American Express Centurion Bank v. Karen J. Tierney (2010)

MEMORANDUM OF DECISION RE MOTION TO STRIKE # 101

The plaintiff, American Express Centurion Bank, brought suit seeking to recover money due on a credit card account.   In its complaint, the plaintiff alleges that the defendant, Karen J. Tierney, entered into a contractual agreement with the plaintiff for a credit card, that the defendant defaulted on the terms of the credit card, and that the defendant owes $24,753.60 on the account.   Although demand was made upon the defendant, she has refused to pay the amount due and owing to the plaintiff.

On August 4, 2010, the defendant filed a motion to strike the plaintiff's complaint, arguing that the complaint should be stricken on the ground that it fails to state a claim upon which relief can be granted and on the ground that the legal sufficiency of a prayer for relief is insufficient as a matter of law.   In support of its motion to strike, the defendant attached a collections letter from the law firm Zwicker & Associates, P.C. The plaintiff did not file a written brief in opposition, but appeared before the court at short calendar on August 23, 2010, to oppose the motion to strike.

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).  “A motion to strike challenges the legal sufficiency of a pleading ․ and, consequently, requires no factual findings by the trial court.”  (Internal quotation marks omitted.)   Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007).  “It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts are taken as admitted.”  (Internal quotation marks omitted.)  Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006).   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).

“A 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).   Accordingly, the court cannot consider the exhibit attached to the defendant's motion when determining the merit of the defendant's argument.

Essentially, the defendant argues that the court should grant her motion to strike because the firm representing the plaintiff, Zwicker & Associates, P.C., violated the Fair Debt Collections Practices Act in seeking to collect the underlying credit card debt and because the plaintiff failed to attach a copy of the original contractual agreement she allegedly entered into.   The plaintiff argues, however, that a motion to strike is the improper vehicle to raise these issues and that the defendant's arguments are better suited as special defenses and/or counterclaims.

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 the present case, the defendant's motion does not seek to challenge the legal sufficiency of the plaintiff's complaint.   Rather, the defendant seeks to challenge the plaintiff's ability to collect on the underlying debt.   As pleaded, the plaintiff has stated a legally sufficient cause of action.   If the defendant wishes to challenge the existence or enforceability of a contract, she may file the appropriate special defenses, and, thereafter, test her defenses at trial or by filing the appropriate motion and memorandum of law.   Furthermore, if the defendant wishes to assert claims against the plaintiff for violating General Statutes § 36a-805 and the Fair Debt Collections Practices Act, 15 U.S.C. § 1692 et seq., she must do so by filing the appropriate pleading.

Accordingly, the defendant's motion to strike is hereby denied.

Cosgrove, J.

Cosgrove, Emmet L., J.