Opinion
No. DBD CV05-4004580
January 4, 2007
MEMORANDUM OF DECISION
Plaintiff commenced this action by filing a complaint seeking the collection of an account receivable acquired by it from a prior (original) creditor. The complaint contends that the debt owed by the defendant is $8,304.67 plus interest. The defendant, acting pro se, denies liability for the debt and has filed various special defenses. He has also filed a two-count counterclaim alleging, generally, misrepresentations by the original creditor, as well as fraud and misrepresentation on the part of the plaintiff. The matter was claimed to the trial list on January 5, 2006. The parties appeared before the court on November 14, 2006, at which time they presented testimony and documentary evidence.
The plaintiff testified through John Rich, its vice-president, that it had acquired the receivable through a series of assignments and purchases commencing on June 25, 2002 with the original creditor, Providian Bank, and then proceeding through CompuCredit Corporation, Jefferson Capital Systems, LLC, Collins Financial Services, Inc. and finally on February 1, 2005 to Credit Management Corporation. He further testified that Credit Management Corporation had made demand upon the defendant for payment of account #5182850000119013 in the principal amount of $8,304.67, but that the defendant had refused to make payment thereof.
The original complaint says June 25, 2005 but it is clearly a typographical error given the timeline of the rest of the complaint and the evidence presented at trial. See Plaintiff's Exhibit 2.
The transfer of the account receivable is evidenced through Plaintiff's Exhibits 2-5.
The defendant presented testimony and evidence relative to his claim that the debt originally due Providian Bank, which is the basis of the plaintiff's claim, was paid off as part of a refinance of real estate owned by the defendant and his wife on December 5, 2002. He further stated that he had never received a notice about a debt due on that account following the closing until contacted by the plaintiff in early 2005. Specifically, the defendant presented evidence that property owned by him and his wife at 227 13th St., Surf City, New Jersey was refinanced through Long Beach Mortgage Company. (Defendant's Exhibits A and B.) Defendant testified that as part of that refinance, Providian Bank had agreed to accept $3,781.00 as payment in full on the account in order to enable the loan to close. A copy of the check issued through the title company which handled the closing was admitted into evidence and established a payment to Providian Bank on the date of the closing and in that amount. (Defendant's Exhibit C.) A settlement statement was also admitted into evidence which gave a breakdown of the amount of the expenses paid out of the refinance proceeds and the names of the payees. (Defendant's Exhibit A.) Approximately 35 debts to various creditors were paid out of those proceeds, one of them being Providian Bank with the settlement statement showing a payment to it in the amount of $3,781.00. There was, however, nothing on the statement which identified the account number to which the payment was applicable. Notably, the settlement statement showed several individual creditors received multiple payments implying that the defendant had multiple accounts with some creditors. Providian Bank was listed only once on the settlement statement. A review of that statement reflects payments consistent with those made relative to a mortgage refinance.
The defendant also testified that as of the time of the closing, negotiations had taken place with Providian Bank through either the lender or the title company which led to the agreement of Providian to accept the amount of $3,781.00 as payment in full. Unfortunately, no payoff letter or other documentary evidence of this agreement exists. There was evidence that at the time demand was made upon the defendant by the plaintiff, he immediately contacted the title company that handled the loan and requested a copy of the check sent to Providian Bank as a "final payoff." (Defendant's Exhibit B.)
After reviewing the documentary evidence and considering the testimony presented at trial, the court finds the testimony of both parties to be credible. The court further finds that the plaintiff has validly acquired all of the accounts receivable that were once held by the original creditor, Providian Bank, and that the records held by the plaintiff indicate an account balance due from the defendant of $8,304.67. However, the court also finds that the evidence presented by the defendant is consistent with his claim that he has paid the debt in full. The defendant has stated such was the situation in this case. Based on all of the evidence presented by both parties, the court finds that as to the plaintiff's complaint, it has failed to establish by a preponderance of the evidence that there exists in fact an outstanding debt in the amount claimed. Moreover, the defendant has met his burden of proof in establishing his special defense of accord and satisfaction. Despite the lack of documentary evidence of an agreement with Providian Bank to accept a lesser amount as payment in full on the account, the court finds that the direct and circumstantial evidence presented, along with the reasonable inferences made therefrom, are sufficient to establish that the account was paid by the defendant, and accepted as payment in full, as part of the mortgage refinance done on December 5, 2002. Rocque v. Light Sources, Inc., 275 Conn. 420, 439, 881 A.2d 230 (2005).
As to the first count of defendant's counterclaims, the court finds that he has failed to establish by a preponderance of the evidence the claims set forth therein. See e.g., Franklin Credit Management Corp., v. Nicholas, 73 Conn.App. 830, 837 n. 7, 812 A.2d 51 (2002), cert. denied, 262 Conn. 937, 815 A.2d 136, (2003). The first count specifically addresses misrepresentations by the original creditor, Providian Bank. However, Providian is not a party to this action. Moreover, defendant failed to produce any evidence of the substantial economic or financial hardship he alleges to have suffered.
As to the second count of defendant's counterclaims, the court finds that he has failed to establish by clear and convincing evidence his claim of fraudulent or intentional misrepresentations on the part of the plaintiff. See Dockter v. Slowik, 91 Conn.App. 448, 453-54, 881 A.2d 479, cert. denied, 276 Conn. 919, 888 A.2d 87 (2005); see also Kilduff v. Adams, Inc., 219 Conn. 314, 330, 593 A.2d 478 (1991).
Accordingly, judgment may enter in favor of the defendant on the plaintiff's complaint. Judgment may enter in favor of the plaintiff on both counts of the defendant's counterclaims. No costs are awarded to either party.