Polish and Slavic Federal Credit Union v. Alexander Zatserkovniy (2012)

MEMORANDUM OF DECISION

FACTS

The plaintiff, Polish and Slavic Federal Credit Union, commenced this action against the defendant, Alexander Zatserkovniy.   In its single-count complaint, the plaintiff alleges the following relevant facts.   On May 1, 2007, the defendant executed a note in favor of the plaintiff in the amount of $10,000.00, plus interest, promising to pay the plaintiff.   On or before September 24, 2010, the defendant defaulted on the note by failing to make payments in accordance with its terms.   The plaintiff accelerated payments due under the note and sought to recover the balance due in the amount of $7,811.12.

The defendant filed an answer in which he agreed to all paragraphs of the plaintiff's complaint except he denied that, in the event of default, all payments would be accelerated and the outstanding balance would become due at the option of the plaintiff together with accrued interest, reasonable attorneys fees and costs of collection.   The plaintiff filed a motion for summary judgment on March 15, 2012 on the ground that no genuine issue of material fact exists and the plaintiff is entitled to judgment as a matter of law.   The motion was accompanied by a memorandum of law.   In support of its motion, the plaintiff submitted the following:  (1) the sworn affidavit from a competent witness and custodian of records for the plaintiff;  (2) a copy of the cardholder agreement;  (3) monthly transaction descriptions on the defendant's account from June 1, 2007 to June 30, 2008;  and (4) monthly credit account statements from July 15, 2008 to March 15, 2009 sent to the defendant that show an outstanding principal balance of $7,811.12.

The defendant filed neither a memorandum in opposition to the motion for summary judgment nor any counter affidavit.   The matter was argued before the court at the short calendar on April 2, 2012.

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.   In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party ․ The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law.”  (Internal quotation marks omitted.)  Brooks v. Sweeney, 299 Conn. 196, 210, 9 A.3d 347 (2010).   “In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact.   The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law.   The courts hold the movant to a strict standard.   To satisfy his burden the movant must make a showing 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 ․” (Internal quotation marks omitted.)  Connecticut Ins. Guaranty Assn. v. Drown, 134 Conn.App. 140, 146–47, 37 A.3d 820 (2012).

“The party opposing a motion for summary judgment must present evidence that demonstrates the existence of some disputed factual issue ․ The movant has the burden of showing the nonexistence of such issues but the evidence thus presented, if otherwise sufficient, is not rebutted by the bald statement that an issue of fact does exist ․ To oppose a motion for summary judgment successfully, the nonmovant must recite specific facts ․ which contradict those stated in the movant's affidavits and documents ․ The opposing party to a motion for 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 ․ The existence of the genuine issue of material fact must be demonstrated by counter affidavits and concrete evidence.”  (Emphasis in original.)  Gianetti v. Health Net of Connecticut, Inc., 116 Conn.App. 459, 464–65, 976 A.2d 23 (2009).   When a party moves for summary judgment “and there [are] no contradictory affidavits, the court properly decide[s] the motion by looking only to the sufficiency of the [movant's] affidavits and other proof.”  Heyman Associates No. 1 v. Ins. Co. of Pennsylvania, 231 Conn. 756, 795, 653 A.2d 122 (1995).

The plaintiff argues that the defendant must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.   Additionally, the plaintiff contends that each use of the credit card by the defendant constitutes a representation that the defendant agrees to pay the credit card debt according to its terms.   The plaintiff further argues that pursuant to the account stated theory, it is entitled to judgment as a matter of law because where the defendant receives monthly statements and does not object to the charges, the defendant is liable for the balance due on the account.

“The theory of account stated is described as follows:  [t]he delivery by the [creditor] to the [debtor] of each statement of the latter's account, with the [documentation] upon which the charges against [the debtor's account] were based, [is] a rendition of the account so that retention thereof for an unreasonable time constitute[s] an account stated which is prima facie evidence of the correctness of the account.”  Citibank (South Dakota), N.A. v. Evvard, 128 Conn.App. 843, 844 n.2, 18 A.2d 682 (2011), citing General Petroleum Products, Inc. v. Merchants Trust Co., 115 Conn. 50, 56, 160 A. 296 (1932).   A plaintiff satisfies its burden of proof for account stated “by showing it sent [the] defendant monthly statements evidencing [a] balance due and [that the] defendant did not dispute [the] balance listed on [the] statements prior to commencement of action.”  Credit One, LLC v. Head, 117 Conn.App. 92, 100, 977 A.2d 767, cert. denied, 294 Conn. 907, 982 A.2d 1080 (2009).

