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Butterfacr

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Summary Judgement Case Law Connecticut
« on: November 07, 2010 12:54:01 AM »
971 A.2d 90

115 Conn.App. 10

AMERICAN EXPRESS CENTURION BANK
v.
William HEAD.

No. 29926.

Appellate Court of Connecticut.

Argued January 13, 2009.

Decided June 9, 2009.

        William Head, pro se, the appellant (defendant).

        William L. Marohn, with whom, on the brief, was Joseph M. Tobin, Meriden, for the appellee (plaintiff).

        LAVINE, BEACH and STOUGHTON, Js.

        LAVINE, J.

        The defendant, William Head, appeals from the judgment rendered by the trial court in favor of the plaintiff, American Express Centurion Bank, following the granting of the plaintiff's summary judgment motion. The defendant argues that the plaintiff failed to prove the absence of a genuine issue of material fact as to the amount the defendant allegedly owed to the plaintiff.1 We agree with the defendant and consequently reverse the judgment of the trial court.

        The following facts and procedural history are relevant for our consideration of the defendant's claim. The plaintiff served a two count complaint on the defendant. In the first count, the plaintiff alleged that it had entered into a credit card agreement with the defendant, that the payments on the account were delinquent and that the defendant owed the plaintiff $3824.97 plus interest and costs. The second count was based on unjust enrichment. The defendant filed an answer on December 4, 2006, denying all allegations and asserting special defenses. On December 27, 2006, the defendant filed a motion asking the court to order the plaintiff to produce written evidence to validate the defendant's alleged indebtedness to the plaintiff, which the court, Radcliffe, J., denied.

        On October 1, 2007, the plaintiff filed a motion for summary judgment. In support of its motion, the plaintiff filed a memorandum of law, affidavits from its authorized agent and attorney, credit card terms and conditions and account documents. The plaintiff's affidavits attested in relevant part that the interest in the present matter was $791.16, that the attached documents were accurate copies of the plaintiff's records and that there was no evidence that the defendant had disputed any of the charges shown on the account statements in a timely fashion.

        The account documents provided by the plaintiff consisted of photocopies of some monthly account statements it mailed to the defendant and fifty-two receipts. The closing dates shown on the account statements start on January 27, 2002, and end on April 27, 2004. The balance indicated on the earliest submitted account statement, with the closing date of January 27, 2002, is $8040.38, and the statement does not include a list of specific transactions or charges. The latest account statement, dated April 27, 2004, shows a balance of $3824.97, which is the amount alleged in the plaintiff's complaint. The remaining account statements submitted by the plaintiff cover the periods between May 27 and December 28, 2002, and between January 28 and April 27, 2004, and include itemized transactions.

        In addition to the account statements, the plaintiff submitted fifty-two copies of receipts documenting the defendant's transactions between February 6 and March 27, 2002. Of the fifty-two copies, twenty-three are devoid of information such as an account number, a date or an amount charged, or the service establishment and location and merely state: "The detailed information for the transaction described above could not be processed through our billing system. Please refer to your receipt provided at the time of purchase." The remaining receipt copies bear the defendant's account number, date and record of charge and the amount charged. The charges on the receipts that contain the amounts add up to a total of $860.77.

        On February 14, 2008, the defendant filed an objection to the plaintiff's motion for summary judgment, seeking "debt validation" and proof of a valid and enforceable contract, specific as to amounts owing and due. On April 7, 2008, the parties appeared before the court, Hiller, J. The court directed the defendant to read the relevant sections of the rules of practice and to submit appropriate documents in opposition to the plaintiff's motion for summary judgment.

        On April 23, 2008, the defendant filed a motion for a nonsuit, to which he attached a notarized affidavit. The affidavit and the motion for a nonsuit contain the same information. The defendant asked for a dismissal of the case and stated that he believed that the claimed charges were not his and that even if they were his, the charges and the associated interest alleged by the plaintiff as due were far greater than any amount that the defendant believed he had actually incurred. The defendant repeated his allegation that the plaintiff had failed to provide a validation of debt as required under federal and state laws and asserted that without such validation, a genuine issue of material fact existed as to the amount he owed. The defendant further pointed out that the documents provided by the plaintiff contain a small number of monthly statements with annual interest rates in excess of 20 percent, that thirty-two of the fifty-two submitted receipts are blank and that the total charges on the receipts that show charges total $860.77.

