CUDA LLC v. John Montmeat (2010)

REVISED MEMORANDUM OF DECISION MOTION TO STRIKE # 109

Facts

The plaintiff, CUDA & Associates, LLC, commenced this action against defendant, John Montmeat, attempting to collect a debt.   By complaint dated February 17, 2010, the plaintiff alleges the following facts.   Bank of America issued a credit card to the defendant and the defendant borrowed a sum of $22,858.57 and accrued interest charges totaling $8,858.07.   The plaintiff now owns this debt.   Written demand for payment was made, but the defendant has refused to pay.   The complaint consists of two counts, sounding in breach of contract and account stated.   On March 17, 2009, the defendant filed an answer and special defenses.

Before the court is the defendant's motion to strike the complaint dated June 14, 2010.   The defendant moves to strike the complaint on the ground that the plaintiff does not own the alleged debt and does not have the necessary proof to support its allegations.   The plaintiff filed an objection on July 1, 2010.   This court heard oral argument at the short calendar on July 7, 2010.

Discussion

“The purpose of a motion to strike is to contest ․ the legal sufficiency of the allegations of any complaint ․ to state a claim upon which relief can be granted.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).  “[F]or the purpose of a motion to strike, the moving party admits all facts well pleaded.”  RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 383 n.2, 650 A.2d 153 (1994).   Accordingly, “[i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.”  (Internal quotation marks omitted.)  American Progressive Life & Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009).   When ruling on a motion in strike, the court must “construe the complaint in the manner most favorable to sustaining its legal sufficiency.”  (Internal quotation marks omitted.)  Id.

“[Al motion to strike is essentially a procedural motion that focuses solely on the pleadings ․ It is, therefore, improper for the court to consider material outside of the pleading that is being challenged by the motion.”   (Internal quotation marks omitted.)  Tracy v. New Milford Public Schools, 101 Conn.App. 560, 566, 922 A.2d 280, cert. denied, 284 Conn. 910, 931 A.2d 935 (2007).  “A speaking motion to strike is one improperly importing facts from outside the pleadings.”  Mercer v. Cosley, 110 Conn.App. 283, 292 n.7, 955 A.2d 550 (2008).

The defendant argues that the court should grant his motion to strike because the documents that the plaintiff has produced as a result of the defendant's discovery requests are inadequate to demonstrate that the plaintiff owns the debt that it is attempting to collect.   The plaintiff responds that a motion to strike is an inappropriate motion to raise this claim.¹

The defendant is self-represented.  “[Our courts have] always been solicitous of the rights of [self-represented] litigants and ․ will endeavor to see that such a litigant shall have the opportunity to have his case fully and fairly heard so far as such latitude is consistent with the just rights of any adverse party ․ Although we will not entirely disregard our rules of practice, we do give great latitude to [self-represented] litigants in order that justice may both be done and be seen to be done ․ For justice to be done, however, any latitude given to [self-represented] litigants cannot interfere with the rights of other parties, nor can we disregard completely our rules of practice.”   (Internal quotation marks omitted.)  Marlow v. Starkweather, 113 Conn.App. 469, 473, 966 A.2d 770 (2009).

In his motion, the defendant maintains that the evidence that the plaintiff submitted in response to his discovery requests does not prove that Bank of America validly assigned the debt to the defendant.   A motion to strike admits all facts well pleaded.   The defendant cannot simultaneously admit all facts well pleaded and dispute whether the plaintiff owns the debt.   Accordingly, a motion to strike is not the appropriate procedural vehicle to test this claim.   To permit the defendant to raise this claim in this motion would require the court to completely disregard the rules of practice.

“Generally speaking, facts must be pleaded as a special defense when they are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action.  Practice Book § 10-50 ․ The fundamental purpose of a special defense, like other pleadings, is to apprise the court and opposing counsel of the issues to be tried, so that basic issues are not concealed until the trial is underway.”  (Citation omitted;  internal quotation marks omitted.)  Almada v. Wausau Business Ins. Co., 274 Conn. 449, 456, 876 A.2d 535 (2005).²

The court notes that the defendant has filed an answer and special defenses in which he similarly challenges whether the plaintiff owns the debt.   Therein, the defendant denies each allegation of the complaint.   Further, the defendant alleges in his special defense that the plaintiff cannot show an unbroken chain of ownership of the claimed assignment stretching back to the original creditor, Bank of America.   The defendant has thereby apprised the court and opposing counsel of the issues to be tried.   The defendant may test his defense at trial or by filing the appropriate motion, memorandum of law and accompanying exhibits.

The defendant's motion to strike is denied.

The Court

Cosgrove, J.

FOOTNOTES

FN1. The defendant does not argue that the defendant waived his right to file a motion to strike by first filing an answer and special defenses.   Section 10-6 of the Practice Book designates the order of pleadings.   It provides that a motion to strike precedes an answer and special defenses.   Section 10-7 provides that any pleading waives the right to file any pleading which may have preceded it in the order of pleadings provided in § 10-6..  FN1. The defendant does not argue that the defendant waived his right to file a motion to strike by first filing an answer and special defenses.   Section 10-6 of the Practice Book designates the order of pleadings.   It provides that a motion to strike precedes an answer and special defenses.   Section 10-7 provides that any pleading waives the right to file any pleading which may have preceded it in the order of pleadings provided in § 10-6.

FN2. Practice Book § 10-50 provides in relevant part:  “No facts may be proved under either a general or special denial except such as show that the plaintiff's statements of fact are untrue.   Facts which are consistent with such statements but show, notwithstanding, that the plaintiff has no cause of action, must be specially alleged.”.  FN2. Practice Book § 10-50 provides in relevant part:  “No facts may be proved under either a general or special denial except such as show that the plaintiff's statements of fact are untrue.   Facts which are consistent with such statements but show, notwithstanding, that the plaintiff has no cause of action, must be specially alleged.”

Cosgrove, Emmet L., J.