Midland Funding, Inc. v. Ericka O'Connell (2014)

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

Plaintiff moves for a summary judgment on a two-count complaint arising from a consumer credit card contract.   Defendant has filed an objection.

Recently, in Marinos v. Poirot, 308 Conn. 706 (2013), at pages 711–12, the Supreme Court articulated how deliberations on a motion for summary judgment must proceed:

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.”   A party moving for summary judgment is held 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 ․ As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ․ When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ․ Once the moving party has met its burden, however, 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 (citations omitted).

This court has utilized that process in its review of this motion so as to require of plaintiff a showing excluding any real doubt as to any issue of material fact as to its right to a judgment on the allegations of its complaint.   If it succeeds in doing so, the burden then shifts to the defendant to establish there is a bona fide dispute as to an issue of material fact;  that assertion must be supported by a counteraffidavit and, where appropriate, supporting documents relevant to that material fact.

The first count of the complaint alleges that plaintiff is the successor in interest, via a purchase agreement, to the rights of Chase Bank USA, N.A., which issued defendant a credit card with an unpaid balance.   Count two incorporates the allegations of the first count and offers an alternative theory—”account stated”—upon which plaintiff can recover.   Since for reasons outlined herein the allegations of the first count suffice to permit a judgment in plaintiff's favor, the court at this time will not analyze count two.

Defendant appeared here and filed an answer on June 5, 2013.   The answer denied the allegations of the complaint but raised no special defense.   Some discovery ensued, the process of which has itself been the subject of prior rulings by this court.  (See motions for default for failure to respond to interrogatory and production requests, and for determination of sufficiency of answers to requests for admissions, determined by this court on December 27, 2013.)

Plaintiff filed the instant motion on November 25, 2013.   It filed an affidavit signed on May 3, 2012, by Erin Hale, Legal Specialist for a corporate entity affiliated with plaintiff, asserting that she had examined the records of plaintiff, found proof that defendant was a credit customer of Chase Bank USA, N.A., and that plaintiff had purchased defendant's account from Chase.   Further, she averred, prior to the sale to plaintiff Chase had charged off defendant's account in 2010 and that the last payment recorded was made in February of 2011.   The account remains in default, with a balance now due of $6,787.76.

These allegations in the form of an affidavit are sufficient to establish a prima facie case that defendant is indebted to plaintiff.   Defendant counters merely by asserting that she has never had a credit agreement with plaintiff's predecessor.   She makes this assertion in the form of a memorandum accompanying her written objection, and again in an “affidavit” attached thereto, but which contains no jurat indicating that defendant swore to the truth thereof.   While State v. Colon, 230 Conn. 24 (1994) indicates that the omission of a jurat may not be fatal to a finding that a document qualifies as an affidavit, here there is no extrinsic proof of the existence of an oath which would save this document.

Her problem is more than a mere formality.   Attached to plaintiff's memorandum supporting its motion is a sheaf of monthly credit card statements issued to defendant by Chase covering a period from January of 2009 through June of 2010.   These statements, sent to “Ericka O'Connell,” show monthly payments throughout 2009, but none in 2010.   Unless the statements were fabricated from wholecloth, they establish that defendant was a party to this account who eventually defaulted in payment.   Her evasive responses to the discovery requests alluded to above (largely of the “neither admit nor deny” variety) do nothing to further her cause.

The motion for summary judgment is granted, and judgment shall enter for plaintiff in the amount of $6,787.76 damages, plus costs, and post-judgment interest of five per cent per annum;  no attorneys fees are awarded.

Boland, J.

Boland, John D., J.