        On April 28, 2008, at the hearing on the plaintiff's motion, Judge Hiller stated that he intended to rule against the defendant because the defendant failed to file the appropriate papers required to oppose a motion for summary judgment. The court noted that the plaintiff submitted an affidavit, that the documents attached to the plaintiff's motion for summary judgment pertained to the defendant's account and that they added up to the amount that the plaintiff said was owed by the defendant. The court further indicated that if the defendant had stated in an affidavit that he did not owe the alleged amount, there would have been an issue of fact and the court would have given the defendant a trial right away. When the defendant directed the court's attention to the affidavit he had filed in support of his motion for a nonsuit, the court stated: "This is a motion for a nonsuit. It has nothing to do with a motion for summary judgment." The court, however, proceeded to review the defendant's affidavit and concluded that the affidavit merely asserted that the plaintiff's claims violated federal and state laws. The court further told the defendant that he should have disputed specific charges, to which the defendant replied that he could not do so because the plaintiff had not presented all the charges.

        Also on April 28, 2008, the court ordered summary judgment in the plaintiff's favor in the amount of $4616.13, or the principal amount of $3824.97 plus interest in the amount of $791.16. In a memorandum of decision filed on July 23, 2008, the court stated that the plaintiff filed documentation sufficient to support its motion for summary judgment and that the defendant failed to file any opposing affidavit or evidence sufficient to demonstrate that an issue of material fact existed. The defendant filed the present appeal on May 16, 2008.

        "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.... 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." (Citations omitted; emphasis added; internal quotation marks omitted.) Allstate Ins. Co. v. Barron, 269 Conn. 394, 405, 848 A.2d 1165 (2004).

        "Our review of the trial court's decision to grant the ... motion for summary judgment is plenary.... On appeal, we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court." (Internal quotation marks omitted.) Little v. Yale University, 92 Conn.App. 232, 234, 884 A.2d 427 (2005), cert. denied, 276 Conn. 936, 891 A.2d 1 (2006).

        We conclude that the court improperly concluded that the plaintiff satisfied its burden of proving the absence of any genuine issue of material fact as to the amount allegedly owed by the defendant. We therefore do not reach the issue of whether the defendant failed to raise a genuine issue of material fact in opposing the plaintiff's motion. See Allstate Ins. Co. v. Barron, supra, 269 Conn. at 405, 848 A.2d 1165.

        The plaintiff's complaint sounds in two counts, breach of contract and unjust enrichment. "The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages." (Internal quotation marks omitted.) Whitaker v. Taylor, 99 Conn.App. 719, 728, 916 A.2d 834 (2007). "Plaintiffs seeking recovery for unjust enrichment must prove (1) that the defendants were benefited, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs' detriment." (Internal quotation marks omitted.) Vertex, Inc. v. Waterbury, 278 Conn. 557, 573, 898 A.2d 178 (2006).

        In the present case, the defendant disputed the amount of debt alleged in the plaintiff's complaint, namely, $3824.97, when he denied all of the plaintiff's allegations in his answer to the complaint. The amount of debt allegedly incurred by the defendant was therefore a disputed material issue. We disagree with the court's finding that the documents attached to the plaintiff's motion for summary judgment "added up" to the amount the plaintiff claimed it was owed by the defendant. The earliest account statement submitted by the plaintiff, with a closing date of January 27, 2002, indicates that the defendant owed the plaintiff $8040.38. The plaintiff did not submit any evidence, such as a list of itemized transactions, showing that the plaintiff incurred charges in the amount of $8040.38 prior to January 27, 2002. The individualized receipts submitted by the plaintiff, twenty-three of which are essentially blank, also do not account for $8040.38 allegedly owed by the defendant as of January 27, 2002, because they are incomplete and they date from the period between February 6 through March 27, 2002. The receipts and the copies of monthly statements submitted by the plaintiff account only for some periods of the defendant's credit card billing history. In summary, we conclude that the plaintiff has failed to submit documentation supporting the total amount claimed to be due.

        We conclude that because the defendant disputed in his pleadings the amount he allegedly owed to the plaintiff, the plaintiff had the burden to prove that there was no genuine issue as to the amount of debt alleged in its complaint. The plaintiff submitted the April, 2004 monthly statement, showing the amount it sought in its complaint, and various statements and receipts that provided the defendant's incomplete credit card history. We conclude that in this case, submitting a monthly account statement that indicates the alleged amount of debt, and an affidavit stating that the defendant never disputed his monthly billing statements and that the submitted documents, some of which are essentially blank, are accurate copies of the plaintiff's records, does not satisfy that burden.2 We do not suggest that defendants who default on their credit card payments can defeat a summary judgment motion simply by denying that they have incurred those charges. We merely conclude that the plaintiff creditor needs to substantiate its claims with sufficient evidence at the summary judgment stage. Having failed to negate the existence of a genuine issue of material fact, the plaintiff did not meet its burden of establishing that as a matter of law, summary judgment should have been rendered in its favor. Accordingly, we reverse the judgment of the trial court.

