James Mosley v. LLC (2011)

MEMORANDUM OF DECISION RE MOTION TO STRIKE # 105

Facts and Procedural History

The present motion to strike arises from the January 28, 2011 amended complaint filed by the plaintiff, James Mosley, against the defendant, Green Tree Servicing, LLC. The plaintiff's original three-count complaint was filed on September 24, 2010.   In his amended single-count complaint, the plaintiff alleges that the defendant violated the Connecticut Creditor's Collection Practices Act (“CCPA”), General Statutes § 36a–645 et seq.   The plaintiff alleges damages as a result of the defendant's efforts to collect a debt, not from the plaintiff himself, but from the plaintiff's son, Thomas Mosley.

Specifically, the plaintiff alleges:  “The defendants called the plaintiff's home telephone repeatedly several times a month over the period of about two years in an attempt to collect debt owed by the plaintiff's son named Thomas Mosley ․ The plaintiff is not a co-signer to Thomas Mosley's debt ․ The plaintiff informed the defendants repeatedly that he was not Thomas Mosley and that Thomas Mosley did not reside there ․ The defendants called the plaintiff repeatedly about the debt at his home telephone and refused to identify themselves despite the plaintiff's repeated requests ․ The defendants left voice messages on the plaintiff's telephone stating that the message was for Thomas Mosley and they called about his debt ․ The defendants talked to the plaintiff's wife when they called the plaintiff's home telephone and demanded to speak to Thomas Mosley, stating that they knew he was there because they talked to him before ․ The defendants have been very rude and condescending when they called the plaintiff at his home telephone and stated that plaintiff was being ‘nosy’ when the plaintiff questioned the defendants why they kept calling him about the debt he did not owe and kept claiming he was Thomas Mosley ․ The defendants called the plaintiff and stated they would take the plaintiff to court and the plaintiff would be responsible for court costs and attorneys fees.

In sum, the plaintiff alleges:  “The defendants placed numerous and repetitive calls to the plaintiff and engaged in harassing practices to collect the debt in violation of § 36a–646 ․ The defendants used rude and abusive language when speaking to the plaintiff in violation of § 36a–646 ․ The defendants threatened legal action when speaking to the plaintiff in violation of § 36a–646 ․ The plaintiff is entitled to damages as a result of the defendants' violations.”

The defendant filed its motion to strike and memorandum in support on February 4, 2011.   The plaintiff filed his objection and memorandum in opposition on March 10, 2011.   The parties appeared for oral argument at short calendar on March 14 2011.

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).  “If any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action ․ the complaint is not vulnerable to a motion to strike.”   Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991).

The defendant argues that the plaintiff's complaint should be stricken because the plaintiff is not a debtor within the meaning of CCPA. Additionally, the defendant contends that CCPA does not allow for a private cause of action.   The plaintiff counters that CCPA provides relief to persons harmed by a creditor irrespective of the consumer debtor-creditor relationship and further, that because CCPA mirrors the Federal Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., it allows for a private cause of action.

Section 36a–646 states:  “No creditor shall use any abusive, harassing, fraudulent, deceptive or misleading representation, device or practice to collect or attempt to collect any debt.”   The issue as to whether there exists a private cause of action pursuant to the CCPA has never been expressly addressed by the Connecticut Supreme Court.   See Gaynor v. Union Trust Co., 216 Conn. 458, 482, 582 A.2d 190 (1990).   Appellate Court dicta, however, appears to support the defendant's position and refute the plaintiff's argument that because a private cause of action exists under FDCPA, a private cause of action exists under CCPA. “In Krutchkoff v. Fleet Bank, N.A., 960 F.Sup. 541, 547–48 (D.Conn.1996), the District Court addressed whether General Statutes §§ 36a–645, 36a–646 and 36a–347 mirrored the act [FDCPA].   The court found that there were two critical distinctions between the federal and state statutes ․ First, the act provides for a private cause of action;  the state statutory scheme, however, conveys the power solely to the state banking commission ․ Second, the act applies to debt collectors while the state statutes apply to creditors ․ The act defines a debt collector as ‘any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another ․’ 15 U.S.C. § 1692a(6).   The District Court stated that the federal act explicitly excludes from the definition of debt collector any person collecting a debt which was originated by such person ․ It does not appear, therefore, that a state statute equivalent to the act exists.”  (Citations omitted;  internal quotation marks omitted.)  Heim v. California Federal Bank, 78 Conn.App. 351, 373 n.31, 828 A.2d 129, cert. denied, 266 Conn. 911, 832 A.2d 70 (2003);  but see Tillquist v. Ford Motor Credit Co., 714 F.Sup. 607, 616 (D.Conn.1989) (court found violations of CCPA without addressing the issue of whether a private right of action is permitted).

