Opinion
HHDCV156061987S
07-13-2018
PORTFOLIO RECOVERY ASSOCIATES, LLC v. Albert FARRAH
UNPUBLISHED OPINION
OPINION
ROBERT B. SHAPIRO, JUDGE OF THE SUPERIOR COURT
On July 9, 2018, in this credit card debt matter, the plaintiff’s motion for summary judgment (# 114) was scheduled for argument before the court at the Short Calendar. The plaintiff was present, but the defendant was not present. The plaintiff requested the court to consider the motion based on the papers presented. After consideration of the parties’ written submissions, the court issues this decision.
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 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 [or her] to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his [or her] 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 ... As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ... 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.) State Farm Fire & Casualty Co. v. Tully, 322 Conn. 566, 573, 142 A.3d 1079 (2016).
"In ruling on a motion for summary judgment, the court’s function is not to decide issues of material fact ... but rather to determine whether any such issues exist ... [I]t [is] incumbent [on] the party opposing summary judgment to establish a factual predicate from which it can be determined, as a matter of law, that a genuine issue of material fact exists ... The presence ... of an alleged adverse claim is not sufficient to defeat a motion for summary judgment." (Citations omitted; internal quotation marks omitted.) The Episcopal Church in the Diocese of Connecticut v. Gauss, 302 Conn. 408, 421-22, 28 A.3d 302 (2011).
In support of its motion, the plaintiff presented a memorandum of law, with an affidavit of debt and exhibits. The defendant filed an opposition to the motion (# 121), but did not file an affidavit or exhibits.
According to the affidavit of debt (# 116), the plaintiff purchased and is the assignee of the defendant’s credit card account with the account seller, G.E. Money Bank, F.SB., and there remains an unpaid balance due and payable in the amount of $6,602.60. Attached to the affidavit are copies of bills, which the affiant avers are true and correct copies of the originals. Thus, these documents were authenticated in the affidavit.
In his opposition, the defendant asserts that the plaintiff fails to support its motion with admissible evidence, and the affidavit is hearsay since it relies on business records. The defendant also asserts that the plaintiff fails to show that it is the owner of the debt. As explained by the Appellate Court, "The defendant provides no authority, and we know of none, that precludes affiants from obtaining personal knowledge of underlying transactions by review of business records. Under General Statutes § 52-180, to be competent to testify, the affiant need only have personal knowledge of the relevant business records." (Footnote omitted; internal quotation marks omitted.) American Home Mortg. Servicing, Inc. v. Reilly, 157 Conn.App. 127, 136, 117 A.3d 500, cert. denied, 317 Conn. 915, 117 A.3d 854 (2015).
"The defendant’s assertions challenging the amount due ... unsupported by any evidence, are therefore mere assertions of fact and are insufficient to establish the existence of a material fact under the present circumstances." Credit One, LLC v. Head, 117 Conn.App. 92, 101, 977 A.2d 767, cert. denied, 294 Conn. 907, 982 A.2d 1080 (2009). The affidavit specifically states that the plaintiff is the owner of the debt. The defendant has presented no evidence in opposition.
The defendant also asserts that the plaintiff was required to produce the contract on which its claim is based. No authority is cited for this assertion. The court is "not required to review issues that have been improperly presented to this court through an inadequate brief ... Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly ... Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned." (Internal quotation marks omitted.) MacDermid, Inc. v. Leonetti, 328 Conn. 726, 748, 183 A.3d 611 (2018).
Also, the defendant asserts that the plaintiff has not shown that he made or authorized the use of a credit card for charges claimed. The affidavit includes copies of a number of billing statements addressed to the defendant. The billing address was shown to be the same as that at which service of process was made. See return of service (# 100.30). "The 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." (Internal quotation marks omitted.) Citibank (S. Dakota), N.A. v. Manger, 105 Conn.App. 764, 766 n.2, 939 A.2d 629 (2008). In addition, the billing statement for the closing date of June 3, 2010 shows a payment by the defendant in the amount of $135.00. See affidavit of debt.
For the reasons stated above, since the plaintiff’s evidence shows that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law, the plaintiff’s motion for summary judgment is granted. Judgment may enter for the plaintiff and against the defendant in the amount of $6,602.60.