LLC v. Lawrence D. Athay (2012)

MEMORANDUM OF DECISION

This is a collection action regarding a credit card issued to the defendant.   The plaintiff filed a redacted complaint, dated June 2, 2010, alleging claims of breach of contract and account stated.   The defendant filed an answer, dated June 24, 2010, in which he admitted the following:  he had a credit card/credit line issued by Chase Bank USA, NA, he had stopped making payments, and he had not paid off the charges he made to the credit card/credit line.   He challenged the accuracy of plaintiff's claim of ownership of the account.

To prove its claim, the plaintiff must prove the elements by the fair preponderance of the evidence standard, which is “properly defined as the better evidence, the evidence having the greater weight, the more convincing force in your mind.”  (Internal quotation marks omitted.)  Cross v. Huttenlocher, 185 Conn. 390, 394, 440 A.2d 952 (1981).   The essential elements for a cause of action based on breach of contract are (1) agreement formation, (2) performance by one party, (3) breach of the agreement by the other party, (4) direct and proximate cause, and (5) damages.   See McCann Real Equities Series XXII, LLC v. David McDermott Chevrolet, Inc., 93 Conn.App. 486, 503–04, 890 A.2d 140, cert. denied, 277 Conn. 928, 895 A.2d 798 (2006).   In General Petroleum Products, Inc. v. Merchants Trust Co., 115 Conn. 50, 56, 160 A. 296 (1932), the Supreme Court articulated the elements of a cause of action based on an account stated theory, stating:  “The delivery by the bank to the [debtor] of each statement of the latter's account ․ was a rendition of the account so that retention thereof for an unreasonable time constituted an account stated which is prima facie evidence of the correctness of the account.   Such account stated can be opened and impeached upon proof of mistake or fraud, but the [debtor's] silence as to the correctness of the account rendered puts upon it the burden of providing that the account, as stated, was the result of such fraud or mistake.”   Accordingly, “[t]he elements of a cause of action based on an account stated are that (1) the creditor delivered periodic statements to the debtor which document the charges against the account and (2) the debtor retained the statements without objection for an unreasonable period of time.”  (Internal quotation marks omitted.)   Citibank (South Dakota) N.A. v. Gates, Superior Court, judicial district of New Haven, Docket No. CV 09 5029978 (February 3, 2010, Lager, J.).

The trial of this matter was held on April 19, 2012, during which the following witnesses testified.

Donna DeCrescenzo is employed by the plaintiff as an underwriter.   The account was opened by the defendant on December 10, 2004.   DeCrescenzo testified regarding the plaintiff's acquisition of the account, including the bills of sale.   The plaintiff believed that it had perfected its title to the account.   The cardmember agreement set forth the terms of the contract including the default/collection provisions.   The credit card statements from May 10, 2007 to November 29, 2008 reflected a balance due of $14,112.48.   Since the purchase of the account on or about July 27, 2009, the plaintiff had not received any payments from the defendant.

The defendant testified to entering into the agreement with Chase Bank for the credit card.   He paid on the account until he could not afford to do so.   He did not remember disputing any charges.   He challenged the chain of title and pointed out problems with the bills of sale, including blank space on the form(s) and issues with the signatures.   The defendant raised concerns regarding Chase Bank's business practices regarding the handling of consumer debt and the economic problems over the last several years.

The court has fully considered the criteria set forth in the relevant statutes, as well as the evidence, applicable case law, demeanor and credibility of the witnesses, and arguments of the parties in reaching the decisions reflected in the orders that issue in this memorandum.   After due consideration, the court makes the following findings.

The plaintiff proved by a fair preponderance of the evidence the breach of contract and account stated claims.   The defendant entered into a cardmember agreement in December 2004.   He subsequently made charges on the credit card but stopped making payments and failed to pay off the principal balance.   The original creditor, Chase Bank USA, NA, delivered periodic statements to the defendant which documented the charges against the account.   The defendant retained the statements without objecting to the charges within a reasonable period of time.   The plaintiff provided sufficient proof of legal ownership of the debt through testimony and the bills of sale.   The plaintiff proved the amount of the principal balance as of November 30, 2008, which is $14,151.48.

The plaintiff has requested an award of filing costs, marshal's fees and attorney's fees.   The cardmember agreement provides in relevant part:  “To the extent permitted by law, if you are in default because you have failed to pay us, you will pay our collection costs, attorney's fees, court costs, and all other expenses of enforcing our rights under this agreement.”  (Plaintiff's Exhibit No. 5.) The plaintiff is entitled to an award of filing costs, marshal's fees and attorney's fees.

The plaintiff has also requested an award of prejudgment interest pursuant to General Statutes § 37–3a for the period from November 30, 2008 to the date of judgment, in the amount of ten percent a year ($3.87 per diem).  Section 37–3a(a) provides in relevant part:  “Except as provided in Sections 37–3b, 37–3c and 52–192a, interest at the rate of ten per cent a year, and no more, may be recovered and allowed in civil actions or arbitration proceedings under chapter 909, including actions to recover money loaned at a greater rate, as damages for the detention of money after it becomes payable.”  “The allowance of interest as an element of damages is, thus, primarily an equitable determination and a matter lying within the discretion of the trial court.”   (Internal quotation marks omitted.)  O'Hara v. State, 218 Conn. 628, 643, 590 A.2d 948 (1991).   Based on the particular circumstances of this case, the court denies the plaintiff's request for prejudgment interest.   The plaintiff was assigned the debt from the original creditor, and the funds that are subject of this lawsuit have not thus far been wrongfully withheld from the plaintiff.   In addition, a substantial amount of interest has already been incorporated into the principal balance, which has been fully awarded by the court.   Additional interest on this amount as an element of damages would not be equitable.

The defendant failed to prove by a fair preponderance of the evidence any defenses.   The defendant failed to provide sufficient proof of defective title, fraud or mistake.

Therefore, the court renders judgment in favor of the plaintiff and awards the following damages, fees and costs:

Amount of Debt as of 11/30/08:  $14,151.48

Filing Costs:  $ 300.00

Marshal Fees:  $ 58.20

Attorneys Fees:  $ 500.00

Total Judgment:  $15,009.68

Payment shall be made in good funds only and made payable to plaintiff's attorney as trustee.

BY THE COURT:

Bentivegna, J.

Bentivegna, James M., J.