Opinion
No. TTD CV 07-5001289-S
June 22, 2007
MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
This case is an action for collection of the debt on defendant's Citi-Diamond Preferred Rewards Card. The unpaid balance at the time suit was filed was $12,861.05. The claim is based on an "account stated" theory of liability. Plaintiff has moved for Summary Judgment. For the following reasons, the court grants the motion and enters judgment for the plaintiff in the amount of $12,861.05 plus collection costs of $280.00 requested at the hearing on the motion, for a total of $13,141.05.
I.
"The law governing summary judgment and the accompanying standard of review are well settled. Practice Book § [17-49] requires that 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 material fact is a fact that will make a difference in the result of the case. . . The facts at issue are those alleged in the pleadings. . .
"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of facts. The courts are in entire agreement that the moving party for summary judgment 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. The courts hold the movant 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.
"It is frequently stated in Connecticut's case law that, pursuant to Practice Book §§ 17-45 and 17-46, a party opposing a summary judgment motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. . . [T]ypically, [d]emonstrating a genuine issue requires a showing of evidentiary facts or substantial evidence outside the pleadings from which material facts alleged in the pleadings can be warrantably inferred. . . Moreover, [t]o establish the existence of a material fact, it is not enough for the party opposing summary judgment merely to assert the existence of a disputed issue. . . Such assertions are insufficient regardless of whether they are contained in a complaint or a brief. . . Further, unadmitted allegations in the pleadings do not constitute proof of the existence of a genuine issue as to any material fact. . .
"An important exception exists, however, to the general rule that a party opposing summary judgment must provide evidentiary support for its opposition, and that exception has been articulated in our jurisprudence with less frequency than has the general rule. . . 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." (Citations omitted; internal quotation marks omitted.) Rockwell v. Quintner, 96 Conn.App. 221, 227-30, 899 A.2d 738, cert. denied, 280 Conn. 917, 908 A.2d 538 (2006); see also Vitale v. Kowal, 101 Conn.App. 691 (2007).
The Practice Book further mandates that "[a]ny adverse party shall at least five days before the date the motion is to be considered on short calendar file opposing affidavits and other available documentary evidence. Affidavits, and other documentary proof not already part of the file, shall be filed and served as are pleadings." Practice Book § 17-45. "Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto." Practice Book § 17-46.
II
In the instant case, the plaintiff filed a Motion for Summary Judgment dated April 26, 2007, with an Affidavit from a collection agent for the plaintiff authenticating and explaining records of the bank entered and kept in the regular course of business. The records and affidavit show, and the court finds, as follows: The plaintiff is a national bank that, CT Page 11280 inter alia, extends credit to customers to permit customers to pay for various goods and services by credit card. At least since May 2003, the defendant had a Citi Diamond Preferred Rewards Card Master Card account with the plaintiff, the terms of which permitted defendant to use the card for payments and incur no finance charges if the balance was paid in full before the payment due date. The agreement further provided that the defendant would be in default if she failed to pay the minimum amount due by its due date or if defendant exceeded her credit limit. The defendant went over her credit limit in June 2006, and stopped paying on her balance in July 2006. The plaintiff sent the defendant accurate statements monthly, and there is no proof that the defendant ever disputed the amounts on the statements. Defendant usually made some payments on the balance until July 2006, and her payments were correctly credited when paid. The balance in the last statement supplied in the Affidavit, pled in the Complaint, and identified in the Motion for Summary Judgment was $12,861.05. The credit card agreement also allowed for reasonable attorneys fees and costs and expenses. Card Agreement, p. 14, attached to Affidavit in Support of Motion for Summary Judgment. At hearing on the Motion, plaintiff's counsel appeared and indicated that the amount requested should be updated to include an additional $280.00 for the additional charges. The additional charges are allowable, for a total of $13,141.05.