        The judgment is reversed and the case is remanded for further proceedings in accordance with law.

        In this opinion the other judges concurred.

---------------

Notes:

1. The defendant, who is a pro se litigant, primarily argues on appeal, as he did before the trial court, that the plaintiff failed to "validate" the alleged debt by submitting original contracts and original receipts pursuant to various state and federal statutes. The defendant did not adequately brief his arguments regarding the statutory provisions, and we therefore decline to review them. The defendant, however, also argues that the court's "decision to grant [the] plaintiff summary judgment was rendered with said insufficient evidence with respect to the alleged debts." "Whenever [the] language [of the pleadings] fails to define clearly the issues in dispute, the court will put upon it such reasonable construction as will give effect to the pleadings in conformity with the general theory which it was intended to follow, and do substantial justice between the parties.... t is the established policy of the Connecticut courts to be solicitous of pro se litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the pro se party." (Internal quotation marks omitted.) Vanguard Engineering, Inc. v. Anderson, 83 Conn.App. 62, 65, 848 A.2d 545 (2004). Because the defendant essentially is addressing the sufficiency of proof at the summary judgment stage, we construe his argument on appeal accordingly.

2. We are aware that a number of our trial courts, faced with an action to recover damages for the breach of a credit card agreement, have granted a motion for summary judgment in favor of a creditor plaintiff where the plaintiff submitted records demonstrating an amount due and an affidavit stating that the plaintiff sent monthly statements to the defendant, that the defendant did not dispute the amounts due and that, therefore, the defendant essentially acquiesced to all past monthly statements being true records of the amount of debt owed. See, e.g., Citibank v. Gemske, Superior Court, judicial district of Middlesex, Docket No. CV-05-4002020-S, 2005 WL 3665083 (December 21, 2005) (40 Conn. L. Rptr. 489); Citibank (South Dakota) N.A. v. Stewart, Superior Court, judicial district of New Haven, Docket No. CV-05-4012384-S, 2005 WL 3510181 (November 30, 2005) (40 Conn. L. Rptr. 337). These cases rely on the "account stated" theory of recovery as articulated by our Supreme Court in General Petroleum Products, Inc. v. Merchants' Trust Co., 115 Conn. 50, 160 A. 296 (1932), and Dunnett v. Thornton, 73 Conn. 1, 46 A. 158 (1900), and seem to conclude that the plaintiff is entitled to summary judgment on the basis of evidence that the defendant received monthly statements and failed to dispute their content.

        We neither endorse nor disavow the approach taken by our trial courts because the plaintiff in the present case did not rely on the account stated theory in its complaint. See Citibank (South Dakota), N.A. v. Manger, 105 Conn.App. 764, 765, 939 A.2d 629 (2008) (plaintiff commenced lawsuit sounding in account stated). The court's memorandum of decision does not mention the account stated theory although the plaintiff's affidavit in support of its summary judgment motion and the accompanying memorandum relied on it. Additionally, neither party raises the issue of account stated in its appellate brief. We therefore do not address the applicability of the account stated theory, as articulated by our Supreme Court in General Petroleum Products, Inc., and Dunnett, to actions to recover damages for breach of a credit card agreement.

---------------

trueq

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Re: Summary Judgement Case Law Connecticut
« Reply #1 on: November 07, 2010 01:46:14 AM »
An excellent treatise on summary judgment issues.

This is probably one of the greatest pro se' appeal victories I've ever seen.

difficult to deafeat SJ on credit card issues. 
My free speech is not legal advice.  If you need legal advice, you need to talk to a lawyer.

Litigation Defense record
Arbitration record:   9 wins * 0 loses
Court Record:         2 wins * 2 judgments (1 of the 2 judgments has been vacated, other judgment upheld on appeal, marked "satisfied", because I wrote a check.)

The one bank that beat me in court, I now have a $2200 limit credit card from them again.
Redemption is always possible.

