LLC v. Jean Ambroise (2010)

MEMORANDUM OF DECISION RE MOTION TO OPEN JUDGMENT (# 104)

This case was commenced in February 2009.   The gravamen of the complaint, is that the defendant, Jean Ambroise, entered into a credit agreement with the Capitol One Bank, N.A. The plaintiff alleged that the defendant failed to make payments as provided for in that agreement and that there was a balance due of $735.00 as of June 30, 2003.   The defendant filed an appearance in this action on February 26, 2009 but did not file any pleadings.   On June 10, 2010, a default judgment was entered against the defendant in the amount of $1,490.39.   The judgment entered with an order of weekly payments in the amount of $35.00 per week commencing July 12, 2010.

On July 7, 2010, the defendant, Jean Ambroise, filed a motion to open judgment.   In the motion he swore, “I never had any credit card from Capital One. They want $35.00 to activate the card.   And I refuse to pay that and I told them to cancel the card.   I never received the card from Capital One and never used it.”

Practice Book § 17-43 provides that the motion to open judgment upon a default may be granted upon “showing reasonable cause, or that a good cause of action or defense in whole or in part existing at the time of the rendition of such judgment or the passage of such decree, and that the plaintiff or the defendant was prevented by mistake, accident or other reasonable cause from prosecuting or appearing to make the same.”

Analyzing the defendant's motion, in terms of this section of the Practice Book, the defendant has stated a potentially valid defense to this action namely that he did not obtain or use the credit card in issue.   The next issue presented is whether the defendant has indicated any reasonable cause or good cause why that defense was not asserted at and after the defendant filed an appearance in this action.   This is a close case.   The affidavit itself does not identify any such good cause or defense.   The easy decision in this case would be to deny this motion.   For the following reasons, however, the court will grant this motion.   First, the plaintiff waited fifteen months after the filing of this action to take any steps to prosecute the same.   Second, the arguments raised by the plaintiff in opposition to this motion do not correlate well with the pleadings in this file leading the court to question whether the plaintiff has confused this file with another.   Third, when this motion has appeared on the calendar for argument, the plaintiff has not appeared to oppose the motion.   The defendant, with limited fluency, has appeared each time this matter was on the calendar.   Finally, the court notes that this action was first brought 5 1/2 years after the credit card was allegedly used.   Under these circumstances, the court grants the defendant's motion to open the judgment in this case.

The court orders that the defendant Jean Ambroise file a responsive pleading, such as an answer and/or special defenses within 15 days of the date of this memorandum of decision.

Cosgrove, J.

Cosgrove, Emmet L., J.