Opinion
No. CV-09-6000823-S
July 12, 2010
RULING ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
I. INTRODUCTION
The plaintiff, Citi Bank (South Dakota) N.A., commenced this action on November 15, 2009, with service upon the defendant, Stephen Filip. In its complaint, filed on November 20, 2009, the plaintiff alleges that the defendant was extended credit under a credit installment agreement. The plaintiff further alleges that the defendant failed to make payments for the credit extended and the total balance due to the plaintiff is $39,008.44. Additionally, the plaintiff alleges that it rendered to the defendant monthly, full and true accounts of the indebtedness owed by the defendant as a result of the credit extended, which resulted in an account stated for $39,008.44. The defendant filed his answer on February 22, 2010, denying the plaintiff's allegations that the defendant owed the amount alleged in the complaint and failed to make payments, and denying the allegation that the defendant was provided with monthly account statements resulting in an account stated for the amount alleged in the complaint. On May 5, 2010, the plaintiff filed its motion for summary judgment. The motion was accompanied by a memorandum in support of the motion, the affidavit of Leola Phoenix, an authorized agent of the defendant, an affirmation in support of the motion signed by attorney Julie Solomon and copies of monthly credit card account statements from April 2007, to April 2009, addressed to the defendant. The defendant filed neither a memorandum in opposition to the motion for summary judgment nor any counter affidavit.
II. SUMMARY JUDGMENT STANDARD
"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." (Internal quotation marks omitted.) Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007). "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 . . . 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 . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006). When a party moves for summary judgment "and there [are] no contradictory affidavits, the court properly [decides] the motion by looking only to the sufficiency of the [movant's] affidavits and other proof." Heyman Associates No. 1 v. Insurance Co. of Pennsylvania, 231 Conn. 756, 795, 653 A.2d 122 (1995).
III. DISCUSSION
The plaintiff moves for summary judgment on an account stated theory. In its memorandum of law in support of the motion for summary judgment, the plaintiff argues that delivery of monthly credit account statements to a debtor is a rendition of the account and if a debtor retains those statements for a period of time without objection an account stated is constituted and is prima facie evidence of the correctness of the account. The plaintiff states that the defendant obtained credit from the plaintiff and failed to pay for the credit. The plaintiff further notes that it has substantiated the allegations in its complaint, that it provided account statements to the defendant and that the defendant did not dispute the statements within a reasonable time period. The plaintiff argues that the defendant offers no evidence to dispute the existence of this credit obligation but offers mere general denials and, accordingly, there is no genuine issue of material fact and the motion for summary judgment should be granted.
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"). 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 a resultant balance agreed upon as due . . . It is not essential to the support of this obligation that an actual examination by the parties of the items of indebtedness should be proved; it is sufficient that the conduct of the parties is equivalent to such examination and to an agreement upon a specific sum and a promise to pay that sum . . . 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 Court, in General Petroleum Products, Inc. v. Merchants Trust Co., 115 Conn. 50, 56, 160 A. 296 (1932), articulated the elements of a cause of action based on an account stated theory, stating: "The delivery by the bank to the [debtor] of each statement of the latter's account . . . 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 [debtor's] silence as to the correctness of the account rendered puts upon it the burden of providing that the account, as stated, was the result of such fraud or mistake." (Emphasis added.).
More recently, a number of Superior Court cases have addressed motions similar to the plaintiff's relying on the account stated theory. The plaintiff attempts to find support for its motion for summary judgment in some of those cases, including 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). In Stewart, the plaintiff similarly moved for summary judgment on its claim grounded in an account stated theory of recovery. Id. Attached to its motion for summary judgment the plaintiff in Stewart included the contract between the parties, an affidavit of its authorized agent and the records of the defendant's credit card account with the plaintiff, including monthly statement mailings and payments received that demonstrated the amount of the alleged debt owed by the defendant. Id. The court found that the plaintiff "presented the entire record of its billings and payments received," and that the defendant was "obliged to concede that she had no evidence whatsoever to place in dispute either her liability to the plaintiff under the terms of her credit card agreement nor the amount claimed by way of payment due." (Emphasis added.) Id., 388. The court concluded that because the account stated cause of action is recognized in Connecticut, because the plaintiff put forth admissible evidence in support of that cause of action, and because there was no genuine issue of material fact in dispute, the plaintiff was entitled to summary judgment. Id.
