Citibank (South Dakota), N.A. v. Deborah Breen (2011)

MEMORANDUM OF DECISION RE MOTION TO DISMISS (# 102)

PROCEDURAL HISTORY AND FACTUAL BACKGROUND

The present debt collection action was commenced by service of process on the self-represented defendant, Deborah Breen, on December 15, 2010.   The plaintiff, Citibank (South Dakota), N.A., has filed a complaint alleging that it extended a credit installment agreement to the defendant, that the defendant currently maintains an outstanding balance on her credit account and that the defendant has failed to make payments for the credit extended by the plaintiff.   The plaintiff further alleges that it has delivered monthly account statements to the defendant, resulting in an account stated in the amount of $9,956.56.

The defendant moved to dismiss the action for lack of subject matter jurisdiction on March 2, 2011.   Her motion is accompanied by a memorandum of law.   The plaintiff objected thereto on March 16, 2011.   The matter was initially filed as take papers, however, the court scheduled the matter for argument and the matter was heard at short calendar on April 11, 2011.

DISCUSSION

“A motion to dismiss ․ properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court.”  (Internal quotation marks omitted.)  Bacon Construction Co. v. Dept. of Public Works, 294 Conn. 695, 706, 987 A.2d 348 (2010).  “A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”   (Internal quotation marks omitted.)  Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213, 982 A.2d 1053 (2009).  “The grounds which may be asserted in [a motion to dismiss] are:  (1) lack of jurisdiction over the subject matter;  (2) lack of jurisdiction over the person;  (3) improper venue;  (4) insufficiency of process;  and (5) insufficiency of service of process.”  Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985), citing Practice Book § 143, now § 10–31.

The defendant moves to dismiss on the ground that the court lacks subject matter jurisdiction over the present action.   Broadly construing her memorandum of law in support of the motion to dismiss, the defendant appears to argue that:  (1) the plaintiff's complaint is legally insufficient in that it fails to adduce evidence to support its claims, (2) the court lacks subject matter jurisdiction over the action because the defendant has been deprived of her due process rights, (3) the plaintiff's attorney, Solomon and Solomon, P.C. (Solomon), is a third-party to the credit agreement and, thus, lacks standing to bring the present action, (4) the plaintiff has failed to comply with the defendant's request for verification of the alleged outstanding debt pursuant to the Fair Debt Collections Practices Act (FDCPA), 15 U.S.C. § 1692 et seq., (5) the plaintiff is estopped from brining the present action, (6) the plaintiff has engaged in deceptive and fraudulent acts, (7) the underlying debt has been extinguished, (8) the plaintiff has failed to allege actual loss and (9) the underlying credit agreement is void.¹

The plaintiff objects to dismissal on the ground that the defendant's motion is not directed at the jurisdiction of the court and is, thus, improper.   Specifically, the plaintiff argues that the defendant moves to dismiss based on the plaintiffs failure to adduce evidence of its claim and its counsel's failure to show that it may file an action on the plaintiff's behalf.   The plaintiff contends that it has pleaded facts sufficient to sustain a cause of action under Practice Book § 10–1 and that the Superior Court, as a court of general jurisdiction, may properly entertain a credit card collection action.

The majority of the claims raised by the defendant in her motion to dismiss are not valid jurisdictional claims.   As to the defendant's argument regarding lack of standing, the motion is denied.   Solomon, as a representative, has filed a valid appearance on behalf of the plaintiff.  Practice Book § 3–1.   Solomon is not, itself, a party to the action.   The plaintiff has alleged that it extended a line of credit to the defendant and that the defendant has defaulted thereon.  “Standing requires no more than a colorable claim of injury ․” (Internal quotation marks omitted.)  Wilcox v. Webster Ins., Inc., supra, 294 Conn. 214.   The plaintiff has pleaded facts sufficient to establish its standing to bring the present debt collection action.   See also Citibank South Dakota, N.A. v. Beckford, Superior Court, judicial district of Hartford, Docket No. CV 11 6017714 (March 1, 2011, Wagner, J.T.R.) (allegations that defendant failed to make required payments on credit card sufficient to confer standing).

The defendant's arguments related to the legal sufficiency of the plaintiff's suit are inappropriate on a motion to dismiss.   To the extent the defendant is arguing that the complaint is insufficient, “[a] motion to strike ․ rather than a motion to dismiss, is the proper vehicle to attack the legal sufficiency of a complaint.”  Caruso v. Bridgeport, 285 Conn. 618, 629–30, 941 A.2d 266 (2008).   To the extent the defendant is arguing that the plaintiff's evidence is insufficient, the argument is likewise premature.   A complaint need only “contain a plain and concise statement of the material facts on which the pleader relies, but not of the evidence by which [it is] to be proved ․” Practice Book § 10–1.

