Citibank, N.A. v. Maryalyson A. Millaras (2013)

MEMORANDUM OF DECISION ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (# 105)

The plaintiff, Citibank, filed a complaint on January 15, 2013, alleging that the defendant, MaryAlyson Millaras, defaulted on a Sears Gold Mastercard account she established with the plaintiff.¹  The defendant filed an appearance on her own behalf on January 22, 2013.   On April 8, the plaintiff filed and served on the defendant a notice of request for admissions.   The defendant's present attorney filed on her behalf an appearance on May 24, 2013, and a notice of compliance with the request for admission on May 29, 2013.

On June 27, 2013, the plaintiff filed a motion for summary judgment supported by a brief and the affidavit of Ashley Cooley, an employee of the plaintiff, with attached documents.   The defendant filed an objection and brief on July 8, 2013.   The plaintiff filed a response on July 17, 2013.   The motion was submitted without oral argument on July 22, 2013.

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.”  (Internal quotation marks omitted.)  Patel v. Flexo Converters U.S.A., Inc., 309 Conn. 52, 56–57, 68 A.3d 11962 (2013).   The burden is on the moving party to show the nonexistence of a genuine issue of material fact.  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008).   Once the movant has met this burden, the burden shifts to the opposing party to show that there is a disputed factual issue.  Id. To do so, the opposing party must present evidence;  assertions of fact alone are insufficient to demonstrate that a disputed factual issue exists.  Id. In ruling on a motion for summary judgment, the court may consider exhibits and affidavits submitted by the parties, as well as reasonable inferences that could be drawn from them.  United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 381, 260 A.2d 596 (1969).

Practice Book § 13–23(a), in relevant part, provides:  “Each matter of which an admission is requested is admitted unless, within thirty days after the filing of the notice [of the request] ․ the party to whom the request is directed files and serves upon the party requesting the admission a written answer or objection addressed to the matter ․” If a party does not respond in that time period, then the facts which were requested to be admitted are conclusively established.  Allied Grocers Cooperative, Inc. v. Caplan, 30 Conn.App. 274, 279, 620 A.2d 165 (1993).   Those facts are binding judicial admissions, and the court can properly grant a motion for summary judgment based on such admissions.  Montanaro v. Balcom, 132 Conn.App. 520, 525–26, 35 A.3d 280 (2011).   While some latitude is given to litigants who are self-represented, the court cannot permit this allowance to interfere with the rights of the other party and the rules of practice still apply.  Shobeiri v. Richards, 104 Conn.App. 293, 296, 933 A.2d 728 (2007).

It is not disputed that the plaintiff served a request for admissions on the defendant on April 8, 2013, and that she did not answer or object to them within 30 days.   Even since the defendant's attorney appeared, there has been no substantial response to the plaintiff's request for admissions.²  There has been no request to withdraw or amend the defendant's admissions.   See Practice Book § 13–24(a).   There has been no response to the request for admissions which complies with Practice Book § 13–23(a).³  There has been no claim that any of the requested admissions is objectionable.   There simply has been no denial of any of the facts the admission of which was requested.   The defendant offers no evidence to dispute the Cooley affidavit, but merely asserts that there are issues of material fact as to the methods that the plaintiff used to calculate interest.   This is insufficient to meet her burden of demonstrating that a there is a material factual dispute.   Ramirez v. Health Net of the Northeast, Inc., supra, 285 Conn. 11.

In this light, the court finds the following relevant facts.   The defendant had a credit card issued by the plaintiff with an account number ending in 9070.   The defendant agreed to the terms for the account, used the credit card, and is personally responsible for payment of the account.   The defendant, or persons with authorization from the defendant, charged items to the credit card account.   The defendant was sent monthly statements setting forth the charges and credits to the account, as well as the balance due and owing.   The court finds, by inference from the fact that she made payments on the account, that the defendant knew of those statements and received at least some of them.   She never disputed in writing the charges made to the account and, prior to commencement of this action, never objected to the monthly statements.   The defendant received a final statement on the account indicating the balance due.   As of August 26, 2012, the defendant owed the plaintiff $6,094.25 for charges, balance transfers, cash advances, and/or other application fees or charges to the credit card account.

CONCLUSION

For the foregoing reasons, the plaintiff's motion for summary judgment is granted.   Judgment shall enter for the plaintiff in the sum of $6094.25 plus costs.   The Judgment shall provide that postjudgment interest on the unpaid balance, including costs, shall accrue at the rate of 4.00% per year.   Until further order of the court, or except as agreed by the parties in writing, the defendant is ordered to make weekly payments of not less than $35.00 on account of the Judgment.   Payments shall be made to the plaintiff's attorney of record, as trustee for the plaintiff, at said attorney's address of record, or to such other payee or address as said attorney may instruct the defendant in writing, with a copy to her attorney of record.   The first weekly payment shall be due November 15, 2013.   The defendant may combine payments for convenience so long as no required weekly payment is late.   Execution of this Judgment is stayed so long as the defendant makes weekly payments on time as ordered above or as otherwise a) ordered by the court or b) agreed by the parties in writing.   Late payment may lead to other collection procedures without further notice to the defendant.

Cole–Chu, J.

FOOTNOTES

FN1. Both parties' briefs refer to the defendant's answer to the complaint.   A copy of the answer is attached as Exhibit 1 to the defendant's brief.   Though months have passed since the present motion was argued, the court has no record of the answer ever being filed.   Its absence is not pertinent, since both parties acknowledge the answer was filed and it has no bearing on the present decision..  FN1. Both parties' briefs refer to the defendant's answer to the complaint.   A copy of the answer is attached as Exhibit 1 to the defendant's brief.   Though months have passed since the present motion was argued, the court has no record of the answer ever being filed.   Its absence is not pertinent, since both parties acknowledge the answer was filed and it has no bearing on the present decision.

FN2. The cursory nature of the defendant's May 29, 2013, notice is apparent from its title:  “Notice of Compliance to Defendant's Requests for Mandatory Disclosure and Production,” and body:  “the Plaintiff hereby gives Notice to the Court of Compliance with the Defendant's requests for Admissions ․” Emphasis added..  FN2. The cursory nature of the defendant's May 29, 2013, notice is apparent from its title:  “Notice of Compliance to Defendant's Requests for Mandatory Disclosure and Production,” and body:  “the Plaintiff hereby gives Notice to the Court of Compliance with the Defendant's requests for Admissions ․” Emphasis added.

FN3. Practice Book § 13–23(a) requires that answers to a request for admissions be signed, “specifically deny the matter or set forth the reasons why the answering party cannot truthfully admit or deny the matter ․” and “fairly meet the substance of the requested admission ․” A copy of the defendant's response to the plaintiff's request for admissions was filed with the movant's reply brief.   Apart from several late, unsigned admissions, that response is disregarded because “I leave the Plaintiff to its proof as to the above” does not meet the § 13–23(a) requirements..  FN3. Practice Book § 13–23(a) requires that answers to a request for admissions be signed, “specifically deny the matter or set forth the reasons why the answering party cannot truthfully admit or deny the matter ․” and “fairly meet the substance of the requested admission ․” A copy of the defendant's response to the plaintiff's request for admissions was filed with the movant's reply brief.   Apart from several late, unsigned admissions, that response is disregarded because “I leave the Plaintiff to its proof as to the above” does not meet the § 13–23(a) requirements.

Cole–Chu, Leeland J., J.