Opinion
CV106014045S.
11-09-2012
CITIBANK (SOUTH DAKOTA) N.A. v. Carol ASHBROOK.
UNPUBLISHED OPINION
SYBIL V. RICHARDS, Judge.
The plaintiff, Citibank (South Dakota) N.A., filed a complaint against the defendant, Carol Ashbrook, seeking to collect a credit card balance due in the amount of $33, 917.14. The plaintiff alleges the defendant was extended credit under a credit installment agreement, defaulted on his credit account and the plaintiff " rendered to Defendant monthly, full and true accounts of the indebtedness owing by the defendant, " " resulting in an accounted stated" theory for the amount due. The plaintiff filed a motion for summary judgment on the ground that no genuine issue of material facts exists and the plaintiff is entitled to judgment as a matter of law. In support of its motion, the plaintiff submitted the following in its memorandum of law: (1) the sworn affidavit from a competent witness and custodian of records for the plaintiff; (2) a copy of the customer agreement; and (3) monthly credit account statements from October 14, 2006 to December 14, 2009 were sent to the defendant's address that show an outstanding principal balance of $33, 917.14 on the credit card account ending in " 0008." The defendant filed a memorandum in opposition to the motion for summary judgment.
" 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 moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law." (Internal quotation marks omitted.) Brooks v. Sweeney, 299 Conn. 196, 210, 9 A.3d 347 (2010). " In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. 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 ..." (Internal quotation marks omitted.) Connecticut Ins. Guaranty Assn. v. Drown, 134 Conn.App. 140, 146-47, 37 A.3d 820 (2012). " The party opposing a motion for summary judgment must present evidence that demonstrates the existence of some disputed factual issue ... The movant has the burden of showing the nonexistence of such issues but the evidence thus presented, if otherwise sufficient, is not rebutted by the bald statement that an issue of fact does exist ... To oppose a motion for summary judgment successfully, the nonmovant must recite specific facts ... which contradict those stated in the movant's affidavits and documents ... The opposing party to a motion for summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue ... The existence of the genuine issue of material fact must be demonstrated by counter affidavits and concrete evidence." (Emphasis in original.) Gianetti v. Health Net of Connecticut, Inc., 116 Conn.App. 459, 464-65, 976 A.2d 23 (2009). When a party moves for summary judgment " and there [are] no contradictory affidavits, the court properly decide[s] the motion by looking only to the sufficiency of the [movant's] affidavits and other proof." Heyman Associates No. 1 v. Ins. Co. of Pennsylvania, 231 Conn. 756, 795, 653 A.2d 122 (1995). " [A] party opposing a summary judgment motion must provide 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 substantive 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." (Internal quotation marks omitted.) Karakowsky v. Farady, 118 Conn.App. 480, 485, 984 A.2d 776 (2009), quoting Tuccio Development, Inc. v. Neumann, 111 Conn.App. 588, 594, 960 A.2d 1071 (2008).
The plaintiff argues that the defendant must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. Additionally, the plaintiff contends that each use of the credit card by the defendant constitutes a representation that the defendant agrees to pay the credit card debt according to its terms. The plaintiff further argues that pursuant to the account stated theory, it is entitled to judgment as a matter of law because where the defendant receives monthly statements and does not object to the charges, the defendant is liable for the balance due on the account.
" The theory of account stated is described as follows: [t]he delivery by the [creditor] to the [debtor] of each statement of the latter's account, with the [documentation] upon which the charges against [the debtor's account] were based, [is] a rendition of the account so that retention thereof for an unreasonable time constitute[s] an account stated which is prima facie evidence of the correctness of the account." Citibank (South Dakota), N.A. v. Evvard, 128 Conn.App. 843, 844 n. 2, 18 A.2d 682 (2011), citing General Petroleum Products, Inc. v. Merchants Trust Co., 115 Conn. 50, 56, 160 A. 296 (1932). A plaintiff satisfies its burden of proof for account stated " by showing it sent [the] defendant monthly statements evidencing [a] balance due and [that the] defendant did not dispute [the] balance listed on [the] statements prior to commencement of action." Credit One, LLC v. Head, 117 Conn.App. 92, 100, 977 A.2d 767, cert. denied, 294 Conn. 907, 982 A.2d 1080 (2009).
In the present case, the defendant admitted in her answer to the plaintiff's complaint that she resided at the address where the plaintiff mailed her billing statements from October 2006 to December 2009. In her amended answer, however, the defendant denied failing to make payment for the credit extended or likewise denied that that the total balance due is in the amount of $33, 917.14. Again, while the movant has the burden of showing the nonexistence of any material fact, " the evidence thus presented, if otherwise sufficient, is not rebutted by the bald statement that an issue of fact does exist ... To oppose a motion for summary judgment successfully, the nonmovant must recite specific facts ... which contradict those stated in the movant's affidavits and documents ..." Gianetti v. Health Net of Connecticut, Inc., supra, 116 Conn.App. at 465. Thus, the court finds that the plaintiff's proof is sufficient under account stated. Simply put, the plaintiff sent the defendant monthly statements to the defendant's address, said statements showed the charges against the defendant's account due and owing. In addition, the defendant failed to provide any evidence that it disputed the balance on the statements prior to the plaintiff's commencement of this action. See Credit One, LLC v. Head, supra, 117 Conn.App. at 99-100 (plaintiff satisfied its burden for account stated by showing the defendant six monthly account statements evidencing the balance due and the defendant did not dispute the balance listed on the statements prior to the commencement of the action).
Although the defendant filed a memorandum in opposition, making a series of allegations of alleged insufficiencies with the plaintiff's action, she failed to present the court with any proof indicating that she disputed such balances or any evidence that genuine issues of fact remain. Instead, the defendant offered nothing but bald statements with respect to the plaintiff's complaint without presenting the court with any contradictory affidavits or other evidence and simply filed said memorandum that contained only mere assertions. See Citibank (South Dakota), N.A. v. Viegas, Superior Court, judicial district of New Haven, Docket No. CV 10 6011782 (October 6, 2011, Woods, J.) (summary judgment granted for a claim for default on a credit installment agreement where facts disclosed that the plaintiff granted the defendant use of a credit card, sent monthly billing statements accounting for the charges to the defendant's home address, and the defendant failed to make payments). Thus the court looks to only the sufficiency of the plaintiff's affidavit and other proof in reaching its decision that both satisfied the account stated theory and that plaintiff proved that no genuine issues of fact remain.
Based upon the foregoing, the court grants the plaintiff's motion for summary judgment.