Opinion
No. CV 04-0490701
December 21, 2005
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT ( #106)
This is a debt collection action wherein the plaintiff, Citibank (South Dakota) N.A. ("Citibank"), seeks the recovery of allegedly unpaid credit card bills from the defendant Gloria F. Kilberg. In the present motion, Citibank has moved for summary judgment asserting that there are no genuine issues of fact and that it is entitled to judgment in the amount of $12,025.44, plus costs. The defendant objects to the motion on two grounds. First, that the so-called account stated theory relied upon by Citibank is not recognized in Connecticut. Second, that there are genuine issues of fact as to the amount due. For the reasons set forth below, the motion for summary judgment is granted.
DISCUSSION
The standards for granting summary judgment in Connecticut are well established. Summary judgment is appropriate if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Practice Book § 17-49. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. Appleton v. Board of Education, 254 Conn. 205, 209 (2000). 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 (1988).
The party seeking summary judgment has the burden of showing the absence of any genuine issue of material fact which, under applicable principles of substantive law, entitle such party to judgment as a matter of law. Appleton v. Board of Education, supra, 254 Conn. 209. The existence of a genuine issue of material fact must be demonstrated by counter-affidavits and concrete evidence. Pion v. Southern New England Telephone, CT Page 16573 44 Conn.App. 657, 663 (1997). A party's conclusory statements, in the affidavit and elsewhere, may not constitute evidence sufficient to establish the existence of disputed material facts. Gupta v. New Britain General Hospital, 239 Conn. 574, 583 (1996). Moreover, a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. Maffucci v. Royal Park, Ltd. Partnership, 243 Conn. 552, 554-55 (1998). It is not enough, however, for the opposing party to assert the existence of such a dispute; mere assertions of fact are insufficient to establish the existence of a material fact. Id.
In the present case, Citibank has supported its motion for summary judgment with an affidavit of Amanda Carter, its employee. The affidavit states in pertinent part that: (1) Citibank opened an account and extended credit to the defendant to pay for goods and services charged to the account; (2) Citibank, on a monthly basis, sent defendant full and true accounts of defendant's transactions with Citibank; (3) the defendant neither disputed the validity of the balance owed nor notified Citibank of any claims, defenses, offsets or counterclaims to the balance due; (4) the defendant failed to pay the minimum amount due on the account; and (5) the balance due is $12,025.44. Attached to the affidavit are copies of each monthly statement sent to the defendant from opening of the account in January 2002 to April 13, 2005.
In support of its motion, Citibank asserts that as a National Association it is governed by federal statutes including the Fair Credit Billing Act, 15 U.S.C. § 1666 et seq. That statute protects consumers from inaccurate and unfair billing and credit card practices by allowing consumers a 60-day period after billing to send written notice of a billing error. 15 U.S.C. §§ 1666- 1666j. Citibank's affidavit states that no written complaints of billing errors were received from the defendant.
Citibank also asserts that based on the monthly statements sent to defendant and a lack of any complaint or objection, an account stated was created between the parties. Relying principally on New York law, Citibank argues that the correctness of the balance due in the present case is based a so-called account stated theory. See Citibank NA. v. Jones, 708 N.Y.S.2d 517, 518 (A.D. 3 Dept. 2000) ("an account stated is an agreement between parties to an account based upon prior transactions between them with respect to the correctness of the account items and balance due.").
In opposition to Citibank's claims, the defendant asserts that the account stated theory has not been recognized in Connecticut and should not be applied in this case. In addition, the defendant has submitted a counter-affidavit that in relevant part states:
I have serious questions of fact as to how much I owe my Citibank Account in this case . . . The plaintiff claims $12,025.44 in their suit, but I believe it to be much less.
The concept of account stated has venerable roots in both New York and Connecticut. An account stated is an account balanced and rendered, with an assent to the balance express or implied, so that the demand is essentially the same as if a promissory note had been given for the balance. Interman In. Products v. R.S.M. Electron Power, 37 N.Y.2d 155, 371 N.Y.S.2d 675, 678 (1975). In Newburger-Morris Co. v. Talcott, 219 N.Y. 505, 512, 114 N.E. 846, 848 (1916), Judge Cardozo wrote "the very meaning of an account stated is that the parties have come together and agreed upon the balance of indebtedness insimul computassent, so that an action to recover the balance as upon an implied promise of payment may thenceforth be maintained."
In Connecticut, an account stated has been recognized for over one hundred years. See Zacarino v. Pallotti, 49 Conn. 36, 38 (1870). ("An account stated is an agreement between persons who have had previous transactions, fixing the amount due in respect to such transactions and promising payment.")
As in New York, account stated is not conclusive evidence of a balance due but rather establishes the balance presumptively. Nichols v. Alsop, 6 Conn. 477 (1827), General Petroleum Products, Inc. v. Merchants Trust Co., 115 Conn. 50, 56 (1932).
In the present case, Citibank's affidavit demonstrates that monthly account statements were sent to the defendant over a period of thirty-nine months and no written complaints about the balance were made. The defendant's counter affidavit merely contains her opinion that she owes less than claimed, but does not state any supporting facts.
On the present record, Citibank has established an unpaid account balance of $12,025.44. The plaintiff's affidavit is insufficient to raise a genuine issue of material fact as to that balance. Accordingly, Citibank is entitled to summary judgment.
Conclusion
For the reasons set forth above, Citibank's motion for summary judgment in the amount of $12,025.44 plus costs is granted.
So Ordered.