Moreover, decisions of the Superior Court unanimously concluded that CCPA does not provide a private cause of action.   In these decisions, the court struck the CCPA count reasoning that the act does not explicitly provide the debtor with a private right of action based upon the legislative history of the act, which indicates the legislature rejected the inclusion of a private remedy.   See Cliffside Condominium Ass'n., Inc. v. Cushman, Superior Court, judicial district of Hartford, Docket No. CV 03 0827483 (October 18, 2006, Hale, J.T.R.);   Washington Mutual Bank v. Delbuono, Superior Court, judicial district of Ansonia–Milford, Docket No. CV 03 0081479 (July 29, 2003, Curran, J.T.R.);   Yale New Haven Hospital v. DeMatteo, Superior Court, judicial district of New Haven, Docket No. CV 97 0407311 (August 12, 1998, Fracasse, J.) (23 Conn. L. Rptr. 37, 38);  Connecticut National Bank v. Montanari, Superior Court, judicial district of Hartford, Docket No. CV 92 0517808 (January 26, 1994, Aurigemma, J.) (11 Conn. L. Rptr. 10, 11).

Effective July 1, 2007, however, the legislature added C.G.S. § 36a–648.   See Public Acts 2007, No. 07–176, § 1. Section 36a–648(a), which the plaintiff refers to in his complaint, provides:  “A creditor, as defined in section 36a–645, who uses any abusive, harassing, fraudulent, deceptive or misleading representation, device or practice to collect or attempt to collect a debt in violation of section 36a–646 or the regulations adopted pursuant to section 36a–647 shall be liable to a person who is harmed by such conduct in an amount equal to the sum of:  (1) Any actual damages sustained by such person, (2) if such person is an individual, such additional damages as the court may award, not to exceed one thousand dollars, and (3) in the case of any successful action to enforce liability under the provisions of this subsection, the costs of the action and, in the discretion of the court, a reasonable attorneys fee.”

“Effective July 1, 2007, the CCPA was amended to create a private right of action for consumers.   See An Act Concerning the Prevention of Abusive and Deceptive Debt Collection Practices, § 1, 2007 Conn. Acts 176 (Reg.Sess.) (codified at Conn. Gen.Stat. § 36a–648).   But no private right of action exists for claims accruing before then.”   Jones v. Midland Funding, LLC, United States District Court, Docket No. 3:08–CV–802 (RNC) (D.Conn. December 16, 2010);  see also Hartford v. McKeever, Superior Court, judicial district of Hartford, Docket No. CV 03 0823448 (November 9, 2010, Rittenbrand, J.T.R.) (footnote two acknowledges:  “The statutes that were formerly General Statutes § 36–243a et seq. were transferred to General Statutes § 36a–645 et seq.   They are part of the Creditors' Collection Practices Act, and provide a cause of action to a person who is harmed by a creditor ‘who uses any abusive, harassing, fraudulent, deceptive or misleading representation, device or practice to collect or attempt to collect a debt ․’ General Statutes § 36a–648(a)”).   In sum, this statute section expressly authorizes a private cause of action to any “person” harmed by a creditor.

Conclusion

For all of the foregoing reasons, the defendant's motion to strike is hereby denied.

Cosgrove, J.

Cosgrove, Emmet L., J.