The remainder of the defendant's arguments appear to raise issues properly pleaded as special defenses and/or counterclaims.²  “[A] motion for dismissal is not generally granted when based on a special defense ․” (Citation omitted;  internal quotation marks omitted.)  Sullivan v. Thorndike, 104 Conn.App. 297, 310, 934 A.2d 827 (2007);  see also Practice Book §§ 10–10, 10–50, 10–54.³  Thus, the court cannot consider these arguments at this stage.   Accordingly, the defendant's motion to dismiss is denied.   The defendant should file an answer to include any special defenses and/or counterclaims.

Wilson, J.

FOOTNOTES

FN1. “[I]t is the established policy of the Connecticut courts to be solicitous of pro se litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the pro se party.”  (Internal quotation marks omitted.)   American Express Centurion Bank v. Head, 115 Conn.App. 10, 11 n.1, 971 A.2d 90 (2009).   Moreover, “[t]he modern trend, which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically ․ [T]he [pleading] must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded ․” (Internal quotation marks omitted.)  Montanaro v. Gorelick, 73 Conn.App. 319, 324, 807 A.2d 1083 (2002)..  FN1. “[I]t is the established policy of the Connecticut courts to be solicitous of pro se litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the pro se party.”  (Internal quotation marks omitted.)   American Express Centurion Bank v. Head, 115 Conn.App. 10, 11 n.1, 971 A.2d 90 (2009).   Moreover, “[t]he modern trend, which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically ․ [T]he [pleading] must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded ․” (Internal quotation marks omitted.)  Montanaro v. Gorelick, 73 Conn.App. 319, 324, 807 A.2d 1083 (2002).

FN2. See 2 Connecticut Practice Series:  Civil Practice Forms (4th Ed.2004) § 105 et seq..  FN2. See 2 Connecticut Practice Series:  Civil Practice Forms (4th Ed.2004) § 105 et seq.

FN3. Practice Book § 10–10 provides in relevant part:  “In any action for legal or equitable relief, any defendant may file counterclaims against any plaintiff and cross claims against any codefendant provided that each such counterclaim and cross claim arises out of the transaction or one of the transactions which is the subject of the plaintiff's complaint ․”Practice Book § 10–50 provides:  “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.   Thus, accord and satisfaction, arbitration and award, coverture, duress, fraud, illegality not apparent on the face of the pleadings, infancy, that the defendant was non compos mentis, payment (even though nonpayment is alleged by the plaintiff), release, the statute of limitations and res judicata must be specially pleaded, while advantage may be taken, under a simple denial, of such matters as the statute of frauds, or title in a third person to what the plaintiff sues upon or alleges to be the plaintiff's own.”Practice Book § 10–54 provides:  “In any case in which the defendant has either in law or in equity or in both a counterclaim, or right of setoff, against the plaintiff's demand, the defendant may have the benefit of any such setoff or counterclaim by pleading the same as such in the answer, and demanding judgment accordingly;  and the same shall be pleaded and replied to according to the rules governing complaints and answers.  (See General Statutes §§ 52–139 to 52–142.)”.  FN3. Practice Book § 10–10 provides in relevant part:  “In any action for legal or equitable relief, any defendant may file counterclaims against any plaintiff and cross claims against any codefendant provided that each such counterclaim and cross claim arises out of the transaction or one of the transactions which is the subject of the plaintiff's complaint ․”Practice Book § 10–50 provides:  “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.   Thus, accord and satisfaction, arbitration and award, coverture, duress, fraud, illegality not apparent on the face of the pleadings, infancy, that the defendant was non compos mentis, payment (even though nonpayment is alleged by the plaintiff), release, the statute of limitations and res judicata must be specially pleaded, while advantage may be taken, under a simple denial, of such matters as the statute of frauds, or title in a third person to what the plaintiff sues upon or alleges to be the plaintiff's own.”Practice Book § 10–54 provides:  “In any case in which the defendant has either in law or in equity or in both a counterclaim, or right of setoff, against the plaintiff's demand, the defendant may have the benefit of any such setoff or counterclaim by pleading the same as such in the answer, and demanding judgment accordingly;  and the same shall be pleaded and replied to according to the rules governing complaints and answers.  (See General Statutes §§ 52–139 to 52–142.)”

Wilson, Robin L., J.