United Shoreline F.C.U. v. Juan Sanchez et al. (2011)

MEMORANDUM OF DECISION

In its one-count complaint, dated June 15, 2010, the plaintiff, United Shoreline F.C.U., alleges that the defendants, Juan Sanchez and Carmen Sanchez, borrowed monies from the plaintiff and executed a promissory note in order to purchase a motor vehicle, which was pledged as security for the note.   The plaintiff further alleges that the defendants defaulted on the note and the plaintiff took possession of the motor vehicle and sold it.   The plaintiff now seeks a deficiency judgment from the defendants pursuant to General Statutes § 36a–785.

In their answer, dated December 10, 2010, the defendants raised nine special defenses.   On January 24, 2011, the plaintiff filed a motion to strike the defendants' first, second, sixth and seventh special defenses.¹  The only special defense at issue at this point is the defendants' seventh special defense.   Therein, the defendants allege that they are not liable for a deficiency judgment because the motor vehicle was returned to the plaintiff, not repossessed, and, therefore, § 36a–785 is inapplicable.   This court disagrees.

Simply put, there is nothing in the plain language of § 36a–785 that denies a deficiency judgment when there has been a voluntary surrender of a motor vehicle.   Indeed, “voluntary surrender of a vehicle by a buyer in default may constitute a repossession by the holder of a retail [installment] contract.”   A–1 Auto Service, Inc. v. Horkavy, Superior Court, judicial district of New Haven, Docket No. CV 96 0392187 (May 24, 2001, Downey, J.);   see also Union Trust Co. of Ellsworth v. Hardy, 400 A.2d 384, 388 (Me.1979).   Accordingly, the defendant's seventh special defense is invalid.

For the foregoing reasons, the motion to strike the defendants' first, second, sixth and seventh special defenses is granted.

BY THE COURT

Jack W. Fischer, Judge

FOOTNOTES

FN1. In their first, second and sixth special defenses, the defendants allege that they are not liable for a deficiency judgment because they did not know that they may be responsible for any balance on the note because the note and turnover agreement did not so provide.   On April 4, 2011, defense counsel conceded at short calendar that his first, second and sixth special defenses should be stricken..  FN1. In their first, second and sixth special defenses, the defendants allege that they are not liable for a deficiency judgment because they did not know that they may be responsible for any balance on the note because the note and turnover agreement did not so provide.   On April 4, 2011, defense counsel conceded at short calendar that his first, second and sixth special defenses should be stricken.

Fischer, Jack W., J.