Discover Bank v. Thomas E. Coe et al. (2012)

MEMORANDUM OF DECISION

This action comes before the court on the plaintiff's motion for summary judgment (# 103).   The plaintiff is a state bank which issued a credit card to the two defendants.   The action is brought, in two counts, to recover the amount currently claimed due by the plaintiff.   In their answer, the defendants admit they maintained the credit card account with plaintiff and that at various points in time they made certain charges or received cash advances against this account.   Defendants, however, in their answer, deny the amount claimed due by plaintiff or being in default.

Plaintiff has supported its motion for summary judgment by an affidavit of an account manager for an affiliate servicing the loan in question, a copy of the credit card agreement and copies of certain monthly statements for the account in question.   In opposition to the motion, defendants have submitted the affidavit of defendant Thomas Coe.

The standard by which motions for summary judgment shall be determined has oft been stated:  “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.”  Practice Book § 17–49.   In applying this standard, the court is required to view the evidence presented on the motion “in a light most favorable to the nonmoving party.”  Liberty Mutual Ins. v. Lone Star Industries, Inc., 290 Conn. 767, 787 (2009).   The party moving for summary judgment bears the burden of showing the absence of any dispute as to material facts sufficient to entitle him to judgment.  Id. In that event, it is not enough for the opposing party to simply assert the existence of a disputed fact, he must present evidence which would be admissible at trial in opposition to the motion for summary judgment.   See Home Insurance Co. v. Aetna Life & Casualty Co., 235 Conn. 185, 202–203 (1995).

After carefully reviewing the affidavits and materials submitted by each side in association with the motion, it appears to the court that plaintiff has failed to show the absence of genuine dispute on the. material facts as to the debt claimed.

While plaintiff presents an affidavit from an individual claiming personal knowledge, and who swears to a balance of $10,328.43, as sought in the motion, it is clear that the personal knowledge of that affiant is based upon her “access to records regarding the [credit card] account of the defendants.”   What those records are, how they were maintained and whether they should be considered reliable is simply not stated.   Moreover, notwithstanding Practice Book § 17–46, no such records or papers are attached to or made a part of the affidavit.   While the movant has attached copies of monthly account statements associated with this account (including one with a closing date of February 15, 2011, which does show a balance such as is claimed by the movant, $10,328.43), there are substantial gaps in the time period covered by the statements which are attached.   These statements attached show a variety of charges as well as payments but they pertain to a period more than four years prior to suit, they do not show the amount claimed and provide no explanation as to what occurred to the account during the intervening period.   The statement in February 2011, which does show the amount claimed, does not contain any information as to the basis of this amount other than an initial balance subject to minor adjustments for interest charges and the like.

Moreover, there is no information or affidavit claiming or explaining the practices of the plaintiff or its servicing agency for the application of payments or charges within the normal course of business.   Indeed it appears that all of the movant's papers establish little more than the fact that the plaintiff once previously claimed the same amount it is currently seeking to be awarded in this motion.   Additionally, while plaintiff argues in its brief certain legal principles with regard to an account stated, namely that the amount claimed, absent a dispute within a reasonable period of time may be taken as the correct amount of the account, no factual basis on which the court should accord that treatment is presented.

In short, plaintiff's evidence establishes little more than that somewhere within the office of an affiliated financial institution there is a record or document which shows the amount claimed as the account balance of the defendants.   How the court can determine there is not genuine dispute on that balance is never shown.

By the same token, the affidavit submitted by one of the defendants in opposition to the motion is also woefully inadequate.   The opposing affidavit does not set out what amount the defendants claim is correctly due on the account, it does not establish any basis on which the court might infer the plaintiff's claim is incorrect or overstated.   Defendants' affidavit is little more than a conclusory denial that the specific amount claimed by the plaintiff is wrong.   Nonetheless, because the court finds movant has failed to demonstrate its entitlement to summary judgment, this motion must be denied.

Done this 20th day of January 2012.

Wenzel, J.

Wenzel, William, J.