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RAB PERFORMANCE RECOVERIES, LLC v.
ANTHONY C. JAMES
(AC 35859)
Lavine, Sheldon and Pellegrino, Js.
Argued March 17—officially released July 1, 2014
(Appeal from Superior Court, judicial district of
Fairfield, Radcliffe, J.)
Anthony C. James, self-represented, the appellant
(defendant).
Jeanine M. Dumont, for the appellee (plaintiff).
Opinion
LAVINE, J. The self-represented defendant in this
debt collection action, Anthony C. James, appeals from
the judgment of the trial court rendered in favor of the
plaintiff, RAB Performance Recoveries, LLC. On appeal,
the defendant claims that the court, in granting the
plaintiff’s motion for summary judgment as to liability,
improperly concluded that there was no genuine issue
of material fact regarding the plaintiff’s ownership of
the account that is the subject of the complaint. We
disagree and, accordingly, affirm the judgment of the
trial court.
The record reveals the following relevant facts and
procedural history. On January 11, 2012, the plaintiff
commenced this action and alleged in a two count com-
plaint that the defendant (1) defaulted on a Chase Bank
USA (Chase) credit account1 and (2) was liable for the
account stated. The plaintiff alleged that ‘‘[it] purchased
title to this debt on [June 30, 2011] for valuable consider-
ation and as such is the bona fide owner of the debt.’’
The defendant answered the complaint, in which he
alleged that he was ‘‘without knowledge or information
sufficient to form a belief as to the truth of the alle-
gations.’’
On April 12, 2012, the plaintiff served the defendant
with requests for admission. See Practice Book § 13-
22. The requests for admission included statements,
which, if not contested, admitted each material allega-
tion of the complaint. The defendant responded to the
plaintiff’s requests for admission on May 11, 2012, by
objecting to each request on various grounds.2 On June
5, 2012, the plaintiff filed a motion to determine the
sufficiency of the defendant’s responses to the requests
for admission pursuant to Practice Book § 13-23 (b).3
On June 18, 2012, the court, Tyma, J., found that the
defendant’s responses to the plaintiff’s request for
admissions did not comply with § 13-23 (a).4 The court
granted the plaintiff’s motion and ordered the defendant
to submit amended responses by July 13, 2012. The
court specifically ordered that if the defendant failed
to file an appropriate response, and the plaintiff filed
an affidavit attesting to the truth of the facts at issue,
the court would consider the defendant’s insufficient
response as an admission.
Notwithstanding the court’s order, the defendant
failed to amend his responses5 and, on October 15, 2012,
the plaintiff filed a motion for summary judgment as to
liability pursuant to Practice Book § 17-44. The plaintiff
appended to the motion a sworn affidavit of an adminis-
trative manager of the plaintiff, Mary LeBental, who
averred that the defendant defaulted on the subject
credit account and that the plaintiff owned the account
and was entitled to collect the debt. Accompanying the
affidavit of LeBental were copies of monthly statements
of the subject account for the period from June, 2008
through November, 2009, as well as two assignment
agreements that documented the sale of unpaid credit
accounts from Chase to the plaintiff.6
The defendant filed an objection to the plaintiff’s
motion for summary judgment in which he argued that
the plaintiff had not provided evidence that it was the
owner of the subject account. The defendant did not
file a counteraffidavit, but rather appended copies of
various collection letters that the defendant had
received from Chase and other collection agencies
attempting to collect the debt on behalf of Chase. We
note that these letters predated the assignment of the
account to the plaintiff. Thus, none of the letters contra-
dicted the plaintiff’s claim of ownership or otherwise
raised a genuine issue of material fact.
Following a hearing on November 5, 2012, the court,
Radcliffe, J., granted the plaintiff’s motion for summary
judgment as to liability. The defendant, thereafter, filed
an appeal to this court, which was dismissed for lack
of a final judgment on January 23, 2013. The defendant
filed a motion for judgment, which Judge Radcliffe
granted on June 18, 2013. The court found that the
defendant owed the plaintiff $7067.69 in damages plus
costs in the amount of $362. This appeal followed.
The defendant claims that the court improperly
granted the plaintiff’s motion for summary judgment as
to liability when it determined that there was no genuine
issue of material fact as to the plaintiff’s ownership of
the debt in question. Specifically, the defendant con-
tends that the plaintiff failed to provide credible evi-
dence that the defendant’s account was assigned by
Chase to the plaintiff. We disagree.7
It is well established that our review of the trial
court’s decision to grant summary judgment is plenary.
