Midland Funding, LLC v. Mitchell-James ( 2016 )

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MIDLAND FUNDING, LLC v. ANTELL
MITCHELL-JAMES
(AC 37697)
DiPentima, C. J., and Beach and Sheldon, Js.
Submitted on briefs October 9, 2015—officially released March 15, 2016
(Appeal from Superior Court, judicial district of
Fairfield, Radcliffe, J.)
Antell Mitchell-James, self-represented, the appellant
(defendant), filed a brief.
Jeanine M. Dumont filed a brief for the appellee
(plaintiff).
Opinion
DiPENTIMA, C. J. The self-represented defendant,
Antell Mitchell-James, appeals from the summary judg-
ment rendered in favor of the plaintiff, Midland Funding,
LLC. On appeal, the defendant claims that the trial court
improperly concluded that there was no genuine issue
of material fact regarding the plaintiff’s ownership of
the debt that is the subject of the complaint.1 We agree
and, accordingly, reverse the judgment of the trial court.
The record reveals the following relevant facts and
procedural history. On December 10, 2013, the plaintiff
commenced this action, alleging in a two count com-
plaint that the defendant (1) defaulted on her credit
card account and became indebted to Chase Bank USA,
N.A. (Chase), in the sum of $24,086.46, and (2) was
liable for the account stated. The plaintiff also alleged
that it had ‘‘purchased title to this debt on [June 30,
2011] for valuable consideration and as such is the bona
fide owner of the debt.’’ The defendant responded by
filing a motion to dismiss, which was denied, followed
by a motion to strike both counts, which also was
denied.
In March, 2014, the plaintiff served the defendant
with requests for admission. The defendant responded
to the plaintiff’s requests for admission in June, 2014,
admitting, in relevant part, to using and making pay-
ments on an unspecified Chase credit card account.
She did not, however, admit to any information specific
to the account in question. Ultimately, on August 4,
2014, the defendant answered the complaint, alleging
that she was ‘‘without knowledge or information suffi-
cient to form a belief as to the truth of the allega-
tions . . . .’’
On December 1, 2014, the plaintiff filed a motion for
summary judgment as to liability and damages. The
plaintiff appended to the motion the sworn affidavit of
a ‘‘legal specialist,’’ Tamra Stayton, who was employed
by another business, Midland Credit Management, Inc.,
that purportedly was the ‘‘servicer of [the defendant’s]
account on behalf of [the plaintiff].’’ Stayton averred
that the defendant had defaulted on the subject credit
card account and that the plaintiff was the current
owner of the debt, entitling it to collect the $24,086.46
owed on the account. Accompanying Stayton’s affidavit
were eighteen copies of monthly credit card statements
of the subject account for the period of April, 2008
through October, 2009, a ‘‘field data sheet’’ with infor-
mation relating to the defendant’s alleged debt, e.g.,
her name and amount owed, and a bill of sale that
documented the alleged sale of unpaid credit card
accounts from Chase to the plaintiff.
The defendant filed an opposition to the plaintiff’s
motion for summary judgment, arguing that genuine
issues of material fact existed. The defendant claimed,
inter alia, that the affidavit supporting the plaintiff’s
motion contained hearsay that did not fall within the
business records exception to the rule against hearsay
pursuant to General Statutes § 52-180. The defendant
also argued that the plaintiff, without ‘‘establish[ing]
that it [was] the bona fide owner of the account in
question,’’ could not ‘‘step into the shoes of the original
creditor, Chase . . . .’’ (Internal quotation marks omit-
ted.) Of note, appended to the defendant’s memoran-
dum of law was a letter that purportedly was sent to
her by Midland Credit Management, Inc., notifying her
that the plaintiff had purchased her Chase account and
that she owed $24,112.85 to the plaintiff.
The plaintiff replied with a supplemental memoran-
dum of law in support of its motion for summary judg-
ment. Although largely repetitive of its original
memorandum of law, the plaintiff addressed the defen-
dant’s claim that the affidavit contained inadmissible
hearsay. Citing to case law and our rules of practice,
the plaintiff argued that the submitted affidavit fell
within the ambit of the business records exception to
the hearsay rule. With the supplemental memorandum
of law, the plaintiff also submitted an affidavit from
Martin Lavergne, an officer of JPMorgan Chase Bank,
N.A., who averred that he was authorized by Chase to
submit the affidavit. Lavergne further averred that
Chase sold a ‘‘pool of charged-off accounts’’ to the plain-
tiff, and, as part of the sale, ‘‘electronic records and
other records on individual accounts included in the
[pool of charged-off accounts] were transferred to [the
plaintiff].’’ Lavergne affirmed that he was ‘‘aware of the
process of the sale and assignment of electronically
stored business records,’’ and averred, without elabo-
rating as to the basis for his averment, that he was ‘‘not
aware of any errors in the [pool of charged-off
accounts].’’
