American Express Centurion Bank v. Paula Eldridge (2012)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (# 108)

FACTS

This is a debt collection action.   On May 26, 2011, the plaintiff, American Express Centurion Bank, filed a one-count complaint against the defendant, Paula Eldridge.   In its complaint, the plaintiff alleges that it entered into a contract with the defendant for a credit account, that the defendant defaulted on the terms of the credit account, that demand was made upon the defendant for payment but that the defendant has failed and refused to pay the amount due and owing.   In particular, the plaintiff alleges that, pursuant to the terms of the credit account, the defendant owes the plaintiff $8,769.15.

On September 2, 2011, the defendant filed an answer to the plaintiff's complaint in which she denied that she owes the plaintiff $8,769.15, but otherwise left the plaintiff to its proof.   On January 3, 2012, the plaintiff filed a motion for summary judgment on the ground that there is no genuine issue as to any material fact and that it is entitled to judgment as a matter of law.   The motion is accompanied by a memorandum of law.   On January 9, 2012, the defendant filed an objection to the plaintiff's motion and a memorandum of law in support thereof.   The matter was heard at short calendar on June 18, 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.”  (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 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, 538 A.2d 1031 (1988).

“In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact ․ The courts hold the movant to a strict standard ․ As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ․ 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, however, 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 a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17–45].”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).

In its memorandum of law, the plaintiff argues that the record in the present case establishes that the defendant entered into a contract with the plaintiff for a credit account and that the defendant is in breach of that contract.   In particular, the plaintiff contends that the defendant made use of the credit account and defaulted upon her obligations to repay the debt in accordance with the terms of the contract.   The plaintiff further argues that, under the account stated theory of liability, the plaintiff need not produce the original signed credit application or prove each charge on the credit account.   Rather, the plaintiff argues that it has established liability in that it has verified the existence of the credit account, and the defendant's use thereof, by way of monthly statements sent to the defendant's home address and has verified the defendant's acknowledgment of the balance thereon by way of her failure to dispute any charges within sixty days.   Therefore, the plaintiff argues that all that is left for this court's determination is the amount of damages.   In support of its motion for summary judgment, the plaintiff submitted the following evidence:  (1) an affidavit from Kevin Udy, assistant custodian of records for the plaintiff, dated December 21, 2011;  (2) a copy of a credit card agreement;  (3) a copy of seven credit card statements;  (4) a copy of the defendant's answers to the plaintiff's requests for admission;  (5) a copy of the defendant's answers to the plaintiff's interrogatories;  and (6) a copy of the defendant's responses to the plaintiff's requests for production.

The defendant counters that there are genuine issues of material fact, most notably, the existence of a contract between the two parties and a validation of the debt by the plaintiff.¹  The defendant argues that the account stated theory of liability does not apply unless the plaintiff and the defendant have a relationship in contract but that the plaintiff has never supplied a copy of such a contract between the two parties or copies of any cancelled checks.   The defendant further argues that, to the extent that the account stated theory of liability applies, it has not been met because the defendant has requested validation of the debt but has not received such validation from the plaintiff.   Moreover, the defendant contends that her failure to send a written dispute within sixty days of receipt of the credit card statement does not admit the accuracy of the charges.   In support of her objection, the defendant submitted the following evidence:  (1) her own affidavit;  and (2) a copy of correspondence between herself and Zwicker & Associates, P.C.

“The theory of account stated is described as follows:  The 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.”  (Internal quotation marks omitted.)   Citibank (South Dakota), N.A. v. Evvard, 128 Conn.App. 843, 844 n.2, 18 A.3d 682 (2011).  “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.”  (Internal quotation marks omitted.)   Polish & Slavic Federal Credit Union v. Zatserkovniy, Superior Court, judicial district of Fairfield, Docket No. CV 11 6017948 (May 31, 2012, Richards, J.), quoting Credit One, LLC v. Head, 117 Conn.App. 92, 100, 977 A.2d 767, cert. denied, 294 Conn. 907, 982 A.2d 1080 (2009).  “Such account stated can be opened or impeached upon proof of mistake or fraud, but the plaintiff's silence as to the correctness of the account rendered puts upon it the burden of proving that the account, as stated, was the result of such fraud or mistake.”  (Internal quotation marks omitted.)  Credit One, LLC v. Head, 117 Conn. 98.

