USA v. Eileen Griffin (2011)

MEMORANDUM OF DECISION

In this credit card collection case, the plaintiff, Capital One Bank (USA), N.A., has moved for summary judgment and the defendant, Eileen Griffin, has filed an objection.   The matter was argued on February 14, 2011 at which counsel for both the plaintiff and the defendant appeared.

DISCUSSION

“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.”  (Internal quotation marks omitted.)  Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007).  “[T]he genuine issue aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred ․ A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case.”   (Citation omitted;  internal quotation marks omitted.)  Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).

“In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact ․ Once the moving party has met its burden ․ the opposing party must present evidence that demonstrates the existence of some disputed factual issue ․ It is not enough ․ for the opposing party merely to assert the existence of such a disputed issue.”   (Internal quotation marks omitted.)  Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).  “In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist.”  Nolan v. Borkowski, 206 Conn. 495, 500, 535 A.2d 1031 (1988).   Moreover, the “court must view the evidence in the light most favorable to the nonmoving party.”  (Internal quotation marks omitted.)  Provencher v. Enfield, supra, 284 Conn. 791.

In the second count of its complaint, the plaintiff alleges an account stated theory of recovery in that the defendant had a credit account with “Capital One Bank” and, in connection with that account, the plaintiff mailed and delivered monthly account statements to the defendant, which she received without timely protest of the charges and amounts due.   See Credit One, LLC v. Head, 117 Conn.App. 92, 977 A.2d 767, cert. denied, 294 Conn. 907, 982 A.2d 1080 (2009).   The plaintiff argues that, because the defendant never responded to these allegations, they are deemed admitted.   After careful review of all the filings and documents submitted, and pursuant to Practice Book § 10-19, this court concludes that the second count has been deemed admitted and, therefore, there is no issue of material fact remaining in the case.   The plaintiff's motion for summary judgment is granted.

BY THE COURT

Jack W. Fischer, Judge

Fischer, Jack W., J.