Butterfacr

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  • Posts: 153
Re: Summary Judgement Case Law Connecticut
« Reply #2 on: November 07, 2010 08:13:05 PM »
An excellent treatise on summary judgment issues.

This is probably one of the greatest pro se' appeal victories I've ever seen.

difficult to deafeat SJ on credit card issues.

  Indeed, looks like the same defendant lost an appeal with a junk debt buyer on the same issue. Strange rulings, I didn't really take in this second ruling, maybe we can figure out what went wrong on this one below;
« Last Edit: November 07, 2010 08:18:30 PM by Butterfacr »

Butterfacr

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  • Posts: 153
Re: Summary Judgement Case Law Connecticut
« Reply #3 on: November 07, 2010 08:16:51 PM »
  Indeed, looks like the same defendant lost an appeal with a junk debt buyer on the same issue. Strange rulings.

977 A.2d 767

117 Conn.App. 92

CREDIT ONE, LLC
v.
William E. HEAD.

No. 30467.

Appellate Court of Connecticut.

Argued May 27, 2009.

Decided September 15, 2009.

        William E. Head, pro se, the appellant (defendant).

        FLYNN, C.J., and LAVINE and HENNESSY, Js.

        LAVINE, J.

        The defendant, William E. Head, appeals from the judgment of the trial court rendered after it granted the motion for summary judgment filed by the plaintiff, Credit One, LLC. On appeal, the defendant claims that the court improperly concluded that there was no genuine issue as to any material fact and that the plaintiff was entitled to judgment as a matter of law. The defendant specifically repeats on appeal the arguments he made in his affidavit in opposition to the plaintiff's motion for summary judgment and asserts that the plaintiff provided insufficient evidence regarding the amount of debt he allegedly owed, the interest rate and the identity of the entity alleged to have an agreement with him.1 We disagree with the defendant and affirm the judgment of the trial court.

        The following facts and procedural history are relevant for our consideration of the defendant's claim. The plaintiff commenced this action against the defendant by serving a complaint dated January 11, 2008, alleging two counts: default on an open end credit account and account stated. In the first count, the plaintiff alleged that it is a successor in interest to Citibank in a credit account held by the defendant, that he accepted a credit account from Citibank, that he is in default of his payment obligation for the extended credit and that there was due from him the sum of $5529.41 together with interest and costs of suit. In count two, the plaintiff alleged that it transmitted account statements to the defendant, setting forth charges and amounts due, that he received these statements without timely protest and neither objected to them nor indicated that they were erroneous. The plaintiff also alleged that the final statement transmitted to the defendant indicated a balance due and owing and asked for damages for the account stated balance plus statutory interest as allowed by law. In his answer filed on February 14, 2008, the defendant denied all allegations set forth in the complaint and set forth two defenses, namely, that the plaintiff had failed to provide validation of alleged debts under applicable state and federal statutes and pursued predatory lending practices.

        On May 7, 2008, the plaintiff filed a motion for summary judgment, claiming that there were no genuine issues of material fact and that the plaintiff was entitled to judgment as a matter of law. The plaintiff's motion was accompanied by the following: a memorandum of law, a notarized affidavit of debt signed by the plaintiff's chief financial officer, a certificate of assignment from the plaintiff's authorized agent stating that the plaintiff purchased all rights, title and interest in the defendant's account from Citibank, a notarized affidavit of interest from the plaintiff's attorney seeking interest due in accordance with General Statutes § 37-3a and amounting to $2067.83,2 and account documents. The account documents submitted by the plaintiff consisted of an application for a credit card account signed by the defendant on August 4, 1998, and copies of monthly billing statements issued by Citibank and addressed to William E. Head, Head & Associates, Ltd., residing at 52 Village Walk in Wilton. The plaintiff submitted six monthly billing statements. The last statement covered the period between July 5, 2004, and August 4, 2004, and showed the amount due to be $5529.41.3

        In the memorandum of law accompanying its motion for summary judgment, in addressing the second count of its complaint, the plaintiff stated that there was no genuine issue of material fact as to whether the defendant properly objected to his credit card billing statements. The plaintiff stated that the defendant was provided with account statements and that he accepted them without notice of defect. The plaintiff further argued that the defendant's address on the billing statements matched the address the defendant provided to Citibank and the address listed on the defendant's answer to the plaintiff's complaint. The plaintiff also stated that the final statement reflecting the defendant's outstanding account balance was accepted by the defendant without a notice of protest and that the defendant submitted no evidence of a proper billing dispute.