In his affidavit, Udy attests that the plaintiff opened an account in the defendant's name extending her credit, that the plaintiff sent monthly statements of account to the defendant, which were true and accurate, that the plaintiff had no records indicating that the defendant disputed the validity of any transactions or the account balance prior to defaulting, and that the defendant failed to pay the minimum amount due on the statements.   The plaintiff also submitted a copy of seven account statements addressed to the defendant at 2611 Long Hill Road in Guilford, with the most recent dated September 19, 2007.²  In her answer to the plaintiff's requests for admission, the defendant admitted that she used the credit card, that she is responsible for the purchases made with her credit card, and that she never sent a written dispute to the plaintiff regarding any items appearing on the statements.   Therefore, the plaintiff has established liability under an account stated theory in that the evidence shows no genuine issue of material fact that the plaintiff granted the defendant a credit account, the defendant used the credit account, monthly billing statements accounting for the charges were sent to the defendant at her home address,³ the defendant never sent a written dispute to the plaintiff regarding any items appearing on the statements and the defendant failed to pay the minimum amounts due on the statements.

The defendant argues, however, that the plaintiff has never supplied a copy of any contract between the two parties or copies of any cancelled checks.   Account stated is a theory of recovery “in which, by contract, the debtor has a reasonable period of time in which to question all or part of the indebtedness ․” (Emphasis added.)   Citibank (South Dakota) N.A. v. Stewart, Superior Court, judicial district of New Haven, Docket No. CV 05 4012384 (November 30, 2005, Silbert, J.) (40 Conn. L. Rptr. 337) (annexing contract to affidavit in support of motion for summary judgment).   While a cause of action based on the theory of account stated requires an underlying contract, a number of decisions of the Superior Court have found, however, that “[a] cause of action based on the theory of account stated ․ does not require the plaintiff to have a signed agreement by the defendant in order to find the defendant liable on the account.”  Citibank (South Dakota), N.A. v. Watt, supra, 50 Conn. L. Rptr. 462;  see also Cach, LLC v. Stupack, Superior Court, judicial district of New Britain, Docket No. CV 08 5008144 (March 1, 2010, Swienton, J.) (49 Conn. L. Rptr. 403, 404);  Discover Bank v. Clachrie, Superior Court, judicial district of New London, Docket No. CV 08 5009650 (February 18, 2010, Martin, J.).  “Connecticut does recognize the concept [of account stated] where the defendant assents to the balance of an account, expressly or impliedly, that presumptively establishes an agreement fixing the amount due.”  (Emphasis added.)  Cach, LLC v. Stupack, supra, 49 Conn. L. Rptr. 404.   Furthermore, under account stated theory of liability, the “plaintiff's failure to provide cancelled checks does not preclude this court from granting the plaintiff's motion for summary judgment.”  Citibank (South Dakota), N.A. v. Watt, supra, 50 Conn. L. Rptr. 462.

In the present case, the plaintiff has submitted a copy of an unsigned credit card agreement but the defendant has denied that she ever received a copy of such agreement.⁴  As previously discussed, however, the defendant admitted that she used the credit card and that she is responsible for the purchases made with her credit card.   Such admissions are sufficient to establish the existence of a contract for the purposes of account stated theory of liability.   See Citibank South Dakota N.A. v. Weed, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 09 5012981 (July 7, 2010, Adams, J.) (regular use of credit cards belies existence of evidence that there was no credit agreement).