After a hearing on January 26, 2015, the court granted
the plaintiff’s motion for summary judgment, finding ‘‘a
proper account stated of $24,086.46.’’ This appeal
followed.
On appeal, the defendant claims that the court
improperly granted the plaintiff’s motion for summary
judgment. Specifically, the defendant argues that Stay-
ton’s affidavit failed to provide the ‘‘evidentiary founda-
tion for the documents submitted [by the plaintiff] as
business records.’’ Consequently, the defendant argues,
the plaintiff ‘‘never established that it was the successor
in interest to the account in question’’;2 thus, the court
erred in rendering summary judgment because a genu-
ine issue of material fact existed as to whether the
plaintiff owned the defendant’s charged-off account.
We agree.
As a preliminary matter, we set forth the standard
of review. The parties agree that plenary review is the
appropriate standard. Generally, ‘‘[o]ur review of the
trial court’s decision to grant the . . . motion for sum-
mary judgment is plenary. . . . On appeal, we must
determine whether the legal conclusions reached by
the trial court are legally and logically correct . . . .’’
(Internal quotation marks omitted.) American Express
Centurion Bank v. Head, 115 Conn. App. 10, 15, 971
A.2d 90 (2009). When presented with an evidentiary
issue, as in this case, our standard of review ‘‘depends
on the specific nature of the claim presented.’’ State v.
Smith, 289 Conn. 598, 617, 960 A.2d 993 (2008). Thus,
‘‘[t]o the extent a trial court’s admission of evidence is
based on an interpretation of [law], our standard of
review is plenary. For example, whether a challenged
statement properly may be classified as hearsay and
whether a hearsay exception properly is identified are
legal questions demanding plenary review.’’ (Internal
quotation marks omitted.) Id.A trial court’s decision to admit evidence, if premised
on a correct view of the law, however, calls for the
abuse of discretion standard of review. Id.; see also
Nash v. Stevens, 144 Conn. App. 1, 15–16, 71 A.3d 635(applying abuse of discretion standard in reviewing evi-
dentiary issue in appeal from grant of summary judg-
ment), cert. denied, 310 Conn. 915, 76 A.3d 628 (2013);
Bruno v. Geller, 136 Conn. App. 707, 716, 46 A.3d 974(same), cert. denied, 306 Conn. 905, 52 A.3d 732 (2012).
‘‘In other words, only after a trial court has made the
legal determination that a particular statement is or is
not hearsay, or is subject to a hearsay exception, is it
vested with the discretion to admit or to bar the evi-
dence based upon relevancy, prejudice, or other legally
appropriate grounds related to the rule of evidence
under which admission is being sought. . . . A para-
digmatic example of this distinction would be a trial
court’s conclusion that a hearsay statement bears the
requisite indicia of trustworthiness and reliability nec-
essary for admission under the residual exception to
the hearsay rule, which would be reviewed for an abuse
of discretion. . . . By contrast, the question of whether
the trial court properly could have admitted that state-
ment under the residual exception if the admission of
that type of statement expressly was barred under
another hearsay exception would present a question of
law over which the appellate courts exercise plenary
review.’’ (Internal quotation marks omitted.) State v.
Smith, supra, 289 Conn. 617–18.
Unfortunately, here, we have no memorandum of
decision from the court to help us determine the precise
basis of the court’s decision to grant the motion for
summary judgment. Nevertheless, we may infer that for
the court to have rendered summary judgment, it must
have concluded that the hearsay contained in the plain-
tiff’s affidavit supporting its motion fell within the busi-
ness records exception to the rule against hearsay.
Therefore, whether the court applied the correct legal
test to admit computer generated business records
under a hearsay exception is a ‘‘legal [question]
demanding plenary review.’’ (Internal quotation marks
omitted.) Id., 617.