        The only document submitted by the defendant in opposition to the plaintiff's motion was a notarized affidavit filed on May 15, 2008. In the affidavit, the defendant stated that the claimed charges are not his or that they are greater than any amounts he believes he incurred. The defendant attested that the plaintiff "has repeatedly failed to produce legally required validation of alleged debts" pursuant to unspecified "[f]ederal (s)tatutes" and requested, among other things, the following: receipts of the actual underlying charges, entity information4 regarding the plaintiff and "nformation on [the] plaintiff's computer system validity...." The defendant also noted that the "statute of limitations may have run."5

        The hearing on the plaintiff's motion for summary judgment, which the defendant did not attend, was held on September 29, 2008. The court granted the plaintiff's motion on September 29, 2008, awarding the plaintiff $5529.41 in damages and $2067.83 in interest. The court did not issue a memorandum of decision, but it mailed the copy of the signed transcript of the hearing to this court and both counsel. The transcript indicates that the court reviewed all the documents submitted by the plaintiff and the affidavit submitted by the defendant.

        "Practice Book § [17-49] requires that 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. A material fact is a fact that will make a difference in the result of the case.... The facts at issue are those alleged in the pleadings.... The party seeking 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 a judgment as a matter of law.... The party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. See Practice Book § [17-44 and 17-45]. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.... The test is whether a party would be entitled to a directed verdict on the same facts.... Our review of the trial court's decision to grant a motion for summary judgment is plenary." (Citation omitted; internal quotation marks omitted.) Weiner v. Clinton, 106 Conn.App. 379, 382-83, 942 A.2d 469 (2008).

        We conclude that the court properly granted the plaintiff's motion for summary judgment because the plaintiff demonstrated that there is no genuine issue as to any material fact and that it is entitled to judgment as a matter of law on count two of its complaint sounding in account stated.6 Our Supreme Court stated in General Petroleum Products, Inc. v. Merchants Trust Co., 115 Conn. 50, 56, 160 A. 296 (1932), that "[t]he delivery by the bank to the plaintiff of each statement of the latter's account, with the canceled checks upon which the charges against it were based, 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 or impeached upon proof of mistake or fraud, but the plaintiff's silence as to the correctness of the account rendered puts upon it the burden of proving that the account, as stated, was the result of such fraud or mistake." This court recently relied on General Petroleum Products, Inc., when it considered an appeal from the rendering of summary judgment in an action that was based on the theory of account stated. See Citibank (South Dakota), N.A. v. Manger, 105 Conn.App. 764, 766-67, 939 A.2d 629 (2008) (summary judgment rendered in favor of plaintiff where defendant failed to make payments in accordance with credit card agreement). Other jurisdictions have held that the plaintiff was entitled to judgment as a matter of law by demonstrating that it generated statements for the defendant in the regular course of business and that it mailed those statements to the defendant, who retained them without objection for more than one year prior to the commencement of the action. See American Express Centurion Bank v. Williams, 24 A.D.3d 577, 807 N.Y.S.2d 612 (2005).7

        We conclude that the plaintiff in the present case satisfied its burden of showing the absence of any genuine issue of material fact. In its complaint, the plaintiff alleged that the defendant received monthly billing statements setting forth charges and amounts due on his credit account and that the defendant neither objected to them nor indicated that they were erroneous prior to the commencement of the present action. The plaintiff submitted copies of six monthly account statements delivered to the defendant. Although the statements do not appear to account for the entire transactional history between the plaintiff and the defendant, which dates back to 1998, the plaintiff submitted a copy of the final account statement covering the period between July 5, 2004, and August 4, 2004. That statement, like the others, was addressed to the defendant at 52 Village Walk in Wilton, which is the address used by the defendant on his answer to the plaintiff's complaint. The statement informed the defendant that he owed $5529.41 to the plaintiff. On the basis of that, we conclude that the plaintiff demonstrated that the statements of the defendant's account were rendered to the defendant and that the defendant retained the statements for an unreasonable time, which, in an action that was based on account stated, is prima facie evidence of the correctness of the account. See General Petroleum Products, Inc. v. Merchants Trust Co., supra, 115 Conn. at 56, 160 A. 296; see also Citibank (South Dakota) N.A. v. Manger, supra, 105 Conn. App. at 765, 939 A.2d 629 (plaintiff satisfied its burden by showing it sent defendant monthly statements evidencing balance due and defendant did not dispute balance listed on statements prior to commencement of action).

