Opinion
No. CV 10-6013021-S
November 15, 2011
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (#105)
FACTS
This is a debt collection action. On July 20, 2010, the plaintiff, U.S. Equities Corp., filed a complaint alleging, in the first count, breach of a credit card agreement, and, in the second count, account stated. Specifically, the plaintiff alleges that the defendant, Lori Marrone, through the use of a credit card, became indebted to an entity known as "Chase" in the amount of $6,278.73 plus interest. The plaintiff further alleges that, by way of assignment, it is now the owner of the defendant's account and debt and the defendant has refused to pay the amount owed. The plaintiff seeks damages, attorneys fees and costs.
The plaintiff also alleges in a third count that it has a right to attorneys fees as a consequence of the breach. This count, however, is better characterized as a claim for relief.
The defendant filed an answer on October 18, 2010, denying the material allegations of the complaint. On April 25, 2011, the plaintiff moved for summary judgment on the ground that no genuine issues exist as to whether the defendant owes the plaintiff $6,278.73 plus interest and attorneys fees. In support of its motion, the plaintiff filed a memorandum of law, affidavits and various documentary exhibits, including copies of the pertinent assignments, bank statements and the credit card agreement between the defendant and Chase. The defendant subsequently filed an objection, and the plaintiff filed a reply.
DISCUSSION
"In any action, except administrative appeals . . . any party may move for a summary judgment at any time . . ." Practice Book § 17-44. "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 material facts, which, under applicable principles of substantive law, entitle him to judgment as a matter of law . . . Because the burden of proof is on the movant, the trial court must view the evidence in the light most favorable to the nonmoving party . . . 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 . . . [O]nce the moving party has met its burden [of production] . . . the opposing party [to survive summary judgment] must present evidence that demonstrates the existence of some disputed factual issue." (Citations omitted; internal quotation marks omitted.) Maltas v. Maltas, 298 Conn. 354, 365-66, 2 A.3d 902 (2010).
The plaintiff argues that it has carried its summary judgment burden by demonstrating that (1) pursuant to a credit card agreement, the defendant owed a debt to Chase; (2) the defendant never disputed this debt despite receiving monthly statements from Chase regarding her account; and (3) the plaintiff is the valid assignee of the account and debt in question. Although the defendant concedes that she owes a debt to Chase, she disputes the amount owed and, in addition, she claims that the plaintiff has not established the absence of any genuine issue as to all material facts and therefore the plaintiff is not entitled to summary judgment.
For the plaintiff to prevail on its causes of action, namely, that the defendant is obligated to pay a debt by virtue of a credit card agreement and an account stated, the plaintiff must demonstrate that it is the valid assignee of the account and debt in question. "It is a well established principle of contract law that assignment of one's rights under a contract results in [s]uccession by an assignee to exclusive ownership of all or part of the assignor's rights respecting the subject matter of the assignment, and a corresponding extinguishment of those rights in the assignor." (Internal quotation marks omitted.) Bouchard v. People's Bank, 219 Conn. 465, 473, 594 A.2d 1 (1991). In other words, an "assignee steps in [the] shoes of [the] assignor and obtains all rights and obligations of [the] assignor . . ." (Internal quotation marks omitted.) Daimler Chrysler Services North America, LLC v. Commissioner, 274 Conn. 196, 212, 875 A.2d 28 (2005). "The assignee's burden of proving the existence of the assignment is met by evidence that is satisfactory in character to protect the defendant from another action by the alleged assignor, and which shows that there was a full and complete assignment of the claim from an assignor who was the real party in interest with respect to the claim." 6A C.J.S. 541, Assignments § 147 (2004).
"The theory of account stated is described as follows: 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, N.A. v. Eward, 128 Conn.App. 843, 844 n. 2, 18 A.2d 682 (2011).
The plaintiff's evidence purporting to establish "a complete chain of title" as to the defendant's debt is insufficient to meet its burden of production. The plaintiff relies on the sworn affidavit of Olga Moises, an employee of the plaintiff, who testifies that Chase assigned its title and interest in the defendant's account to an intermediary, Turtle Creek Assets, Ltd., which then assigned its title and interest to the plaintiff. Moises, however, does not aver in her affidavit that she has personal knowledge as to any of the facts attested. "[Practice Book § 17-46] sets forth three requirements to permit the consideration of material contained in affidavits submitted in a summary judgment proceeding. The material must: (1) be based on `personal knowledge;' (2) constitute facts that would be admissible at trial; and (3) affirmatively show that the affiant is competent to testify to the matters stated in the affidavit." Barrett v. Danbury Hospital, 232 Conn. 242, 251, 654 A.2d 748 (1995). Moreover, "[i]t is especially appropriate to hold an affidavit submitted by a moving party to a stringent standard. Because the burden is on the movant, the evidence must be viewed in the light most favorable to the nonmovant and he is given the benefit of all favorable inferences that can be drawn." Evans Products v. Clinton Building Supply, Inc., 174 Conn. 512, 516, 391 A.2d 157 (1978).
Practice Book § 17-46 provides; "Supporting and opposing affidavits shall be made on personal knowledge, shall set forth facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto."
Even if the court ignores the personal knowledge requirement and considers the Moises affidavit, the plaintiff still could not demonstrate that it was properly assigned the defendant's account. Moises testified that Turtle Creek "represented" that "it had clear right, title and interest" in the accounts that the plaintiff agreed to purchase. For the purpose of proving that Turtle Creek in fact had proper title to the defendant's account, however, this representation is inadmissible hearsay. See Conn. Code Evid. §§ 8-1, 8-2. Moises also testified that the plaintiff, at the time of sale, received the defendant's personal information as well as data regarding her debt, including the amount of indebtedness as well as her last payment date. Even so, the plaintiff does not offer proof establishing that Chase ever assigned the defendant's account to Turtle Creek. Although the plaintiff submits a bill of sale memorializing an agreement for Turtle Creek to purchase from Chase a large number of unpaid credit card accounts, the defendant's account is not mentioned in the document. As a matter of fact, while the document references "Exhibit 1" as describing all of the "receivables, judgments or evidences of debt" sold, this exhibit is not submitted for the court's consideration. Without this missing link, the plaintiff cannot establish the absence of any genuine issue as to the validity of its status as assignee.
"`Hearsay' means a statement, other than one made by the declarant while testifying at the proceeding, offered in evidence to establish the truth of the matter asserted." Conn. Code Evd. § 8-1. Section 8-2 of the Code of Evidence prohibits the admissibility of hearsay evidence except as otherwise provided in the Code, General Statutes or the Practice Book.
Our Supreme Court has emphasized that "[t]he courts hold the [summary judgment] 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." (Emphasis added; internal quotation marks omitted.) Maltas v. Maltas, supra, 298 Conn. 366. Because the plaintiff has not satisfied this strict standard, its motion for summary judgment cannot be granted.
CONCLUSION
Based on the foregoing, the plaintiff's motion for summary judgment is denied.