In the present case, the defendant admitted in his answer that he had a credit account with the plaintiff and that he owes the plaintiff an unpaid debt of $7,811.12.   In his answer, however, the defendant denied that in the event of default all payments would be accelerated and the outstanding balance would become due at the option of the plaintiff together with accrued interest, reasonable attorneys fees, and costs of collection.   Again, while the movant has the burden of showing the nonexistence of any material fact, “the evidence thus presented, if otherwise sufficient, is not rebutted by the bald statement that an issue of fact does exist ․ To oppose a motion for summary judgment successfully, the nonmovant must recite specific facts ․ which contradict those stated in the movant's affidavits and documents ․” Gianetti v. Health Net of Connecticut, Inc., supra, 116 Conn.App. 465.   In the present case, the plaintiff's proof is sufficient and the defendant did not file either a memorandum in opposition to the motion for summary judgment or a counter affidavit.   Consequently, the proof submitted discloses no genuine fact to dispute that the plaintiff granted the defendant a credit account;  that the defendant used the credit account;  that monthly billing statements accounting for the charges were sent to the defendant at his home address;  and that the defendant ultimately failed to make payments against the debt due and is presently in default for the sum of $7,811.12.   See Citibank (South Dakota), N.A. v. Viegas, Superior Court, judicial district of New Haven, Docket No. CV 10 6011782 (October 6, 2011, Woods, J.) (summary judgment granted for a claim for default on a credit installment agreement where facts disclosed that the plaintiff granted the defendant use of a credit card, sent monthly billing statements accounting for the charges to the defendant's home address, and the defendant failed to make payments).   Furthermore, the plaintiff satisfied its claim for account stated under Credit One, LLC v. Head, supra, 117 Conn.App. 100.   First, the plaintiff submitted as evidence the billing statements from July 15, 2008 to March 15, 2009 that it mailed to the defendant at his home address.   Second, the plaintiff's custodian of records averred that “there is no record of any unresolved billing disputes relating to this account by this defendant.”   Because the plaintiff has met its burden that no genuine issue of a material fact exists, the court grants the plaintiff's motion for summary judgment.

Lastly, the plaintiff claims contractual interest, attorneys fees, costs of suit, and postjudgment statutory interest pursuant to General Statutes § 37–3a ¹ and General Statutes § 52–356d(e).²  As the plaintiff has not provided an itemization of its costs, the plaintiff's request of contractual interest, attorneys fees and costs of suit is denied without prejudice.   In regards to the plaintiff's request for postjudgment interest, our Supreme Court recently noted that “[a] decision to deny or grant postjudgment interest is primarily an equitable determination and a matter lying within the discretion of the trial court.”  Ballou v. Law Offices Howard Lee Schiff, P.C., 304 Conn. 348, 356, 39 A.3d 1075 (2012).   The court denies the plaintiff's request for postjudgment interest because the plaintiff failed to show that the money has been wrongfully withheld.   See Urich v. Fish, Superior Court, judicial district of New Haven, Docket No. CV 94 0360659 (July 6, 2007, Meadow, J.), judgment affirmed by 112 Conn.App. 837, 965 A.2d 567 (2009), appeal denied by 292 Conn. 909, 974 A.2d 109 (2009).

THE COURT

SYBIL V. RICHARDS, JUDGE

FOOTNOTES

FN1. 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 ․ including actions to recover money loaned at a greater rate, as damages for the detention of money after it becomes payable.”.  FN1. 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 ․ including actions to recover money loaned at a greater rate, as damages for the detention of money after it becomes payable.”

FN2. Section 52–356d(e) provides in relevant part:  “Interest on a money judgment shall continue to accrue under any installment payment order on such portion of the judgment as remains unpaid.”.  FN2. Section 52–356d(e) provides in relevant part:  “Interest on a money judgment shall continue to accrue under any installment payment order on such portion of the judgment as remains unpaid.”

Richards, Sybil V., J.