The defendant further argues that the account stated theory of liability has not been met because she has requested validation of the debt but has not received such validation from the plaintiff.   In her affidavit, the defendant attests that she disputes the alleged debt.   The defendant has attached a copy of correspondence that she sent to Zwicker & Associates, P.C., dated November 6, 2007, in which she stated:  “I do dispute the validity of this debt.”   In the correspondence, the plaintiff further requested validation of the debt.   The correspondence, however, was not sent to the plaintiff, did not dispute the balance listed on any statement and did not dispute any items listed on any statement.  “[T]he customer must identify a billing error within [sixty] days after the billing statement.”   Cach, LLC v. Beam, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 09 5012751 (April 16, 2010, Brazzel–Massaro, J.);   Citibank (South Dakota), N.A. v. MacCrae–Gray, Superior Court, judicial district of Litchfield, Docket No. CV 08 5003388 (February 24, 2009, Pickard, J.);   see also 15 U.S.C. § 1666.  “The customer must identify a particular charge and a blanket statement of error does not satisfy this requirement.”  Cach, LLC v. Beam, supra, Superior Court, Docket No. CV 09 5012751.   Again, as previously discussed, the defendant admitted that she never sent a written dispute to the plaintiff regarding any items appearing on the statements.

While there is no genuine issue of material fact as to the defendant's liability under an account stated theory, there is an issue of fact as to the amount of debt owed.   The most recent statement attached to the motion for summary judgment, dated September 19, 2007, reflects an outstanding balance of $8,209.87.   Udy attests in his affidavit that the account balance at the time of this lawsuit was $8,769.15, however, there was no documentation submitted to support such an outstanding balance.⁵  “[W]hen examination of the affidavit and exhibits accompanying the plaintiff's motion for summary judgment discloses the unchallenged existence of unpaid debts, summary judgment can be granted ․ The court may grant a motion for summary judgment on liability only and hold [a] hearing on damages at a later date.”  (Internal quotation marks omitted.)   Citibank v. Morgan, Superior Court, judicial district of Ansonia–Milford, Docket No. CV 05 4001516 (February 27, 2006, Ronan, J.T.R.) (40 Conn. L. Rptr. 801, 802);  see also Practice Book § 17–50.⁶  Furthermore, in its prayer for relief, the plaintiff seeks attorneys fees, costs, prejudgment interest and postjudgment interest.   The plaintiff has not provided an itemization of its costs and has not attempted to establish the propriety of interest in the present case, however.⁷

CONCLUSION

For the foregoing reasons, the plaintiff's motion for summary judgment is granted as to liability only and a hearing in damages is ordered pursuant to Practice Book § 17–50.

Wilson, J.

FOOTNOTES

FN1. At the outset, the defendant argues that the affidavit submitted with the plaintiff's motion for summary judgment is insufficient because it was prepared in anticipation of litigation, is self-serving and contains improper legal conclusions.  Practice Book § 17–46 provides in relevant part:  “Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.”   A number of decisions of the Superior Court “have consistently discounted self-serving affidavits as insufficient to support a motion for summary judgment ․ In these cases, however, the self-serving affidavits typically contain conclusory statements that, in and of themselves, form the sole basis for the movant's motion for summary judgment.”  (Internal quotation marks omitted.)   Citibank (South Dakota), N.A. v. Watt, Superior Court, judicial district of New London, Docket No. CV 09 5013051 (August 18, 2010, Martin, J.) (50 Conn. L. Rptr. 461, 462).   In his affidavit, Udy attests that he is familiar with the manner in which the plaintiff creates and maintains its normal books, credit accounts and monthly statements and proceeds to attest to specific facts concerning the defendant's credit account.   Therefore, the court finds the affidavit is sufficient and will consider it in its determination of whether the plaintiff's motion for summary judgment should be granted..  FN1. At the outset, the defendant argues that the affidavit submitted with the plaintiff's motion for summary judgment is insufficient because it was prepared in anticipation of litigation, is self-serving and contains improper legal conclusions.  Practice Book § 17–46 provides in relevant part:  “Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.”   A number of decisions of the Superior Court “have consistently discounted self-serving affidavits as insufficient to support a motion for summary judgment ․ In these cases, however, the self-serving affidavits typically contain conclusory statements that, in and of themselves, form the sole basis for the movant's motion for summary judgment.”  (Internal quotation marks omitted.)   Citibank (South Dakota), N.A. v. Watt, Superior Court, judicial district of New London, Docket No. CV 09 5013051 (August 18, 2010, Martin, J.) (50 Conn. L. Rptr. 461, 462).   In his affidavit, Udy attests that he is familiar with the manner in which the plaintiff creates and maintains its normal books, credit accounts and monthly statements and proceeds to attest to specific facts concerning the defendant's credit account.   Therefore, the court finds the affidavit is sufficient and will consider it in its determination of whether the plaintiff's motion for summary judgment should be granted.

