Opinion
No. CV05 4002020 S
December 21, 2005
MEMORANDUM OF DECISION ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
The plaintiff, National Banking Association, brings this one-count complaint against the individual defendant seeking collection of credit extended in the amount of $4,562.01. The plaintiff by affidavit establishes that an extended credit to the defendant, and the defendant failed to make payments on the balances owed. The plaintiff states that it sent the defendant full and true accounts of the amount she owed as a result of the agreement between them on a monthly basis and that the statements were delivered to and accepted by her without objection. This claim is an "account stated" claim, which is premised on the creditors "rendition of the account so that [the debtor's] retention there for an unreasonable time constitute[s] an account stated which is prima facie evidence of the correctness of the account." General Petroleum Products, Inc. v. Merchants Trust Co., 115 Conn. 50, 56, 160 A.296 (1932).
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 which upon 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." Dunnett v. Thornton, 73 Conn. 1, 15-16, 46 A.158 (1900).
A statutory cause of action for account stated existed pursuant to Connecticut General Statutes § 52-113, was repealed by Public Act No. 78-380, 1978.
The extinction of the statutory claim does not eliminate the common law claim for account stated. "Although the legislature may eliminate a common law right by statute, the presumption that the legislature does not have such a purpose can be overcome only if the legislative intent is clearly and plainly expressed." (Internal quotation marks omitted.) Alvarez v. New Haven Register, Inc., 249 Conn. 709, 715, 735 A.2d 306 (1999). There is nothing expressed in Public Act No. 78-380 which would indicated any legislative intent with respect to the common law cause of action for account stated which existed at least as early as 1900, see Dunnett v. Thornton, supra.
The continued existence of the common law remedy of accounts stated is evidence by the reference to it and statute of limitations statute § 52-576. It also is referenced in Connecticut court cases. See; Post Road Iron Works, Inc. v. Lexington Development Group, Inc., 54 Conn.App. 534, 536, 736 A.2d 923 (1999); Moses v. Manchester Materials, LLC, Superior Court, judicial district of Hartford, Docket No. CV 02 0821252 (April 24, 2003, Beach, J.); Checkers International, Inc. v. Southwest Community Health Center, Inc., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 00 0375092 (June 13, 2001, Rodriguez, J.).
The plaintiff also asserts that as a national association extending open-ended credit agreements is governed by the federal Truth In Lending Act (FTILA), 15 U.S.C. §§ 1601- 1667, and the federal Fair Credit Billing Act (FCBA), which is part of the FTILA found at 15 U.S.C. § 1666-1666j. The credit card agreement submitted by Citibank clearly states that the procedures for disputing account statements are controlled by the FCBA and Connecticut has adopted these provisions pursuant to Connecticut General Statute § 36a-678.
15 U.S.C. § 1637 specifically outlines the disclosure requirements applicable to creditors that provide open ended credit plans and includes such items as the conditions in which finance charges are applied, methods for determining the applicable balance to which finance charges will be applied, methods for determining the amount of finance charges and debtors' rights in contesting billing errors as described in 15 U.S.C. § 1666. Citibank claims that it adhered to these provisions and offers as evidence the standard credit agreement it entered into with the defendant as well as the affidavit of a manager with respect to Citibank's credit accounts. 15 U.S.C. § 1637 also provides for the creditor to transmit a statement to the obligor at the end of every billing cycle in which there is an outstanding or a finance charge levied. Citibank claims it met these requirements and as evidence of such, submits copies of the monthly statements which it sent to the defendant.
Citibank in reliance on 15 U.S.C. § 1666 states that the defendants failure to provide it with written notice of any objections she had to the statements it provided to her within sixty days of the date she received them precludes her from disputing the amount due.
The defendant has issued a general denial as an answer with no special defenses.
"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." (Internal quotation marks omitted.) Connecticut National Bank v. Great Neck Development Co., 215 Conn. 143, 148, 574 A.2d 1298 (1990). When a party moves 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 (1995).
The court finds that the plaintiff has through its affidavit established the defendant's obligation pursuant to a common-law account stated theory.
Summary judgment enters for the plaintiff.