Opinion
No. CV05 400 15 16
February 27, 2006
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
On November 23, 2004, the plaintiff, Citibank (South Dakota), N.A., filed this action seeking to recover on unpaid credit card bills issued to the defendant, Mark Morgan. The plaintiff now moves for summary judgment asserting that there are no genuine issues of material fact and that it is entitled to judgment in the amount of $2,164.44 plus costs. The defendant objects to the motion on the grounds that the account stated theory relied upon by the plaintiff is not recognized in Connecticut, and that there is a material issue of fact as to the amount owed.
On July 20, 2005, the plaintiff filed a motion for summary judgment based on the "account stated" theory. In support of its motion for summary judgment, the plaintiff submitted a memorandum of law and the following documents: (1) an affidavit of Jaime Payne, an employee of Citicorp Credit Services, Inc. (USA) and an authorized agent for its affiliate, Citibank South Dakota, N.A.; (2) a copy of a card agreement and a change in terms; and (3) copies of each monthly statement sent to the defendant from October 3, 2002 to December 3, 2004.
On January 4, 2006, the defendant filed a reply memorandum of law and his own affidavit in opposition. The plaintiff filed a reply memorandum of law on January 6, 2006, accompanied by two unpublished Superior Court decisions. Oral argument on the motion took place on January 17, 2006.
The standard for reviewing a motion for summary judgment is well settled. 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 . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Citations omitted; internal quotation marks omitted.) Barrett v. Montesano, 269 Conn. 787, 791-92, 849 A.2d 839 (2004).
"[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way . . . To succeed on a motion for summary judgment, [t]he movant must show 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." (Citations omitted; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).
The plaintiff argues that because it is a National Association, the credit card agreement is governed by interrelated statutes including the Federal Truth in Lending Act (FTILA) and the Fair Credit Billing Act (FCBA). Under the FCBA, 15 U.S.C. § 1666-1666j, customers are protected against inaccurate and unfair billing and credit card practices by allowing customers to send a written notice of a billing error within sixty days of receiving a statement. In support of this argument, the plaintiff's affidavit states that it sent the defendant monthly statements and that the defendant neither disputed the validity of the balance owed nor notified the plaintiff of any claims, defenses or offsets.
The plaintiff also contends that it does not need to demonstrate each purchase, charge and payment to the account to prove the balance due. Rather, the plaintiff asserts that delivery to a cardholder of the monthly account statement constitutes an account stated if the debtor retains those statements for a period of time without objection. In asserting that the account stated is prima facie evidence of the correctness of the account, the plaintiff relies on the Connecticut case of General Petroleum Products, Inc. v. Merchants Trust Co., 115 Conn. 50, 160 A. 296 (1932), and New York case law.
The defendant argues that the motion for summary judgment should be denied because there are contested issues of law and material fact. He contends that the account stated theory is not recognized in Connecticut and that there is no Connecticut appellate authority to support such a theory. In addition, the defendant argues that there is a material issue of fact as to the amount owed.
A review of Connecticut case law reveals that for over a century the Supreme Court has recognized an account stated claim. See General Petroleum Products, Inc. v. Merchants Trust Co., supra, 115 Conn. 50; Dunnett v. Thornton, 73 Conn. 1, 46 A.158 (1900); Zacarino v. Palloti, 49 Conn. 36 (1870); Nichols v. Alsop, 6 Conn. 477 (1827). A cause of action for accounts stated "centers on the obligation to pay a sum certain arising upon an examination by the parties of unsettled claims of indebtedness, and an agreement between them that all the articles are true and a particular sum remains due. This obligation may arise when there is no express promise to pay the particular sum, as where mutual claims are set off one against the other, and is a resultant balance agreed upon as due . . . The essential and controlling factor upon which the obligation arises is an agreement between the parties that items of indebtedness, before open to dispute, are true and amount to a particular sum agreed upon as due from the defendant to the plaintiff." (Citations omitted.) Dunnett v. Thornton, supra, 73 Conn. 15-16.
In General Petroleum Products, Inc. v. Merchants Trust Co., supra, 115 Conn. 50, the Supreme Court held that "[t]he 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." Id., 56. The court further held that the "account stated can be opened and impeached upon proof of mistake or fraud." Id. The burden of proof is on the debtor to demonstrate that the account stated was the result of mistake or fraud. Id.
Here, the defendant acknowledges that he owes money to the plaintiff. The defendant, however, disputes the amount of money, interest charges and fees that are due the plaintiff. In his affidavit, the defendant avers that the amount transferred over from a prior credit card is incorrect. He further avers that this is the first detailed statement he has seen as to the bills he owes the plaintiff. The affidavit raises questions as to whether the amount of $2,164.44 is the proper amount owed or whether there was a mistake.
After a careful review of the evidence, the court finds that there is no genuine issue of material fact as to liability but that there is a genuine issue of material fact as to the amount of damages. "[W]hen examination of the affidavit and exhibits accompanying the plaintiff's motion for summary judgment discloses the unchallenged existence of unpaid debts, summary judgment can be granted . . . The court may grant a motion for summary judgment on liability only and hold [a] hearing on damages at a later date." (Internal quotation marks omitted.) Salomon Brothers Realty Corp. v. Noll, Superior Court, judicial district of Waterbury, Docket No. CV 01 0166311 (March 26, 2002, West, J.) (foreclosure action); Estate of Baraglia v. Poulos, Superior Court, judicial district of New Britain, Docket No. CV 99 0497776 (September 18, 2000, Kocay, J.) (failure to pay promissory note). Moreover, Practice Book § 17-50 specifically permits a hearing in damages when summary judgment has been granted as to liability only and genuine issues of fact remain as to the amount of damages.
The plaintiff's motion for summary judgment is granted as to liability only. The motion for summary judgment is denied as to the amount of damages which should be addressed as a hearing in damages.