See Marinos v. Poirot, 308 Conn. 706, 712, 66 A.3d 860
(2013). Pursuant to Practice Book § 17-49, 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.’’ Our rules of practice make clear that the party
moving for summary judgment carries the burden of
proving that there is no genuine issue of material fact
by supporting its motion with affidavits and other docu-
ments. Practice Book § 17-45. Our rules also require
that an adverse party ‘‘shall at least five days before
the date the motion is to be considered on the short
calendar file opposing affidavits and other available
documentary evidence.’’ Practice Book § 17-45.
‘‘Once the moving party has met its burden . . . the
opposing party must present evidence that demon-
strates the existence of some disputed factual issue’’;
(emphasis added; internal quotation marks omitted)
Marinos v. Poirot, supra, 308 Conn. 712; or the motion
for summary judgment will be granted. This is so
because ‘‘[o]nce [the] [movant’s] burden in establishing
his entitlement to summary judgment is met . . . the
burden shifts to [the nonmovant] to show that a genuine
issue of fact exists justifying a trial.’’ (Internal quota-
tions marks omitted.) Rockwell v. Quintner, 96 Conn.
App. 221, 229, 899 A.2d 738, cert. denied, 280 Conn. 917,
908 A.2d 538 (2006).
In the present case, the defendant has made a variety
of assertions but has failed entirely to produce evidence
to controvert the plaintiff’s motion, which was sup-
ported by the affidavit of LeBental and other documen-
tary evidence that demonstrated that the plaintiff was
the owner of the credit account in question. On the
basis of this evidence, the plaintiff has met its burden of
demonstrating that there is no genuine issue of material
fact as to ownership. Because the defendant has not
filed a counteraffidavit with the court or any other docu-
mentary evidence demonstrating the existence of a gen-
uine issue of material fact, as required by Practice Book
§ 17-45, the trial court properly granted the motion for
summary judgment. Stated differently, the defendant
has failed to show the existence of a factual question
that justifies a trial.
Although the defendant filed an objection to the
motion for summary judgment in which he argued that
there was a genuine issue of material fact as to the
plaintiff’s ownership of the debt,8 our rules of procedure
make clear that an unsworn and conclusory assertion
is insufficient to defeat a motion for summary judgment.
See Practice Book § 17-45; 2830 Whitney Avenue Corp.
v. Heritage Canal Development Associates, Inc., 33
Conn. App. 563, 567, 636 A.2d 1377 (1994) (‘‘existence
of [a] genuine issue of material fact must be demon-
strated by counteraffidavits and concrete evidence’’).
Furthermore, by ignoring the court’s clear order and
failing to amend his responses to the plaintiff’s requests
for admission, the plaintiff’s ownership of the credit
accounts has been conclusively established pursuant
to Practice Book § 13-24.9 ‘‘In Orenstein v. Old Bucking-
ham [Corp., 205 Conn. 572, 575–77, 534 A.2d 1172
(1987)], our Supreme Court affirmed the granting of a
summary judgment on the basis of admissions by a
party who did not respond to requests to admit, even
though an opposing affidavit was filed. The present case
is even more favorable to sustaining the trial court’s
[ruling as to liability] because here, although [the defen-
dant] filed an unsworn statement in response to the
plaintiff’s motion for summary judgment, he did not file
an opposing affidavit.’’ Allied Grocers Cooperative, Inc.
v. Caplan, 30 Conn. App. 274, 280, 620 A.2d 165 (1993).
The judgment is affirmed.
In this opinion the other judges concurred.
1
The complaint alleged that the defendant became indebted to Chase in
the sum of $7067.69 resulting from the defendant’s use of a credit account.
2
In his answer to the plaintiff’s requests for admission, the defendant
objected to nearly every question, even inquiries concerning basic informa-
tion. For instance, the defendant was asked whether he resided at a particular
address ‘‘at all relevant times,’’ which was defined expressly as ‘‘any time
during which [the defendant] had this Credit Card Account.’’ The defendant
objected because ‘‘ ‘at all relevant times’ is lacking clarity of meaning, as
no specific dates are given.’’
