, involving a suit sounding in account stated.
Early on in this case, defendant Evvard acted pro se. She filed a motion for summary judgment dated July 2, 2008. [104.] Thereafter she filed a Memorandum of Law in Support of Objection to Motion for a Judgment dated August 13, 2008. [108.] Attached to each of these was a 34-paragraph "Affidavit for Beverly J. Evvard" sworn to on June 27, 2008. Among the paragraphs of that affidavit, Evvard stated:
7. I sent Citibank multiple written disputes of the alleged debt and demand for verification on 8/15/2007, 10/18/2007, 1/23/2008 and 3/31/2008 in accordance with the Fair Credit Billing Act.
This sworn statement might well be sufficient to have raised a material issue of fact. However, it was not submitted in opposition to or in any way connected with the plaintiff's motion for summary judgment now before this court. In American Express Centurion Bank v. Head, 115 Conn.App. 10 (2009), the pro se defendant had submitted an affidavit in connection with another motion. In the affidavit, defendant stated he believed that the claimed charges were not his and that the associated interest was far greater than any amount defendant believed he had incurred. That affidavit was brought to the trial court's attention during the motion for summary judgment hearing. The trial court expressly decided not to consider that affidavit. The Appellate Court did not hold that the affidavit had to be considered when deciding the motion for summary judgment. Rather, the Appellate Court held that the plaintiff had failed to negate the existence of a genuine issue of fact. Therefore, plaintiff did not meet its burden of establishing it was entitled to summary judgment. The Appellate Court did not have to reach a decision on whether defendant's affidavit should have been considered during the summary judgment proceedings.
In this case, defendant Evvard's June 27, 2008 affidavit was not brought to the attention of this court during the summary judgment proceedings. The court must assume that the defendant and her attorney were aware of the affidavit and the basis for it. The court assumes that defendant and her attorney made a strategic decision not to assert this statement as a fact during the summary judgment proceedings because it was not sustainable and credible. The court has not considered Evvard's June 27, 2008 affidavit when deciding the motion for summary judgment.
Summary judgment shall enter in favor of the plaintiff.
The plaintiff claims it is due prejudgment interest at the rate of 10% per year pursuant to General Statutes § 37-3a. The court determines that the plaintiff is entitled to the statutory interest from the due date set forth in the last account statement sent to the defendant, i.e., January 21, 2008 to the date of this decision, January 11, 2010, a period of 723 days.
$7,676.87 x 0.10 % x 723/365 = $1,514.35
Judgment shall enter of the plaintiff in the amount of $7,676.87 for principal plus interest in the amount or $1,520.66 Costs may be taxed by the Clerk.