Opinion
No. CV08 501 72 25 S
January 23, 2009
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
On December 19, 2008, the plaintiff, Cach, LLC, moved for summary judgment on its two-count complaint, which essentially alleges that the defendant, Marvin G. Palacios, failed to make payments for credit extended in the amount of $5,458.06. The complaint further alleged that Cach is successor in interest to Providian Bank, which extended credit, transmitting account statements which were received by the defendant without protest or objection. The plaintiff seeks recovery based on the defendant's alleged default of an open-end credit account in count one, and on an "account stated" claim in count two. The defendant, in his answer filed on July 10, 2008, admitted the allegations contained in the complaint and agreed he owed the amount stated, but indicated his desire to set up a payment plan with lower payments than the minimum amounts that were requested.
In its motion for summary judgment, the plaintiff contends that no genuine issue of material fact exists, and that it is entitled to judgment as a matter of jaw. The plaintiff submitted a memorandum of law in support of the motion, as well as an affidavit of one Kimberly Stone, an authorized agent of Cach, LLC, with respect to its accounts. Additionally, certified documentation was filed with respect to a merger of Providian Bank as well as the assignment of accounts to the plaintiff by Providian Bank. No objection or counter affidavit was filed by the defendant. The motion for summary judgment was before the court as a non-arguable matter on January 20, 2009.
Before turning to the merits, it is first necessary to consider the relevant standard of review. "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 . . ." (Citation omitted; internal quotation marks omitted.) Johnson v. Atkinson, 283 Conn. 243, 926 A.2d 656 (2007). In seeking summary judgment, "[t]he courts are in entire agreement that the moving party . . . 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 . . . 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 . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . ." Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006). When a party moves for summary judgment "and there [are] no contradictory affidavits, the court properly [decides] the motion by looking only to the sufficiency of the [movant's] affidavits and other proof." Heyman Associates No. 1 v. Insurance Co. of Pennsylvania, 231 Conn. 756, 795, 653 A.2d 122 (1995).
As the defendant has not filed a counter affidavit, the court looks to the sufficiency of the plaintiff's affidavit and supporting documentation, including the records of the defendant's credit card account with the plaintiff, which indicates the following. Providian Bank extended credit to the defendant to pay for various goods and services by credit card. Thereafter, Providian Bank sent the defendant monthly statements which reflected the activity on the credit card, including payments, charge, credits, and the new balance each month. The most recent statement reflects a new balance of $5,458.06. The plaintiff, Cach, LLC, presently holds right, title and interest in the account.
Based on this evidence, the plaintiff seeks a determination of liability for default of an open end credit account in count one, and on the theory of "account stated" in count two. The account stated theory has been recognized by this state's Supreme Court as early as 1900. See Dunnett v. Thorton, 73 Conn. 1, 15-16 (1900). In General Petroleum v. Merchants Trust Co., 115 Conn. 50, 56 (1932), the court explained the account stated theory: "[t]he delivery by the bank . . . of each statement of account . . . was a rendition of the account so that retention thereof for an unreasonable time constituted an account stated which is prima facie evidence of the correctness of the account." Numerous superior court decisions have since recognized the validity of an account stated cause of action in Connecticut. See e.g., Citibank (South Dakota) N.A., v. Moniz, Superior Court, judicial district of Danbury, Docket No. 075003144 (February 22, 2008, Sheedy, J.) [45 Conn. L. Rptr. 144]; Citibank (South Dakota,) N.A. v. Strumpf, Superior Court, judicial district of Litchfield, Docket No. 064004215 (September 13, 2006, Pickard, J.); Citibank (South Dakota) N.A. v. Marger, Superior Court, judicial district of Danbury, Docket No. 054001358 (May 25, 2006, Schuman, J.); Citibank (South Dakota), N.A. v. Piscitelli, Superior Court, judicial district of New Haven, Docket No. CV040491060 (March 17, 2006, Corradino, J.) [40 Conn. L. Rptr. 873]; Citibank v. Gemske, Superior Court, judicial district of Middlesex, Docket No. CV05 4002020 (December 21, 2005, McWeeny, J.) [40 Conn. L. Rptr. 489]; Citibank (South Dakota), N.A. v. Stewart, Superior Court, judicial district of New Haven, Docket No. CV05 4012384 (November 30, 2005, Silbert, J.) [40 Conn. L. Rptr. 337]. Additionally, this court has also recognized the validity of an account stated cause of action. See Citibank (South Dakota), N.A. v. Yolanda A. Francis, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV07 5008501 (January 20, 2009).
As the "account stated" cause of action is recognized in this state, because the plaintiff has put forth admissible evidence in support of that cause of action, as well as the cause of action set forth in count one, and because there is no material fact in genuine dispute regarding either liability or the amount of damages, the plaintiff is entitled to judgment as a matter of law.
For all of the above reasons, the plaintiff's motion for summary judgment is granted as to both liability and damages.