        The defendant did not dispute, in his answer or in his affidavit in opposition to the motion, that he received monthly account statements from the plaintiff or that he retained them for almost four years without objecting to them. Although the defendant attests in his affidavit that the plaintiff "repeatedly failed to produce legally required validation of alleged debt," he does not claim, or provide any evidence, that he objected to the monthly account statements prior to the institution of the present action. In his answer, the defendant denied all allegations set forth in the plaintiff's complaint and, in the affidavit in opposition to the plaintiff's motion, attested that "t is the defendant's belief that the charges claimed are not [the] defendant's, and that should it be the case that certain of the charges alleged to be [the defendant's] are actually [the] defendant's charges, that the [moneys] borrowed and associated interest charges due as stated by [the] plaintiff, are far greater than any amounts [the] defendant believes were actually incurred, and therefore due by [the] defendant." The defendant's unsubstantiated belief is not sufficient to raise a genuine issue of material fact.

        Once the movant shows the nonexistence of any material fact, "a party opposing 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.... Mere assertions of fact ... are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment]." (Internal quotation marks omitted.) Home Ins. Co. v. Aetna Life & Casualty Co., 235 Conn. 185, 202, 663 A.2d 1001 (1995). The defendant's assertions challenging the amount due in his answer and affidavit, 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.

        The defendant's arguments regarding the plaintiff's identity are also insufficient to raise a genuine issue of material fact. We conclude that in light of the bills of sale and assignment submitted by the plaintiff, there is no genuine issue regarding the plaintiff's standing to bring this action. See footnote 3. Additionally, the defendant's allegation, unsupported by any evidence, that the associated interest charges are greater than he believes them to be is also insufficient to raise a genuine issue of material fact in light of the calculation of interest set forth in the plaintiff's affidavit of interest. See footnote 2. The remaining arguments in the defendant's affidavit and appellate brief are briefed inadequately and therefore insufficient to oppose the plaintiff's motion.8 The court's conclusion that there was no genuine issue of material fact and that the plaintiff was entitled to summary judgment as a matter of law was therefore logically and legally correct.

        The judgment is affirmed.

        In this opinion the other judges concurred.

---------------

Notes:

1. We interpret the arguments of the defendant, who is representing himself, as a challenge to the court's determination that the plaintiff successfully demonstrated the absence of any genuine issue of material fact. See Utzler v. Braca, 115 Conn.App. 261, 272 n. 4, 972 A.2d 743 (2009) (this court exhibits some degree of leniency in reading appellate briefs of pro se litigants).

2. In the affidavit of interest, the plaintiff stated that it sought interest in accordance with § 37-3a on the balance due, that the interest shall not exceed 10 percent per annum, that it is calculated at a rate of 10 percent from August 5, 2004, through May 1, 2008, at a "per diem rate of 1.51," and that it amounts to $2067.83.

3. The plaintiff also submitted a copy of a bill of sale, assignment and assumption agreement between Debt One, LLC, and Citibank, USA, dated August 31, 2005, a copy of an assignment and bill of sale between Debt One, LLC, and the plaintiff, dated September 9, 2005, a notarized affidavit from Helen Denton, an employee of Citicorp Credit Services, Inc., and credit account terms and conditions. Last, the plaintiff submitted a copy of the decision of the office of the comptroller of the currency on the applications to reorganize the credit card operations of Citigroup, Inc., and to transfer certain other subsidiaries to Citibank, National Association, New York.

4. The defendant essentially requested information on why Debt One, LLC, was listed on the assignment agreement submitted by the plaintiff, as well as why the credit account terms and conditions submitted by the plaintiff refer to AT&T Universal Bank instead of Citibank.

5. The defendant did not provide any legal analysis to support his assertion as to the statute of limitations in his affidavit in opposition to the summary judgment motion, did not further articulate it at the hearing on the plaintiff's motion and did not mention it in his appellate brief. We therefore decline to address it.

6. The plaintiff's complaint set forth two alternative counts asking for the same amount of damages. See, e.g., Stein v. Horton, 99 Conn. App. 477, 485, 914 A.2d 606 (2007) (breach of contract and unjust enrichment are alternative counts entitling plaintiff to single measure of damages). It is unclear from the transcript of the hearing what principles of substantive law were considered by the court when it granted the plaintiff's motion for summary judgment.

