Atlantic Credit Finance v. Miguel L. Caro (2010)

Caption Date:

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGEMENT

This is apparently a collection action.   The plaintiff seeks summary judgment claiming the absence of any genuine issue of material fact as to the defendant's liability.   The defendant filed no response to the plaintiff's motion.

Standard of Review

A party seeking summary judgment has the burden of demonstrating the absence of any genuine issue of material facts which, under applicable principles of law, entitle him to judgment as a matter of law.  PB § 17-44;  Appleton v. Board of Education, 254 Conn. 205 (2000).   Conversely, the party opposing such a motion must provide an evidentiary foundation to show the existence of a genuine issue of material fact.  Appleton, supra.   This evidentiary foundation must be demonstrated with counter-affidavits and concrete evidence.  Pion v. Southern New England Telephone, 44 Conn.App. 657, 663 (1997).   A party's conclusory statements may not be sufficient to establish the existence of a disputed material fact, even if in affidavit form.  Gupta v. New Britain General Hospital, 239 Conn. 574, 583 (1996).

The plaintiff submitted the Affidavit of Damon Bailey, a representative of the plaintiff, Atlantic Credit and Finance, Inc., as well as documents appended thereto which are established to be business records of the plaintiff.   The plaintiff further offers the defendant's responses to the plaintiff's Request for Admissions.   The Affidavit establishes that the plaintiff purchased the defendant's account from HSBC on or about November 26, 2008, and thus, the plaintiff is the holder of the account/debt.   The Affidavit further establishes that the defendant had a credit card with HSBC;  that he made period payments on the balance due and owing and that the last payment made was posted by HSBC on July 8, 2008.   Finally, the Affidavit establishes that the outstanding balance at the time the account was transferred, an amount still due and owing, is $9,153.24.   In his response to the plaintiff's Request for Admissions, the defendant admitted that he had the credit card from HSBC;  that he used the card;  that the terms of his credit card agreement with HSBC included the assessment of interest and late charges;  that he agreed to the terms of the credit card agreement;  that the charges were authorized;  that he made periodic payments on the account;  that he is personally responsible for payment of this account;  that he has not (within 60 days of receiving his account statement) previously disputed any individual charges to the account.

The nature of the plaintiff's cause of action cannot be discerned from the scant allegations contained in the plaintiff's complaint.   While the plaintiffs evidence would be germane to a cause of action based upon breach of the credit card agreement or perhaps an account stated cause of action, the complaint in this case avers neither of those causes of action.   This court will not speculate as to the theory under which the plaintiff seeks recovery in deciding the motion for summary judgment.¹

The motion for summary judgment is denied.

K. DOOLEY, J.

FOOTNOTES

FN1. The plaintiff's memorandum of law also fails to identify the cause of action which it claims to have proven with its submissions..  FN1. The plaintiff's memorandum of law also fails to identify the cause of action which it claims to have proven with its submissions.

Dooley, Kari A., J.