LLC v. Ann Marie Mangano (2013)

Memorandum of Decision

In the first count of its revised complaint dated October 4, 2011, the plaintiff claims that it is the assignee of a credit card debt which the defendant owed to plaintiff's assignor, Citibank South Dakota, N.A. The plaintiff's second count alleges a cause of action to collect the same debt based on account stated.   In her answer dated October 20, 2011, the defendant admitted she had a Citibank South Dakota, N.A. credit card, but denied the remaining allegation of the complaint.

The matter was referred to attorney Fredric Ury as a fact finder.   The fact finder heard evidence on October 12, 2012, considered the post-hearing briefs filed by both parties and filed a report with the court dated February 14, 2013.   In that report the fact finder summarizes the testimony and evidence presented by the plaintiff.¹  The fact finder found that the plaintiff had proven that the defendant owed it $11,337.50 the principal amount of the debt assigned to it by Citibank South Dakota, N.A. The fact finder also found that the plaintiff's evidence did not show that the credit card agreement in effect at the relevant time provided for interest and attorneys fees.   In conclusion the fact finder recommended that the court enter judgment in favor of the plaintiff in the amount of $11,337.50.

On February 21, 2013, the defendant filed an objection to the fact finder's report claiming:  1) that the fact finder relied upon unauthenticated hearsay;  and 2) that the fact finder erred in finding that Exhibit 9, a copy of a credit card statement, was sent to the defendant.   On March 8, 2013, the plaintiff filed a reply to the defendant's objection to acceptance of the fact finder's report.   In its reply, the plaintiff claimed that the record before the fact finder fully supported his claims and recommendations.   The defendant's objections were heard on short calendar on April 8, 2013.   At the hearing the court noted the absence of a transcript of the proceedings before the fact finder and asked the parties to submit briefs addressing the issue as to the procedure to be followed under such circumstances.

Both parties submitted briefs on April 12, 2013.   In her brief, the defendant claims that the court can review the evidentiary rulings made by the fact finder on the basis of the following materials which she attached to her brief:  1) a copy of Exhibit 9, 2) the plaintiff's responses to requests for admissions;  and 3) an extract from the cross examination of plaintiff's witness, Donna DeCrescenzo.

Exhibit 9 is a credit card statement from Citibank, dated August 23, 2007, shows a “new balance” of $11,641.82, consisting of a “previous balance” of $11,222.50, a check in the amount of $115.00 returned for insufficient funds, and a “finance charge” of $304.32.   Without the finance charge the total due would have been $11,337.50, the amount found to be due by the fact finder.   At the top of the exhibit there is a note:  “TM:  CO–5000 08/26/09” The defendant claims that the record shows that this exhibit was never sent to the defendant.

In its brief the plaintiff agrees with the defendant that the court can review the fact finder's report without a complete record.   However, the plaintiff claims that the objections raised by the defendant are of such a nature that the court can not determine whether the objections have merit in the absence of a complete transcript.   The plaintiff claims that the burden is on the party objecting to the fact finder's report to provide the court with a sufficient record to permit a meaningful review.  Ruiz v. Gatling, 73 Conn.App. 574 (2002).

After reviewing the fact finder's report the court finds that it can not determine whether the fact finder found that the plaintiff had proven its case under the first count alleging cause of action for breach of contract, the second count alleging a case of action for account stated, or both.

Pursuant to the provision of Practice Book § 23–58(a)2 the court rejects the fact finder's report and refers the matter to the same fact finder for a new trial.

David R. Tobin, J.T.R.

FOOTNOTES

FN1. The report states that the defendant did not testify and did not offer any evidence..  FN1. The report states that the defendant did not testify and did not offer any evidence.

Tobin, David R., J.T.R.