A party seeking summary judgment has the consider-
able burden of demonstrating the absence of any genu-
ine issue of material fact because ‘‘litigants ordinarily
have a constitutional right to have issues of fact decided
by a [trier of fact] . . . .’’ (Citation omitted.) Town
Bank & Trust Co. v. Benson, 176 Conn. 304, 307, 407
A.2d 971 (1978). Thus, ‘‘[i]n 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 evi-
dence must be viewed in the light most favorable to
the opponent. . . . When documents submitted in sup-
port of a motion for summary judgment fail to establish
that there is no genuine issue of material fact, the non-
moving party has no obligation to submit documents
establishing the existence of such an issue.’’ (Emphasis
omitted; internal quotation marks omitted.) American
Express Centurion Bank v. Head, supra, 115 Conn.
App. 14–15; see also Practice Book § 17-49.
Only evidence that would be admissible at trial may
be used to support or oppose a motion for summary
judgment. See Great Country Bank v. Pastore, 241
Conn. 423, 436, 696 A.2d 1254 (1997). Practice Book
§ 17-46 provides in relevant part that ‘‘affidavits shall
be made on personal knowledge, shall set forth such
facts as would be admissible in evidence, and shall show
affirmatively that the affiant is competent to testify to
the matters stated therein. . . .’’ See, e.g., 12 Havem-
eyer Place Co., LLC v. Gordon, 93 Conn. App. 140, 157,
888 A.2d 141 (2006) (explaining that ‘‘affidavit [that]
does not contain admissible evidence as required by
our rules of practice . . . is therefore insufficient to
oppose a motion for summary judgment’’). Moreover,
affidavits must be accompanied by ‘‘[s]worn or certified
copies of all papers or parts thereof referred to in an
affidavit . . . .’’ Practice Book § 17-46.
Hearsay is an out-of-court statement offered to prove
the truth of the matter asserted. See Connecticut
Bank & Trust Co. v. Reckert, 33 Conn. App. 702, 708,
638 A.2d 44 (1994). ‘‘Unless subject to an exception,
hearsay is inadmissible.’’ Id. If the proffered evidence
consists of business records, the court must determine
whether the documents satisfy the ‘‘ ‘modest require-
ments’ ’’ under § 52-1803 to admit them under the busi-
ness records exception to the hearsay rule. Federal
Deposit Ins. Corp. v. Carabetta, 55 Conn. App. 369, 374,
739 A.2d 301, cert. denied, 251 Conn. 927, 742 A.2d
362 (1999). When the proffered business records are
computer generated, however, the proffering party
must satisfy a two part test.
First, the proponent must satisfy the statutory
requirements of the business records exception to the
hearsay rule. See id., 376. ‘‘To admit evidence under
the business record exception to the hearsay rule, a
trial court judge must find that the record satisfies each
of the three conditions set forth in General Statutes
§ 52-180. The court must determine, before concluding
that it is admissible, that the record was made in the
regular course of business, that it was in the regular
course of such business to make such a record, and
that it was made at the time of the act described in the
report, or within a reasonable time thereafter. . . . To
qualify a document as a business record, the party offer-
ing the evidence must present a witness who testifies
that these three requirements have been met.’’ (Internal
quotation marks omitted.) Emigrant Mortgage Co. v.
D’Agostino, 94 Conn. App. 793, 807, 896 A.2d 814, cert.
denied, 278 Conn. 919, 901 A.2d 43 (2006); see also
Conn. Code Evid. § 8-4 (a).
Second, the proponent of the computer generated
business records ‘‘must establish that the basic ele-
ments of the computer system are reliable.’’ Federal
Deposit Ins. Corp. v. Carabetta, supra, 55 Conn. App.
376. The genesis of the second part of the test dates
back to American Oil Co. v. Valenti, 179 Conn. 349,
358–59, 426 A.2d 305 (1979), in which our Supreme
Court noted that ‘‘[b]usiness records that are generated
by computers present structural questions of reliability
that transcend the reliability of the underlying informa-
tion that is entered into the computer. Computer
machinery may make errors because of malfunctioning
of the hardware, the computer’s mechanical apparatus.
Computers may also, and more frequently, make errors
that arise out of defects in the software, the input proce-
dures, the data base, and the processing program. . . .
In view of the complex nature of the operation of com-
puters and general lay unfamiliarity with their opera-
tion, courts have been cautioned to take special care
to be certain that the foundation is sufficient to warrant
a finding of trustworthiness and that the opposing party
has full opportunity to inquire into the process by which
information is fed into the computer.’’ (Citations omit-
ted; internal quotation marks omitted.)