        In his appellate brief, the defendant does not make any specific reference to either cause of action pleaded by the plaintiff in its complaint, and the plaintiff has neither submitted an appellate brief nor appeared at the oral argument before this court. Because we exercise plenary review over a trial court's decision to grant a motion for summary judgment, we conclude that the plaintiff was entitled to judgment as a matter of law under count two of its complaint, and we therefore do not address count one of the complaint sounding in default on an open end credit account.

7. Several trial court decisions in Connecticut have also recognized the validity of an account stated cause of action in a factual context similar to the present one. See, e.g., Citibank (South Dakota), N.A. v. Piscitelli, Superior Court, judicial district of New. Haven, Docket No. CV-04-0491060-S, 2006 WL 894918 (March 17, 2006) (40 Conn. L. Rptr. 873); Citibank v. Gemske, Superior Court, judicial district of Middlesex, Docket No. CV-05-4002020-S, 2005 WL 3665083 (December 21, 2005) (40 Conn. L. Rptr. 489); Citibank (South Dakota), N.A. v. Stewart, Superior Court, judicial district of New Haven, Docket No. CV-05-4012384-S, 2005 WL 3510181 (November 30, 2005) (40 Conn. L. Rptr. 337).

8. The defendant also stated in his affidavit that the "plaintiff has repeatedly failed to produce legally required validation of alleged debts, as per applicable Federal Statutes that the State of Connecticut in permitting lending under rules only available to certain chartered lending institutions thereby allowing interest rate charges greater than those allowed under Connecticut Law per se, requires." At the hearing on its motion, the plaintiff explained to the court that it believed that the defendant was referring to the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692-1692o, which is not a valid defense to this action and which the plaintiff may address in a separate claim. In his appellate brief, the defendant refers, without providing any legal analysis, to 15 U.S.C. § 1692h(a)(4) and two federal cases addressing what constitutes acceptable debt collection means under that act. See Clomon v. Jackson, 988 F.2d 1314, 1316, 1318 (2d Cir.1993); Masuda v. Thomas Richards & Co., 759 F.Supp. 1456, 1466 (C.D.Cal. 1991). Because it is unclear how the statute or the case law cited by the defendant is applicable to the present case, we conclude that the defendant's raising of this inadequately briefed claim does not make the court's conclusion that there was no genuine issue of a material fact logically and legally incorrect.





[Edited to correct formatting only]
« Last Edit: November 08, 2010 12:25:25 PM by Admin6572 »

trueq

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Re: Summary Judgement Case Law Connecticut
« Reply #4 on: November 07, 2010 09:32:16 PM »
Nothing went "wrong".

SJ is a crazy business.

An issues of "Law" or "fact" to defeat SJ is a VERY SUBJECTIVE matter.

Never gamble, on defeating an SJ.   It all comes down to the judge.

Easier to blow their jurisdiction with arbitration.  That defeats SJ and puts a ton of hurdles in front of your opponent before they can get in a position to beat you again.

Look at the work this litigant put in....he was probably correct both times, but only has a .500 litigation record to show for it.

My arbitration record is 1.000 with a lot less effort, with only 1 last pending case (out of 9) left in arbitration.
My free speech is not legal advice.  If you need legal advice, you need to talk to a lawyer.

Litigation Defense record
Arbitration record:   9 wins * 0 loses
Court Record:         2 wins * 2 judgments (1 of the 2 judgments has been vacated, other judgment upheld on appeal, marked "satisfied", because I wrote a check.)

The one bank that beat me in court, I now have a $2200 limit credit card from them again.
Redemption is always possible.

Butterfacr

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Re: Summary Judgement Case Law Connecticut
« Reply #5 on: November 08, 2010 06:06:22 PM »
Nothing went "wrong".

SJ is a crazy business.

An issues of "Law" or "fact" to defeat SJ is a VERY SUBJECTIVE matter.

Never gamble, on defeating an SJ.   It all comes down to the judge.

Easier to blow their jurisdiction with arbitration.  That defeats SJ and puts a ton of hurdles in front of your opponent before they can get in a position to beat you again.

Look at the work this litigant put in....he was probably correct both times, but only has a .500 litigation record to show for it.

My arbitration record is 1.000 with a lot less effort, with only 1 last pending case (out of 9) left in arbitration.

  Question is though what if the fee's for the creditor get lowered to enter into arbitration?

Frostie

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Re: Summary Judgement Case Law Connecticut
« Reply #6 on: November 08, 2010 07:05:24 PM »
I see a different lesson here, namely what legal theory the plaintiff is operating under. In the first case the court construed the plantiff's theory as "unjust enrichment." In the second case it was "account stated".  I think it's also worth noting that in the second case the documentation from the plaintiff was much more in order than in the first case.