FN2. It bears noting that the statements were not properly authenticated.   See Conn.Code Evid. § 9–1(a).  “Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment.”   (Internal quotation marks omitted.)  Great Country Bank v. Pastore, 241 Conn. 423, 436, 696 A.2d 1254 (1997).  “[B]efore a document may be considered by the court in support of a motion for summary judgment, there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be.”   (Internal quotation marks omitted.)  New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005).   While Udy attests in his affidavit that the plaintiff sent monthly statements of account to the defendant, he never attests that the statements submitted with the motion for summary judgment are the statements in question.  “A court has discretion, however, to consider unauthenticated documentary evidence when no objection has been raised by the opposing party.”   Notarino v. New Haven, Superior Court, judicial district of New Haven, Docket No. CV 09 5030679 (July 15, 2010, Wilson, J.), citing Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006).   Since the defendant has not objected to the unauthenticated statements, the court will consider them..  FN2. It bears noting that the statements were not properly authenticated.   See Conn.Code Evid. § 9–1(a).  “Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment.”   (Internal quotation marks omitted.)  Great Country Bank v. Pastore, 241 Conn. 423, 436, 696 A.2d 1254 (1997).  “[B]efore a document may be considered by the court in support of a motion for summary judgment, there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be.”   (Internal quotation marks omitted.)  New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005).   While Udy attests in his affidavit that the plaintiff sent monthly statements of account to the defendant, he never attests that the statements submitted with the motion for summary judgment are the statements in question.  “A court has discretion, however, to consider unauthenticated documentary evidence when no objection has been raised by the opposing party.”   Notarino v. New Haven, Superior Court, judicial district of New Haven, Docket No. CV 09 5030679 (July 15, 2010, Wilson, J.), citing Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006).   Since the defendant has not objected to the unauthenticated statements, the court will consider them.

FN3. In her answer, the defendant denied that her address is 2611 Long Hill Road, Guilford, and in her answer to the plaintiff's interrogatories stated that her address is 235 Woodland Road, Guilford.   A copy of correspondence from the defendant to Zwicker & Associates, P.C., dated December 6, 2007, which was attached to the defendant's answer to the plaintiff's interrogatories and submitted by the defendant in her objection, however, listed her address as 2611 Long Hill Road, Guilford..  FN3. In her answer, the defendant denied that her address is 2611 Long Hill Road, Guilford, and in her answer to the plaintiff's interrogatories stated that her address is 235 Woodland Road, Guilford.   A copy of correspondence from the defendant to Zwicker & Associates, P.C., dated December 6, 2007, which was attached to the defendant's answer to the plaintiff's interrogatories and submitted by the defendant in her objection, however, listed her address as 2611 Long Hill Road, Guilford.

FN4. The copy of the credit card agreement is also not authenticated.   See footnote 2. Since no objection was raised to the authenticity, the court will consider the copy of the agreement submitted by the plaintiff..  FN4. The copy of the credit card agreement is also not authenticated.   See footnote 2. Since no objection was raised to the authenticity, the court will consider the copy of the agreement submitted by the plaintiff.