Satisfying this additional layer of scrutiny of com-
puter generated business records is essential but not
onerous. ‘‘[I]t is not necessary to produce as a witness
the keypunch operator who actually entered informa-
tion into the computer or the programmer who designed
the processing program. . . . While a witness from the
computer department may well be the optimal propo-
nent of such evidence, such a person may not always
be available to testify. What is crucial is not the witness’
job description but rather his knowledgeability about
the basic elements that afford reliability to computer
print-outs. . . . The witness must be a person who is
familiar with computerized records not only as a user
but also as someone with some working acquaintance
with the methods by which such records are made.’’
(Citation omitted.) Id., 360–61.4
With these principles in mind, we turn to the disposi-
tive issue of whether evidence submitted by the plaintiff
eliminated any issue of fact as to the ownership of
the defendant’s debt. We conclude that the plaintiff’s
evidence did not establish it as the owner of the debt
and, therefore, the court improperly rendered sum-
mary judgment.
On the basis of the record, the plaintiff attempted to
establish ownership of the defendant’s debt through
four documents. The first and most important docu-
ment to the plaintiff’s motion was Stayton’s affidavit
averring that the plaintiff owned the defendant’s debt.
As proof of this ownership and to satisfy the require-
ments of Practice Book § 17-46, the plaintiff submitted
the second and third documents, i.e., the bill of sale
and Lavergne’s affidavit.5 As to the debt in question,
Stayton’s affidavit averred that the defendant opened
a credit card account with Chase on April 25, 2002, that
the last payment of $50 on this account was made on
June 7, 2009, and that the account was charged-off on
October 30, 2009. Stayton’s affidavit also averred that
the amount of the defendant’s debt was $24,086.46. To
support these claims, the plaintiff submitted a fourth
document, the ‘‘field data sheet.’’6 Despite these four
documents, the plaintiff failed to demonstrate that there
was no genuine issue of material fact as to the owner-
ship of the defendant’s debt because Stayton’s affidavit
did not establish that the plaintiff’s computer system
that generated the business records was reliable.
Although Stayton’s affidavit averred that her state-
ments were ‘‘based upon personal knowledge of those
account records maintained on [the] plaintiff’s behalf,’’
asserted that she was ‘‘familiar with and trained on the
manner and method by which [Midland Credit Manage-
ment, Inc.] create[d] and maintain[ed] its business
records pertaining to this account,’’ and recited the
statutory requirements of § 52-180,7 the affidavit did
not ‘‘establish that the basic elements of the computer
system [were] reliable.’’ Federal Deposit Ins. Corp. v.
Carabetta, supra, 55 Conn. App. 376. Heeding our
Supreme Court’s caveat that ‘‘[c]omputers may . . .
make errors that arise out of defects in the ‘software,’
the input procedures, the data base, and the processing
program’’; American Oil Co. v. Valenti, supra, 179 Conn.
359; we conclude that it was incumbent on the plaintiff
to produce an affidavit from ‘‘a person who is familiar
with computerized records not only as a user but also
as someone with some working acquaintance with the
methods by which such records are made’’; id., 361; to
establish the reliability of the plaintiff’s computer
system.8
We conclude that Stayton’s affidavit did not satisfy
the second part of the two part test as presented in
Federal Deposit Ins. Corp. v. Carabetta, supra, 55 Conn.
App. 376. Unlike the testimony of the witness in First
Union National Bank v. Woermer, 92 Conn. App. 696,
887 A.2d 893 (2005), cert. denied, 277 Conn. 914, 895
A.2d 788 (2006), whom the trial court had determined
was qualified to authenticate the document at issue;
see footnote 4 of this opinion; Stayton’s affidavit did
not suggest that she understood how Chase transmitted
the ‘‘electronically stored business records’’ to the plain-
tiff or how the plaintiff processed the electronic records
to create computer generated business records that
somehow resided with her employer, Midland Credit
Management, Inc. In short, Stayton’s affidavit did not
establish that the plaintiff’s computer systems were
reliable. Accordingly, the plaintiff failed to meet the
court’s ‘‘strict standard’’ of ‘‘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’’; (internal quotation marks omitted) American
Express Centurion Bank v. Head, supra, 115 Conn.
