Opinion
CV136019078S
03-12-2019
UNIFUND CORPORATION v. Timothy WAHBA
UNPUBLISHED OPINION
OPINION
KAVANEWSKY, J.
The plaintiff, Unifund Corporation, initiated this collection action against the defendant, Timothy Wahba, for charges against the use of a credit card issued by the plaintiff. The complaint alleges that the defendant used a credit card from Citibank, N.A., accumulating an outstanding balance of $ 44, 060.33. The defendant has not made payments on this account. Citibank, N.A. transferred the account to the plaintiff, which then brought this action.
The parties submitted this action to attorney Robert B. Keyes as fact finder. A trial occurred on September 14, 2018 and the fact finder issued his report on January 3, 2019. In his findings, attorney Keyes found that the defendant was liable on the account for the sum of $ 27, 887.82. On January 17, 2019, the defendant objected to the findings of fact, claiming that the defendant should have been found to have had no liability whatsoever. On January 18, 2019, the plaintiff objected to the findings of fact insofar as the debt had been determined to be in a reduced amount. The court heard oral argument on the objections on February 25, 2019.
Practice Book § 23-58(a) provides: "After review of the finding of facts and hearing on any objections thereto, the judicial authority may take the following action: (1) render judgment in accordance with the finding of facts; (2) reject the finding of facts and remand the case to the fact finder who originally heard the matter for a rehearing on all or part of the finding of facts; (3) reject the finding of facts and remand the matter to another fact finder for rehearing; (4) reject the finding of facts and revoke the reference; (5) remand the case to the fact finder who originally heard the matter for a finding on an issue raised in an objection which was not addressed in the original finding of facts; or (6) take any other action the judicial authority may deem appropriate."
"A reviewing authority may not substitute its findings for those of the trier of the facts." Wilcox Trucking, Inc. v. Mansour Builders, Inc., 20 Conn.App. 420, 423, 567 A.2d 1250 (1989), cert. denied, 214 Conn. 804, 573 A.2d 318 (1990). This applies to the Superior Court reviewing findings of fact. Id. The trial court may reject findings of fact only when they are clearly erroneous. Id., 425. "Once the court [rejects] the finding of facts, its options [are] severely limited. It either [has] to remand the matter to the same or a different fact finder for a rehearing or, in the alternative, it [has] to completely revoke the reference." Id., 424. "Attorney [fact finders] are empowered to hear and decide issues of fact ... The trial court, as the reviewing authority, may render whatever judgment appropriately follows, as a matter of law, from the facts found by the attorney [fact finder]." (Internal quotation marks omitted.) Gardner v. Pilato, 68 Conn.App. 448, 452, 791 A.2d 707, cert. denied, 260 Conn. 908, 795 A.2d 544 (2002). "It is the [fact finder’s] right to accept some, none or all of the evidence presented ... [The fact finder] is free to juxtapose conflicting versions of events and determine which is more credible ... It is the [fact finder’s] exclusive province to weigh the conflicting evidence and to determine the credibility of witnesses." (Internal quotation marks omitted.) Brown v. Hartford, 160 Conn.App. 677, 702, 127 A.3d 278, cert. denied, 320 Conn. 911, 128 A.3d 954 (2015).
As stated previously, both parties objected to the fact finder’s decision, albeit on different grounds. The plaintiff argues the fact finder erroneously determined the amount due despite what it claims was sufficient evidence to substantiate a debt of $ 44, 060.33. The defendant argues that the fact finder improperly concluded he was the account holder and that he actually received the account statements.
The defendant’s first argument cannot be accepted because there was evidence, and reasonable inferences that may have been drawn therefrom, that the defendant used the card even though he did not open the account. "By using the card and accepting its benefits, an individual assents to the underlying terms and conditions which are set forth in the credit card agreement ... Each use of a credit card constitutes a representation by the cardholder of his or her intention to pay for the charges to the account." (Citation omitted.) Capital One Bank (USA), N.A. v. Hooghkirk, Superior Court, judicial district of Middlesex, Docket No. CV-11-6005553-S (January 31, 2013, Aurigemma, J.). As to the defendant’s second argument, there was testimony at trial that the defendant received the statements, which the factfinder found as fact. This is not a clearly erroneous finding the court can overrule.
The plaintiff’s cause of action is for an account stated. A cause of action for an account stated "centers on the obligation to pay a sum certain arising upon an examination by the parties of unsettled claims of indebtedness ... The essential and controlling fact 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, 73 Conn. 1, 15-16, 46 A.158 (1900).
Our Supreme and Appellate Courts have recognized a cause of action for an account stated. See General Petroleum Products, Inc. v. Merchants’ Trust Co., 115 Conn. 50, 56, 160 A. 296 (1932); Credit One, LLC v. Head, 117 Conn.App. 92, 99, 977 A.2d 767 (2009), cert. denied, 294 Conn. 907, 982 A.2d 1080 (2009); Citibank (South Dakota), N.A. v. Manger, 105 Conn.App. 764, 766-67, 939 A.2d 629 (2008). Not every transaction must be documented. Credit One, LLC v. Head, supra, 117 Conn.App. 99. As the plaintiff has noted, our Appellate Court has recognized that there is a prima facie reliability of the amount claimed in the final account statement, when the statement is addressed to the defendant at the same address used by him in the opening transactional documents, and when the defendant has retained the statement for an unreasonable period of time, with no objection thereto. Id.
In the present case, the court has carefully reviewed the trial transcript and the exhibits admitted into evidence. It has also considered the parties’ arguments. Pursuant to Practice Book § 23-58(a)(1), this court affirms the decision of the fact finder. His decision is not clearly erroneous; his decision does not merit a remand for further articulation; it does not warrant rejection. See Miller v. Guimaraes, 78 Conn.App. 760, 766-67, 829 A.2d 422 (2003) ("[a] factual finding is clearly erroneous when it is not supported by any evidence in the record or when there is evidence to support it, but the reviewing court is left with the definite and firm conviction that a mistake has been made" [internal quotation marks omitted]). Although the fact finder could have found that the plaintiff presented sufficient evidence showing that the defendant owed $ 44, 060.33, there was also evidence and reasonable inferences that could have been drawn therefrom allowing the fact finder to reject such amount and to determine that a lesser amount was due. See Brown v. Hartford, supra, 160 Conn.App. 702. While not every transaction must be documented, the final account statement of the lender is prima facie evidence. It is not evidence that is necessarily binding upon the fact finder. In this case, the evidence showed that the defendant had a balance due of $ 27, 887.82 two months before the final statement, $ 0 in the next to last statement, and then finally, $ 44, 060.33 in the final statement. The fact finder was free to, and he did, consider this in determining the final amount due. His decision is not clearly erroneous, and it does not require rejection or a remand for further explanation.
Both the defendant’s and the plaintiff’s objections are overruled, and judgment is entered in accordance with the report of the fact finder.
So ordered.