The plaintiff also points to Citibank v. Gemske, Superior Court, judicial district of Middlesex, Docket No. CV 05 4002020 (December 21, 2005, McWeeny, J.) ( 40 Conn. L. Rptr. 489), in which the court granted the plaintiff creditor's motion for summary judgment on its account stated claim. The plaintiff offered as evidence, inter alia, the credit card agreement it entered into with the defendant and copies of the monthly statements it sent to the defendant. Id. The defendant issued a general denial as an answer, but the plaintiff argued that the defendant's failure to provide the plaintiff with any objections she had to the statements provided by the plaintiff preclude her from disputing the amount due. Id. The court determined that the plaintiff established the defendant's obligation under an account stated theory and granted the motion for summary judgment in the plaintiff's favor. Id., 490.
The plaintiff argues that this case is no different than Stewart or Gemske. To determine if that is correct the court must consider the specific proof offered by the plaintiff in this case. Not all account stated cases are the same, and whether the plaintiff is entitled to summary judgment turns on the quality of the evidence submitted by the plaintiff in support of its motion.
Because the defendant in the present case failed to submit a contradictory affidavit, in determining whether to grant the motion for summary judgment the court need only look to the sufficiency of plaintiff's affidavit and proof.
For example, in Palisades Collection, LLC v. Wright, Superior Court, judicial district of Fairfield at Bridgeport, DocketNo. CV 08 5015544 (January 27, 2009, Bellis, J.), while recognizing the account stated cause of action, the court denied the plaintiff's motion for summary judgment because the plaintiff "failed to put forth admissible evidence in support of that cause of action." In its memorandum of law in support of the motion for summary judgment, the plaintiff argued that the facts gave rise to an account stated cause of action, that the defendant was provided with monthly credit card statements and that the defendant did not object to the statements. As in the present case, in Palisades the defendant filed neither a memorandum in opposition to the motion for summary judgment nor any counter affidavit. Though the plaintiff argued that the defendant was provided with monthly billing statements, the plaintiff failed to submit copies of any such statements to the court nor was any other documentation submitted to support its argument. The court found, accordingly, that the plaintiff's arguments were not supported by any documentation. The court held that "[t]he plaintiff's non-evidentiary assertions of fact are insufficient to show that there is no genuine issue of material fact."
In CACH, LLC v. Stupack, Superior Court, judicial district of New Britain, Docket No. CV 08 5008144 (May 24, 2010, Swienton, J.) ( 49 Conn. L. Rptr. 403), the plaintiff debt collector commenced action against the defendant debtor, filing a two-count complaint. In count two of the complaint, the plaintiff sought to hold the defendant liable under an account stated theory. Id. The account was allegedly opened in July, 2003, in the name of the plaintiff, and charged off in August, 2006. Id. The only evidence offered by the plaintiff to establish that the defendant entered into the alleged credit card agreement was eight credit card statements which indicated the defendant's name and address on them. Id. The defendant testified that he never received the statements in the mail and denied that the account was his, claiming that the first he learned of the account was when he was served with the complaint. Id., 404. The court ultimately concluded that the "plaintiff needs to produce more than just eight monthly statements which the defendant denies receiving in order to establish the elements of account stated." Id., 405. Accordingly, the court entered judgment for the defendant. Id.
In the present case, the plaintiff, unlike the plaintiff in Palisades, has provided the court with some documentation of the alleged debt. The plaintiff, however, has provided insufficient evidence to prevail on its motion for summary judgment. In Stewart, the court determined that the plaintiff "presented the entire record of its billings and payments received." Citibank (South Dakota) N.A. v. Stewart, supra, 40 Conn. L. Rptr. 338. In Gemske, the court noted that plaintiff creditor claimed to have met its obligation to transmit to the defendant debtor an account statement "at the end of every billing cycle in which there is an outstanding [balance] or a finance charge levied." Citibank v. Gemske, supra, 40 Conn. L. Rptr. 489. The plaintiff claimed "it met these requirements and as evidence of such, submits copies of the monthly statements which it sent to the defendant." Id. This language suggests that like the plaintiff in Stewart, the plaintiff in Gemske submitted to the court copies of all monthly statements that were sent to the defendant.