App. 15; as to whether the plaintiff not only owned
a ‘‘pool of charged-off accounts,’’ but also owned the
defendant’s debt. Thus, Stayton’s affidavit was not suffi-
cient to admit the attached computer generated docu-
ments under the business records exception to the
hearsay rule. Without that evidence, the plaintiff failed
to sustain its burden of establishing that it owned the
defendant’s debt. Because of this failure, we conclude
that the plaintiff failed to establish that there was no
genuine issue of material fact as to its ownership of
the defendant’s alleged debt.
Finally, ‘‘[w]e do not suggest that defendants who
default on their credit card payments can defeat a sum-
mary judgment motion simply by denying that [the cred-
itor does not own the debt]. 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.’’
American Express Centurion Bank v. Head, supra, 115
Conn. App. 17–18. Here, the plaintiff failed to meet its
burden of establishing the absence of a genuine issue
of material fact as to the factual basis for its claim of
ownership of the defendant’s alleged debt. Thus, the
court erred in concluding that the plaintiff was entitled
to judgment against the defendant as a matter of law.
Accordingly, we reverse the judgment of the trial court.
The judgment is reversed and the case is remanded
with direction to deny the plaintiff’s motion for sum-
mary judgment and for further proceedings according
to law.
In this opinion the other judges concurred.
1
The defendant also raised additional issues on appeal, namely, that the
plaintiff violated her privacy rights, lacked standing, violated federal and
state law, and that the court denied her ‘‘equal and just treatment’’ in violation
of the fifth and fourteenth amendments to the federal constitution. Although
we are solicitous of the rights of self-represented litigants; see Cragg v.
Administrator, Unemployment Compensation Act, 160 Conn. App. 430, 443
n.9, 125 A.3d 650 (2015); this court is ‘‘not required to review claims that
are inadequately briefed.’’ (Internal quotation marks omitted.) Paoletta v.
Anchor Reef Club at Branford, LLC, 123 Conn. App. 402, 406, 1 A.3d 1238,
cert. denied, 298 Conn. 931, 5 A.3d 491 (2010).
2
At the January, 2015 hearing, the defendant succinctly argued to the
court that the issue was not ‘‘whether [she] had an account with Chase or not
. . . [the] issue [was] . . . whether [the plaintiff had] the right to collect on
this account.’’
3
General Statutes § 52-180 provides in relevant part: ‘‘(a) Any writing or
record, whether in the form of an entry in a book or otherwise, made as a
memorandum or record of any act, transaction, occurrence or event, shall
be admissible as evidence of the act, transaction, occurrence or event, if
the trial judge finds that it was made in the regular course of any business,
and that it was the regular course of the business to make the writing or
record at the time of the act, transaction, occurrence or event or within a
reasonable time thereafter.
‘‘(b) The writing or record shall not be rendered inadmissible by (1) a
party’s failure to produce as witnesses the person or persons who made the
writing or record, or who have personal knowledge of the act, transaction,
occurrence or event recorded or (2) the party’s failure to show that such
persons are unavailable as witnesses. Either of such facts and all other
circumstances of the making of the writing or record, including lack of
personal knowledge by the entrant or maker, may be shown to affect the
weight of the evidence, but not to affect its admissibility. . . .’’
4
Our analysis in First Union National Bank v. Woermer, 92 Conn. App.
696, 887 A.2d 893 (2005), cert. denied, 277 Conn. 914, 895 A.2d 788 (2006),
illustrates how a party offering computer generated business records satis-
fied the two part test. This case was a foreclosure action in which ‘‘Cen-
terbank merged with and into First Union Bank of Connecticut. First Union
Bank of Connecticut then merged with and became First Union National
Bank (First Union), which . . . [ultimately] assigned all loan documents
on the defendants’ loan to the [substitute] plaintiff, [EMC Mortgage Corpora-
tion], as part of a bulk sale of loans . . . .’’ Id., 698.
On appeal, the defendants claimed, inter alia, that the ‘‘court improperly
admitted exhibit seven into evidence because the plaintiff failed to authenti-
cate that document as a record of Centerbank or First Union.’’ Id., 706.
