LLC v. John Montmeat (2010)

ORDER RE MOTION FOR SUMMARY JUDGMENT # 111

On August 23, 2010, the defendant John Montmeat's motion for summary judgment was heard at short calendar.   The plaintiff, CUDA & Associates, LLC, filed a one-page objection to the motion, but did not appear at calendar to argue in opposition.   The defendant has moved for summary judgment on both count one, sounding in breach of contract, and count two, sounding in account stated, on the ground that he did not sign a contract or promissory note or enter into the agreement with the plaintiff for the Bank of America credit card.   The defendant further contends that he is entitled to judgment as the plaintiff is unable to prove that it was assigned the underlying credit card debt from Bank of America or another assignor.   In support of his motion, the defendant has submitted the plaintiff's responses to his discovery requests.

“Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the 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.   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.)  Sherman v. Ronco, 294 Conn. 548, 553-54, 985 A.2d 1042 (2010).  “Once the moving party has met its burden ․ the opposing party must present evidence that demonstrates the existence of some disputed factual issue.”  (Internal quotation marks omitted.)  Socha v. Bordeau, 277 Conn. 579, 586, 893 A.2d 422 (2006).

In the present case, the defendant has submitted evidence which creates a clear issue as to the plaintiff's ownership of the alleged credit card account.   Further, the defendant has introduced evidence that the plaintiff may be seeking to collect on the wrong account.¹  The plaintiff has not presented evidence contradicting the defendant's evidence or filed an affidavit or any other evidence that would create a genuine issue of material fact in opposition to the defendant's motion.   Ownership of the underlying debt and account is solely within the provenance of the plaintiff to clarify, and the plaintiff has not done so.

Considering the plaintiff's failure to file an affidavit, evidence or some other meaningful response in opposition to the defendant's motion for summary judgment, the court finds that the plaintiff has failed to establish that a genuine issue of material fact exists that would preclude the court from entering judgment in the defendant's favor.   Accordingly, the court grants the defendant's motion for summary judgment.

Cosgrove, J.

FOOTNOTES

FN1. The evidence submitted indicates that at least three Bank of America credit card statements were presented to the defendant in response to his discovery requests.   These three statements, however, reference a different credit card account than the one pleaded in the complaint.   In its complaint, the plaintiff seeks to recover money due on account xxxxxxxxxxxx7533, whereas the statements produced during discovery are for account xxxxxxxxxxxx0331..  FN1. The evidence submitted indicates that at least three Bank of America credit card statements were presented to the defendant in response to his discovery requests.   These three statements, however, reference a different credit card account than the one pleaded in the complaint.   In its complaint, the plaintiff seeks to recover money due on account xxxxxxxxxxxx7533, whereas the statements produced during discovery are for account xxxxxxxxxxxx0331.

Cosgrove, Emmet L., J.