Discover Bank v. Dominic DiNunzio (2011)

RULING ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (# 102)

By motion filed on September 28, 2011, the plaintiff, Discover Bank, moved for summary judgment on its complaint.   The court heard argument on this motion on October 17, 2011.   The defendant, Dominic DiNunzio, did not appear before the court to oppose the motion, and did not file any written opposition to the plaintiff's motion.   The court has considered the plaintiff's September 28, 2011 motion and memorandum of law in support of its motion for summary judgment, its supporting affidavit and exhibits and the argument presented to the court on October 17, 2011.   The motion is granted.

The plaintiff's complaint alleges that on and after October 27, 2009, the plaintiff loaned money to the defendant, that the defendant is in default, and that there is currently due “the sum of $21,713.03 in addition to interest, late charges, reasonable attorneys fees, and costs of suit.”   The complaint also alleges, in a second count, that the defendant would be unjustly enriched if he were allowed to retain the funds loaned to him without paying the plaintiff the value of the benefit that it conferred on the defendant.   In his answer, the defendant admitted that the plaintiff loaned him money, he promised to repay the money with interest and, in the event of default, he promised to pay interest, reasonable attorneys fees, late fees and the costs of suit.   The defendant also admitted that he is in default and that, as of the date of the complaint, he owed the plaintiff $21,713.03 in addition to interest, late charges, reasonable attorneys fees and costs of suit.   The defendant also raised four special defenses.

I

DISCUSSIONAStandard of Review

“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 ․ In order for a motion for summary judgment to be granted properly, the moving party must demonstrate that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ․ [A] summary disposition [must] ․ be on evidence which a jury would not be at liberty to disbelieve and ․ where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the [summary judgment].”  (Citation omitted;  internal quotation marks omitted.)  Farrell v. Twenty–First Century Ins. Co., 301 Conn. 657, 661–62, 21 A.3d 816 (2011).

“[A] party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue ․ It is not enough ․ for the opposing party merely to assert the existence of such a disputed issue.   Mere assertions of fact ․ are insufficient to establish the existence of [an issue of] material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment].”  (Internal quotation marks omitted.)  Boyne v. Glastonbury, 110 Conn.App. 591, 596, 955 A.2d 645, cert. denied, 289 Conn. 947, 959 A.2d 1011 (2008).

B

Analysis

In the present case, the defendant admitted that he borrowed money from the plaintiff;  promised to repay the money with interest;  is in default;  and, because he is in default, he owes the plaintiff interest, reasonable attorneys fees, late fees and the costs of suit.   The defendant specifically admitted that he owes the plaintiff $21,713.03 in addition to interest, late charges, reasonable attorneys fees and costs of suit.   The plaintiff has provided an affidavit signed by a department manager for Discover Financial Services, the servicing agent for the plaintiff.   That affidavit sets forth the following relevant facts:  the defendant borrowed money from the plaintiff as set forth in a statement of account annexed to the affidavit;  the defendant entered into a loan agreement which was provided to him at the time the loan proceeds were disbursed;  the principal balance of the loan that was due as of December 7, 2010, was $20,511.39;  interest due up to that point was $1,045.64;  and fees in the amount of $156 were due up to that point.   The account statement shows that the plaintiff initially charged interest at the rate of 12.99% per year, but that the loan was in default as of September 28, 2010, and, at that point, the interest rate increased to 14.99%. On October 25, 2010, the interest rate increased again, this time to 16.99%. The loan agreement provides that interest will accrue until the defendant repays all of the amount financed, that in the event of a default the annual percentage rate of interest could rise to 28.99%, and that the defendant may be charged reasonable attorneys fees in the event that the loan were to be referred to collection.

The defendant's special defenses are bare allegations.   Moreover, the defendant failed to provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact in opposition to the plaintiff's motion for summary judgment or in support of his special defenses.   Therefore, based on the allegations of the complaint, the admissions set forth in the defendant's answer, the affidavit filed in support of the motion for summary judgment as well as the exhibits and attachments to the affidavit, the court finds that there are no genuine issues of material fact that preclude the entry of summary judgment.

With regard to the question of damages, the court finds that, pursuant to the affidavit of debt, the defendant owes the plaintiff the principal balance of $20,511.39.   The court further finds that, based on the affidavit of debt and the attached account statement, the amount of interest owed up to December 7, 2010, was $1,045.64, for a combined total of $21,557.03.   The affidavit of debt and attached account statement reflect late charges totaling $156.   Thus, the court finds that, as of December 7, 2010, the defendant is liable to the plaintiff in the total amount of $21,713.03.

Turning to the question of interest, attorneys fees and costs, the court finds as follows.   The loan agreement provides that the default rate of interest may increase to an annual rate of 28.99%. The plaintiff is seeking a default rate of 16.99%, per the account statement appended to the affidavit in support of the motion for summary judgment.   This loan, which involves money loaned at a fixed valuation, is subject to General Statutes § 37–1, which provides that “in the absence of any agreement to the contrary, [interest shall] be at the rate of eight percent a year ․” (Emphasis added.)   The plaintiff and defendant entered into an agreement that in the event of a default, a default rate of interest, higher than eight percent a year, would apply.   Pursuant to that agreement, the court will allow an annual interest rate of 16.99%. With a principal balance of $20,511.39, an annual interest rate of 16.99% yields interest in the amount of $9.55 per day.   The plaintiff is allowed interest at the rate of $9.55 per day as of December 8, 2010.

The loan agreement appended to the affidavit in support of the motion for summary judgment sets forth the parties' understanding that the plaintiff may seek reasonable attorneys fees in the event of a default.  General Statutes § 42–150aa(b) allows the plaintiff to seek attorneys fees “of not more than fifteen percent of the amount of any judgment which is entered.”   In the present case, the plaintiff's affidavit in support of attorneys fees seeks an amount that is less than fifteen percent of the judgment.   The affidavit supports an award of reasonable attorneys fees in the amount of $2,100.   The court therefore allows attorneys fees in the amount of $2,100.

Finally, the plaintiff has attached a bill of costs seeking $358.02.   The court finds that the bill of costs is appropriate and the defendant is assessed costs in the amount of $358.02.

The defendant is hereby ordered to pay $35 per week, commencing three weeks from the date of judgment, against the total debt.

So ordered.

BY THE COURT,

John A. Danaher III

Danaher, John A., J.