To me the difference in outcome really boils down to a difference in lawyering and evidence.

mrjaggers

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Re: Summary Judgement Case Law Connecticut
« Reply #7 on: November 08, 2010 08:00:07 PM »
I don't disagree that arbitration makes a ton of sense.  It should be the first arrow out of the quiver for pretty much every defendant in these cases.

But I do disagree somewhat on the SJ issue.  I'm batting 1.000 on SJ, although it's only 2 for 2.  I'll give you that.  The case law in various jurisdictions varies, of course, but the fundamental is the same:  is there a genuine issue of material fact?  In my jurisdiction, essentially all that requires is a denial of fact on plaintiff's claims.  Here's the controlling case in my state, South Dakota:  http://www.debtorboards.com/index.php/topic,11149.0.html

If you've got a typical case, what you're looking at is:  (1) claims in a complaint; (2) affidavit from JDB representative; and (3) old account statements that usually aren't itemized and don't add up to the claim.  Look at what the SD Supreme Court said created genuine issues of material fact:

Quote
2. Whether a genuine issue of material fact was in dispute when Discover provided no evidence that Stanley made the original charges to the Discover credit card.[¶28]   Discover argued before the circuit court that Stanley was bound by the terms and conditions of the credit card agreement. In this case, the terms and conditions of the credit card agreement entered into by the parties states that Stanley was required to pay:
n U.S. Dollars for all purchases, cash advances, and balance transfers including applicable Finance Charges and other charges or fees, incurred by you or anyone you authorize or permit to use your Account or a Card, even if you do not notify us that others are using your Account or a Card.
Thus, by the terms of its own contract, Discover is limited to pursuing Stanley for those charges he personally incurred on the Discover card, or charges incurred by someone Stanley authorized to use the account.
[¶29]   Discover was unable to show in its affidavit and supporting exhibits what the 1997 charge(s) was for, when the charge(s) was made, where it was made, who made the charge(s), and whether it was “authorized” within the meaning of the contract.{fn3} Discover’s claim that Stanley owed the money was just that, a mere claim.
[¶30]   Stanley resisted Discover’s motion for summary judgment by affidavit, stating under oath that he did not make the 1997 charge(s), nor did he authorize another person to make the charge(s). Thus, Stanley generated a genuine issue of material fact as to whether he owed the 1997 charge(s) and the outstanding balance. Stanley as the nonmoving party, not Discover, was entitled to all reasonable inferences.
[¶31]   Discover offered nothing further to show the nonexistence of a genuine issue of material fact other than its original claim that the balance on the June 15, 1998, billing statement, the earliest statement Discover was able to produce, was owed by Stanley. Without some type of substantiation that the original 1997 charge(s) was “incurred by [Stanley] or anyone [Stanley] authorize[d] or permit[ted] to use [the] Account or … Card[,]” Discover could not prevail on its motion for summary judgment.
[¶32]   Discover’s failure to file a statement of undisputed material facts also impacts the issue of accord and satisfaction. An accord and satisfaction is authorized by statute. SDCL 20-7-4. “The ‘burden of proof to establish such defense is on the party who seeks to rely on it.’” Hubbard Milling Co. v. Frame, 310 NW2d 155, 157 (SD 1981) (citing Lang v. Burns, 77 SD 626, 97 NW2d 863 (1959)). Nevertheless, there exists a material question of fact on the December 2004 billing statement. Discover’s claim that the zero balance on this billing statement was an accounting write-off cannot be ascertained as a matter of undisputed fact from the face of that document. Moreover, Stanley testified by affidavit that he was told over the phone by Discover that the account was satisfied. Thus, Discover has failed to establish that no questions of fact exist as to an accord and satisfaction or lack thereof.

I'm not disagreeing about aarbitration.  But if you pitch theings right, I don't think SJ isnecessarily a death trap.  That's all.

Frostie

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Re: Summary Judgement Case Law Connecticut
« Reply #8 on: November 08, 2010 09:18:28 PM »
Quote
Stanley resisted Discover’s motion for summary judgment by affidavit, stating under oath that he did not make the 1997 charge(s), nor did he authorize another person to make the charge(s).

Isn't that perjury though if later on the court concludes at trial that he does in fact owe the charges.

mrjaggers

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Re: Summary Judgement Case Law Connecticut
« Reply #9 on: November 08, 2010 09:22:29 PM »
No I don't believe that's the case.