Based on these facts, the plaintiff seeks a determination of liability on the theory of account stated. Several superior court decisions have recognized the validity of an account stated cause of action in Connecticut involving the same plaintiff as here. See Citibank (South Dakota), N.A. v. Griffing, Superior Court, judicial district of Hartford, No. CV 05-4011520 S (July 17, 2006, Keller, J.); Citibank (South Dakota), N.A. v. Manger, Superior Court, judicial district of Danbury, Docket No. CV 05-4001358 S (May 25, 2006, Shuman, J.); Citibank (South Dakota), N.A. v. Piscitelli, Superior Court, judicial district of New Haven, Docket No. CV 04-0491060 (March 17, 2006, Corradino, J.) [40 Conn. L. Rptr. 873]; Citibank v. Gemski, Superior Court, judicial district of Middlesex, Docket No. CV05-4002020 (December 21, 2005, McWeeney, J.); Citibank (South Dakota), N.A. v. Stewart, Superior Court, judicial district of New Haven, Docket No. CV 05 4012384 (November 30, 2005, Silbert, J.) [40 Conn. L. Rptr. 337] These decisions ultimately rely on our Supreme Court's opinion in General Petroleum Products v. Merchants Trust Co., 115 Conn. 50, 160 A. 296 (1932), wherein the court stated:
The delivery by the bank to the plaintiff of each statement of the latter's account, with the canceled checks upon which the charges against it were based, 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. Such account stated can be opened and impeached upon proof of mistake or fraud, but the plaintiff's silence as to the correctness of the account rendered puts upon it the burden of proving that the account, as stated, was the result of such fraud or mistake.
General Petroleum Products v. Merchants Trust Co., supra, 115 Conn. 56.
An account stated has been defined, generally, as "an agreement between parties who have had previous transactions of a monetary character that all the items of the account representing such transactions, and the balance struck, are correct, together with a promise, expresses or implied, for the payment of such balance." 1A C.J.S. Account Stated, § 2a, p. 67 (1985).
The court finds that the plaintiff has carried its burden of showing a lack of material facts and eligibility for judgment as a matter of law in the amount of $13,141.05. On the other side, the defendant filed no opposition papers to the plaintiff's Motion for Summary Judgment, dated April 26, 2007, and did not appear at the short calendar hearing on the Motion. However, defendant earlier filed a Verified Answer, dated April 2, 2007, with a general denial, and further paragraphs labeled Full Affirmative Defense[s] alleging: (1) lack of personal jurisdiction due to improper service, First and Full Affirmative Defense; (2) failure to state a cause of action, Second and Full Affirmative Defense; (3) that the defendant was never provided with an accurate account stated, Third and Full Affirmative Defense; and (4) that defendant was never credited with payments made to the account. Fourth Affirmative Defense. This pleading style is not customary in Connecticut. Nevertheless, the court will treat the pleading as an Answer with Special Defenses as allowed by Practice Book §§ 10-46 et seq.
The Verified Answer is not signed under oath by the defendant; rather, it is signed by her counsel. Attached to the Verified Answer is a Verification page, also not signed under oath, but signed by counsel indicating that counsel was affirming the Verified Answer as true under penalties of perjury. Counsel states, in the Verification, that his knowledge is based on "conversations and records of the Defendant." Verification, Court file. The practice of filing an affirmation, rather than a statement under oath, is not generally recognized in civil matters in Connecticut. See, e.g., Cahn v. Cahn, 225 Conn. 666, 677 n. 6, 626 A.2d 296 (1993) ("whatever that is"). The court will treat it as the equivalent of an Affidavit. Even with this allowance, however, the affirmation is insufficient to raise a material issue of fact. No records are supplied disputing records supplied by the plaintiff. Also, the contents of the conversations with the defendant alleged are not explicated. The conversations and records mentioned apparently refer to the bare, conclusory allegations in the Full Affirmative Defenses. Bare, conclusory assertions will not suffice to defeat a Motion for Summary Judgment. Jones v. H.N.S. Management, Inc., 92 Conn.App. 223, 229, 883 A.2d 831 (2005). Moreover, in the vehicle presented, the testimony of counsel as to the testimony of the defendant is ordinarily inadmissible as hearsay. Code of Evidence § 8-2. In sum, the conclusory allegations presented to the court with inadmissible hearsay fail to raise a material issue of fact forestalling summary judgment for the plaintiff in the instant case.
On the issue of personal jurisdiction, the court file contains a Marshal's Return reporting abode service, which ordinarily suffices to establish personal jurisdiction. Smith v. Smith, 150 Conn. 15, 20, 183 A.2d 848 (1962). Defendant supplies no facts as to her claim of improper service, so, there is no basis presented for challenging personal jurisdiction. Moreover, no Motion to Dismiss was filed raising this issue. Under such circumstances, personal jurisdiction issues are deemed waived. Practice Book § 10-32.
III
For all of the foregoing reasons, the court grants the Motion for Summary Judgment and enters judgment for the plaintiff in the amount of $13,141.05.