LLC v. Gabrielle Beam (2010)

MEMORANDUM OF DECISION MOTION FOR SUMMARY JUDGMENT # 103

BACKGROUND

Cach, LLC filed an action naming Gabrielle Beam as the defendant for money due on a credit account.   The plaintiff alleges that there was credit extended to the defendant and that as of August 14, 2009, she had failed to pay the balance due of $13,920.73.   The plaintiff further alleges that monthly accounts were supplied to the defendant for the indebtedness.   The defendant entered a general denial of the complaint.

By motion dated January 13, 2010 the plaintiff has requested a summary judgment against the defendant for the amount alleged in the complaint.   In support of the motion for summary judgment the plaintiff has provided an affidavit of Kara Egizi who is an employee of Cach, LLC. Ms. Egizi has provided an affidavit that she reviewed the records of the original creditor who entered into the agreement with the defendant in which she agreed to make payments for extended credit.   Ms. Egizi does not provide the records of the prior creditor.   The custodian of the Cach, LLC records, Tesha Tarvin, provides an affidavit in which she indicates that she is familiar with the records of the plaintiff and provides a copy of the records from Cach, LLC. Attached to the affidavit is a two-page document entitled “Account Information Report.”   The affidavit of Ms. Tarvin does not refer to the defendant in this action other than in the caption.   Ms. Tarvin also submits a Certificate of Assignment document in which she indicates that there was an account purchased by Cach, LLC with the name of Gabrielle Beam consisting of a past due balance of $13,706.68.

The defendant has submitted an objection to the motion for summary judgment dated January 19, 2010.   The matter was heard at short calendar on February 1, 2010.

DISCUSSION

“Practice Book Section 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”  “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.”  (Internal quotation marks omitted.)   Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007).  “The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ․ and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.”  (Internal quotation marks omitted.)  Bednarz v. Eye Physicians of Central Connecticut, P.C., 287 Conn. 158, 169, 947 A.2d 291 (2008).

The basis of the plaintiff's claim is the theory of “account stated.”   This theory provides the debtor with a reasonable period of time to question all or part of the indebtedness, after which the “account stated” is conclusively presumed to be the amount due.   Citibank (South Dakota) N.A. v. Stewart, Superior Court, Judicial District of New Haven, Docket No. CV 05 4012384 (November 30, 2005, Silbert, J.) (40 Conn. L. Rptr. 337).   Several Superior Court decisions have recognized the validity of an account stated cause of action in Connecticut involving a banking institution.   Citibank (South Dakota) N.A. v. Griffing, Superior Court, judicial district of Hartford, Docket No. CV 05 4011520 (July 17, 2006, Keller, J.), citing Citibank (South Dakota) N.A. v. Manger, Superior Court, judicial district of Danbury, Docket No. CV 05 4001358 (May 25, 2006, Schuman, J.), Citibank (South Dakota) N.A. v. Piscitelli, Superior Court, judicial district of New Haven, Docket No. CV 04 0491060 (March 16, 2006, Corradino, J.) [40 Conn. L. Rptr. 873].   The plaintiff argues that it has complied with the disclosure of the monthly account statements to the plaintiff in accordance with the Truth and Lending Act (FTILA) and the Fair Credit Billing Act (FCBA).   In accordance with these acts, the customer must identify a billing error within 60 days after the billing statement.   The customer must identify a particular charge and a blanket statement of error does not satisfy this requirement.   Until the filing of this legal action, the defendant has not submitted any objection to any item of the billing nor disputed the accuracy.   The defendant has raised in the objection discrepancies with the account because it contains the wrong date of birth and also the question as to whether he entered into an agreement with the original creditor who provided the credit account to this plaintiff.   The objection of the defendant creates issues as to whether this is the proper defendant and whether there is an account stated action as the plaintiff has alleged.   In particular, the documents in support of the summary judgment by the plaintiff fall short of the documentation that would demonstrate the agreement entered into by the parties as well as the monthly notices that would give the defendant an opportunity to address discrepancies.   The affidavits of the plaintiff do very little other than show what the plaintiff has termed an account statement with absolutely no supporting documentation of the notice to this defendant.   The defendant's objection as well as the lack of supporting documentation on the monthly accounts to the defendant create a genuine issue of fact as to whether the defendant is the proper party and whether the plaintiff had any opportunity to view monthly accounts for accuracy.

Therefore, the motion for summary judgment is denied.

THE COURT

Brazzel-Massaro, J.

Brazzel-Massaro, Barbara, J.