Similarly, in several Superior Court cases, the plaintiff seeking summary judgment on an account stated theory has supplied the court with copies of each account statement provided to the defendant during the entire time period that the alleged account was open. In Citibank (South Dakota) N A. v. Babuscio, Superior Court, judicial district of New Haven, Docket No. CV 04 4001487 (December 20, 2005, Devlin, J.), the court entered summary judgment for the plaintiff on an account stated cause of action against a defendant debtor. Attached to its affidavit in support of the motion, the plaintiff submitted "copies of each monthly statement sent to the defendant from [the] opening of the account in August 2000 to August 23, 2005," the approximate time the account was charged off prior to commencement of the action. Similarly, in Citibank (South Dakota) NA. v. Todd, Superior Court, judicial district of New Haven, Docket No. CV 04 4004898 (December 21, 2005, Devlin, J.), the plaintiff's motion for summary judgment against a defendant credit card debtor on an accounted stated theory was granted. In support of the motion, the plaintiff attached to its affidavit "copies of each monthly statement sent to the defendant from [the] opening of the account in March 1998 to January 7, 2005," the approximate time the account was charged off prior to commencement of the action. See also, Citibank (South Dakota) N.A. v. Kilberg, Superior Court, judicial district of New Haven, Docket No. CV 04 0490701 (December 21, 2005, Devlin, J.) ("Attached to the affidavit [in support of the motion for summary judgment] are copies of each monthly statement sent to the defendant from [the] opening of the account in January 2002 to April 13, 2005," the approximate time the account was charged off); Citibank (South Dakota) N.A. v. Forcinelli, Superior Court, judicial district of New Haven, Docket No. CV 05 4004885 (December 21, 2005, Devlin, J.) ("Attached to the affidavit are copies of each monthly statement sent to the defendant from opening of the account in March 2003 to October 20, 2004," the approximate time the account was charged off).
In Connecticut, plaintiff debt collectors or financial institutions seeking to prevail on an account stated theory rely on General Petroleum. The Supreme Court, in articulating the elements of an account stated cause of action, stated that delivery by a creditor to a debtor of "each statement of the latter's account," and retention of those statements by the debtor without disputing any of the statements within a reasonable time, constituted "prima facie evidence of the correctness of the account." (Emphasis added.) General Petroleum Products, Inc. v. Merchants Trust Co., supra, 115 Conn. 56. While there is no explicit authority requiring a plaintiff seeking summary judgment in an account stated action to submit copies of each monthly account statement, the weight of the above referenced cases seem to make strongly that implication.
The plaintiff in the present case has not provided the court with copies of each monthly account statement. The plaintiff has only provided monthly account statements stretching from April, 2007, to April, 2009, statements which it claims to have previously provided to the defendant. The alleged credit account, however, was presumably in existence for some time prior to April, 2007, as that earliest submitted account statement shows that there was a rather significant previous account balance in the amount of $36,411.78. While the plaintiff may allege that it provided the defendant with each monthly account statement, it has failed to submit evidence establishing that allegation. Though the copies of monthly statements submitted by the plaintiff would establish some of the alleged debt, the lion's share of the alleged debt is undocumented.
In its memorandum in support of the motion, the plaintiff also argues that the defendant was "provided with an underlying credit agreement which was effective upon use of the account." The defendant further claims that "[i]n accordance with the terms and conditions of the agreement, the defendant was provided with and sent monthly statements . . . Based on the monthly billings sent in accordance with the credit agreement, an account stated was created between the parties." The existence of the alleged credit agreement between the plaintiff and the defendant, however, is unsupported by documentation submitted by the plaintiff. In numerous Superior Court cases in which the court has entered summary judgment in the plaintiff's favor on an account stated theory, such as Stewart and Gemske, the plaintiff provided the court with documentation of the underlying credit agreement. See, Citibank (South Dakota) N.A. v. Strumpf, Superior Court, judicial district of Litchfield, Docket No. CV 06 4004215 (September 13, 2006, Pickard, J.) ("The credit card agreement between the parties provides . . ."); Citibank (South Dakota) N.A. v. Manger, Superior Court, judicial district of Danbury, DocketNo. CV 05 4001358 (May 25, 2006, Schuman, J.) ("The defendant signed a credit card acceptance certificate . . . [T]he contract clearly provides . . . Citibank v. Morgan, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV 054001516 (February 27, 2006, Ronan, J.T.R.) ( 40 Conn. L. Rptr. 801) ("In support of its motion for summary judgment, the plaintiff submitted . . . a copy of a card agreement and a change in terms").
Unlike in above-referenced cases, the plaintiff in the present case did not annex to its affidavit a copy of the credit card agreement between the plaintiff and the defendant. While submission of such an agreement may not be necessary to prevail in an account stated action, in this case, where the plaintiff has failed to submit copies of account statements prior to April 2007, where the account in question already had a balance in the amount of $36,411.78 prior to April 2007, and where the defendant has denied the amount of the debt allegedly owed and the existence of an account stated, the plaintiff's failure to submit proof of the underlying credit agreement undermines the sufficiency of the plaintiff's proof in seeking summary judgment.
IV. CONCLUSION
For the foregoing reasons, the court finds that the proof offered by the plaintiff is insufficient to support summary judgment in the plaintiff's favor. Accordingly, the plaintiff's motion for summary judgment is denied.