Moreover, the defendant objected to a number of requests because the
defendant’s entire twelve digit credit card number was redacted and identi-
fied only by the last four digits. Although requests for admission are served
and not filed with the court, plaintiff’s counsel stated that the account
number was redacted in light of Practice Book § 4-7, which requires that
certain personal information, including financial account numbers, be
redacted from documents filed in court. Also, in an attempt to resolve the
defendant’s objection regarding the redacted account number, the plaintiff,
in a letter dated May 17, 2012, informed the defendant that the account
number was redacted for his protection, but then stated the full account
number to the defendant.
3
Practice Book § 13-23 (b) provides in relevant part: ‘‘The party who has
requested the admission may move to determine the sufficiency of the
answer or objection. . . . If the judicial authority determines that an answer
does not comply with the requirements of this rule, it may order either that
the matter is admitted or that an amended answer be served. . . .’’
4
Practice Book § 13-23 (a) provides in relevant part: ‘‘[The response to
a request for admissions] shall specifically deny the matter or set forth in
detail the reasons why the answering party cannot truthfully admit or deny
the matter. A denial shall fairly meet the substance of the requested admis-
sion, and when good faith requires that a party qualify his or her answer
or deny only a part of the matter of which an admission is requested, such
party shall specify so much of it as is true and qualify or deny the remainder.
An answering party may not give lack of information or knowledge as a
reason for failure to admit or deny unless such party states that he or she
has made reasonable inquiry and that the information known or readily
obtainable by him or her is insufficient to enable an admission or denial. A
party who considers that a matter of which an admission has been requested
presents a genuine issue for trial may not, on that ground alone, object to
the request; the party may deny the matter or set forth reasons why he or
she cannot admit or deny it. . . .’’
5
Among the matters deemed admitted were: ‘‘13. Do you admit that the
defendant has no evidence to support the denial of the allegations of the
plaintiff’s complaint herein?’’ and ‘‘28. Do you admit plaintiff is the owner
of this debt and has the right to enforce this debt?’’
6
The plaintiff also included with the motion copies of the defendant’s
answer, the defendant’s responses to the plaintiff’s requests for admission,
and Judge Tyma’s order finding that the responses were insufficient.
7
The defendant also claims that court erred by (1) ‘‘not setting aside the
judgment in this matter due to lack of subject matter jurisdiction, as the
plaintiff lacked standing to bring about a cause of action,’’ and (2) ‘‘allowing
an affidavit, prepared thirteen months after the alleged sale and assignment
to the plaintiff, to be considered as additional evidence in the plaintiff’s
motion for summary judgment’’ because it was not a valid business record.
These claims are without merit.
Because we conclude that the trial court properly found that no genuine
issue of material fact exists that the plaintiff is the owner of the account
in question, the plaintiff easily demonstrated that it has standing. See Wilcox
v. Webster Ins., Inc., 294 Conn. 206, 214, 982 A.2d 1053 (2009) (standing
requires only ‘‘ ‘a colorable claim of injury’ ’’).
With respect to the defendant’s hearsay argument, the court’s consider-
ation of Lebental’s affidavit was proper, and in fact, required by our rules
of procedure. See Practice Book § 17-45 (‘‘[a] motion for summary judgment
shall be supported by such documents as may be appropriate, including but
not limited to affidavits’’). Moreover, the defendant has failed to show how
LeBental’s affidavit was in any way inadmissible as evidence.
8
The gravamen of the defendant’s argument that there is a genuine issue
of material fact rests on two assignment agreements that were appended
to the LeBental affidavit. These assignment agreements transferred a number
of unpaid accounts in bulk. The first, dated June 27, 2011, assigned unpaid
accounts from Chase to Global Acceptance Credit Company, LP (Global).
The second, dated June 30, 2011, assigned unpaid accounts from Global to the
plaintiff. Both assignment agreements referenced schedules that purportedly
included the specific accounts being assigned. These schedules were never
disclosed to the defendant and are not in the record. Accordingly, without the
attached schedules, the assignment agreements do not, in and of themselves,
indicate which accounts were assigned. The fact that the plaintiff has not
disclosed these schedules, however, is of no legal consequence given that
LeBental averred in her affidavit that, based on her personal knowledge
and the assignment agreements, the plaintiff was the owner of the debt,
and the defendant has failed to introduce any evidence to the contrary.
9
Practice Book § 13-24 (a) provides in relevant part: ‘‘Any matter admitted
under this section is conclusively established unless the judicial authority
on motion permits withdrawal or amendment of the admission. . . .’’