Exhibit seven was the ‘‘defendants’ mortgage history from Centerbank gener-
ated by the [payment processing] computer system, which [was] the system
used by Centerbank and First Union when Centerbank merged into First
Union.’’ Id., 706. The plaintiff presented testimony from a ‘‘former employee
of Centerbank and First Union.’’ Id., 706–707. The witness not only testified
to the statutory requirements of § 52-180, but also stated that ‘‘she personally
utilized the computer system that generated the document to obtain informa-
tion relating to loans owned or serviced by Centerbank, that it was the same
computer system utilized by First Union after the merger and that the bank
computer system was reliable.’’ Id., 707. Although the witness conceded
that she had not prepared the report or ‘‘had [any] responsibility in connec-
tion with the defendants’ loan’’; id.; this court on review held that the witness
was qualified to authenticate exhibit seven because she was ‘‘very familiar
with the records and the [payment processing] computer system used by
Centerbank and First Union, because she had been an employee of both
institutions for several years and had worked extensively with the computer
system.’’ Id., 709.
5
The bill of sale bears the logo of ‘‘CHASE’’ and purports to document
a sale of charged-off accounts between Chase, as the seller, and the plaintiff,
as the purchaser, with a closing date of June 30, 2011. According to this
document, Chase ‘‘assign[ed] . . . all rights, title and interest of [Chase] in
and to those certain receivables, judgments or evidences of debt described
in the Final Data File, entitled (Account’s Primary File Name) attached
hereto and made part hereof for all purposes.’’ The document goes on to
state that ‘‘[w]ith respect to account information for the Accounts listed in
the Final Data File, [Chase] represents and warrants to [the plaintiff] that
. . . the . . . information is complete and accurate . . . .’’ Tellingly, the
bill of sale makes no specific reference to the defendant’s account. Nonethe-
less, because it was never explicitly stated by Stayton or briefed by the
plaintiff, it can be inferred that the ‘‘Final Data File’’ purportedly contained
the defendant’s account information that somehow was electronically trans-
ferred to the plaintiff but ultimately resided with Midland Credit Manage-
ment, Inc.
In an apparent effort to buttress the information provided in the bill
of sale, the plaintiff submitted Lavergne’s affidavit with a supplemental
memorandum of law in support of the motion for summary judgment. His
affidavit claimed that he was aware that Chase sold and assigned ‘‘electroni-
cally stored business records’’ by selling a ‘‘pool of charged-off accounts’’
to the plaintiff. Lavergne averred that ‘‘records on individual accounts in
the [pool of charged-off accounts] were transferred to [the plaintiff].’’ Like
the bill of sale, Lavergne’s affidavit made no specific reference to the defen-
dant’s account, which leads us to infer that the plaintiff submitted this
affidavit to suggest that the defendant’s account was sold as part of the
‘‘pool of charged-off accounts’’ that ultimately ended in the records of Mid-
land Credit Management, Inc.
6
The ‘‘field data sheet’’ contains a footnote stating that the data was
‘‘printed by Midland Credit Management, Inc. from electronic records pro-
vided by [Chase] pursuant to the Bill of Sale / Assignment of Accounts dated
[June 30, 2011] . . . .’’
7
The record reveals that Stayton’s assertions are questionable. One dis-
crepancy is the last payment date. According to Stayton, the defendant
submitted a final payment of $50 on June 7, 2009. The credit card account
statement, however, covering the period from May 21, 2009 through June
20, 2009—that was provided by the plaintiff—shows the last payment date
as June 8. Another problem not addressed by the plaintiff either in its motion
for summary judgment or on appeal, is the debt amount. In her objection
to the motion for summary judgment, the defendant submitted a letter dated
June 8, 2011, that was purportedly sent by Midland Credit Management,
Inc., indicating that the defendant’s debt was in the amount of $24,112.85,
which is slightly more than what Stayton’s affidavit claimed. These potential
discrepancies, if nothing else, indicate that the records of Midland Credit
Management, Inc., may contain errors and illustrate the necessity for the
two part test for computer generated business records.
8
We note that the plaintiff’s argument assumes that Stayton’s affidavit
and supporting documents met its burden on a motion for summary judg-
ment. The plaintiff argues on appeal that because the ‘‘defendant failed to
produce any evidence to controvert the plaintiff’s motion or . . . [submit
a counteraffidavit],’’ there was no genuine issue of material fact, thereby
affording the court ‘‘little choice but to grant’’ its motion for summary
judgment. To be sure, when the moving party seeking summary judgment
meets its burden, ‘‘the opposing party must present evidence that demon-
strates the existence of some disputed factual issue.’’ (Internal quotation
marks omitted.) Marinos v. Poirot, 308 Conn. 706, 712, 66 A.3d 860 (2013).
However, ‘‘[w]hen 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.’’ (Emphasis added; internal quotation marks
omitted.) Id.