FN5. It bears noting that a statement with an account balance of $8,769.15, dated June 19, 2009, was attached to the complaint.   This statement, however, was not submitted with the plaintiff's motion for summary judgment and was dated nearly two years after the most recent statement submitted with the plaintiff's motion..  FN5. It bears noting that a statement with an account balance of $8,769.15, dated June 19, 2009, was attached to the complaint.   This statement, however, was not submitted with the plaintiff's motion for summary judgment and was dated nearly two years after the most recent statement submitted with the plaintiff's motion.

FN6. Practice Book § 17–50 provides in relevant part:  “A summary judgment, interlocutory in character, may be rendered on the issue of liability alone, although there is a genuine issue as to damages.   In such case the judicial authority shall order an immediate hearing before a judge trial referee, before the court, or before a jury, whichever may be proper, to determine the amount of the damages ․”.  FN6. Practice Book § 17–50 provides in relevant part:  “A summary judgment, interlocutory in character, may be rendered on the issue of liability alone, although there is a genuine issue as to damages.   In such case the judicial authority shall order an immediate hearing before a judge trial referee, before the court, or before a jury, whichever may be proper, to determine the amount of the damages ․”

FN7. “Prejudgment interest, awarded pursuant to [General Statutes] § 37–3a, runs to the date of judgment ․ It follows, therefore, that postjudgment interest, also awarded pursuant to § 37–3a, begins to run from the date of judgment.”  (Citation omitted.)  TDS Painting & Restoration, Inc. v. Copper Beech Farm, Inc., 73 Conn.App. 492, 510, 808 A.2d 726, cert. denied, 262 Conn. 925, 814 A.2d 379 (2002).  Section 37–3a(a) provides in relevant part:  “[I]nterest at the rate of ten percent 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 ․” Our Supreme Court has stated that “[a] trial court must make two determinations when awarding compensatory interest under § 37–3a:  (1) whether the party against whom interest is sought has wrongfully detained money due the other party;  and (2) the date upon which the wrongful detention began in order to determine the time from which interest should be calculated.”  Blakeslee Arpaia Chapman, Inc. v. El Constructors, Inc., 239 Conn. 708, 735, 687 A.2d 506 (2012).   Whether to award prejudgment or postjudgment interest is an equitable determination lying in the discretion of the trial court.   See id., 734 (prejudgment interest);  Ballou v. Law Offices Howard Lee Schiff P.C., 304 Conn. 348, 356, 39 A.3d 1075 (2012) (postjudgment interest)..  FN7. “Prejudgment interest, awarded pursuant to [General Statutes] § 37–3a, runs to the date of judgment ․ It follows, therefore, that postjudgment interest, also awarded pursuant to § 37–3a, begins to run from the date of judgment.”  (Citation omitted.)  TDS Painting & Restoration, Inc. v. Copper Beech Farm, Inc., 73 Conn.App. 492, 510, 808 A.2d 726, cert. denied, 262 Conn. 925, 814 A.2d 379 (2002).  Section 37–3a(a) provides in relevant part:  “[I]nterest at the rate of ten percent 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 ․” Our Supreme Court has stated that “[a] trial court must make two determinations when awarding compensatory interest under § 37–3a:  (1) whether the party against whom interest is sought has wrongfully detained money due the other party;  and (2) the date upon which the wrongful detention began in order to determine the time from which interest should be calculated.”  Blakeslee Arpaia Chapman, Inc. v. El Constructors, Inc., 239 Conn. 708, 735, 687 A.2d 506 (2012).   Whether to award prejudgment or postjudgment interest is an equitable determination lying in the discretion of the trial court.   See id., 734 (prejudgment interest);  Ballou v. Law Offices Howard Lee Schiff P.C., 304 Conn. 348, 356, 39 A.3d 1075 (2012) (postjudgment interest).

Wilson, Robin L., J.