Brittany Benson v. LLC (2011)

MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT

BACKGROUND:

This action concerns the repossession of a vehicle purchased by the plaintiff from the defendants.   The complaint contains prefatory assertions in fourteen numbered paragraphs, followed by six counts containing causes of action.   The plaintiff seeks summary judgment as to liability only on two of these counts.   The second count alleges violation of “repossession laws.”   The sixth count alleges violation of the Connecticut Unfair Trade Practices–Act (CUTPA), codified as General Statutes § 42–110a, et seq.

The defendant filed an opposition to the motion, asserting that there are genuine issues of material fact.   The court entertained argument from both parties on October 3, 2011.

LEGAL STANDARD:

Summary judgment” ․ shall be rendered forthwith if the pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”  Practice Book § 17–49.   In deciding a motion for summary judgment a trial court must view the evidence in the light most favorable to the nonmoving party.  Hertz Corp. v. Federal Insurance Company, 245 Conn. 374, 381 (1998).  “The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under the applicable principles of substantive law, entitle him to a judgment as a matter of law ․ and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact ․ A material fact ․ [is] a fact that will make a difference in the result of the case ․” (Internal quotation marks omitted.)  Hurley v. Heart Physicians P.C., 278 Conn. 305, 314, 898 A.2 777 (2006).

“A motion for summary judgment is designed to eliminate the delay and expense of litigating an issue where there is no real issue to be tried.”  Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).   In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any issues exist.  Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).   Summary judgment “is appropriate only if a fair and reasonable person could conclude only one way.”  Miller v. United Technologies Corp., 233 Conn. 732, 751, 660 A.2d 810 (1995).  “[A] summary disposition ․ should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party.”  (Internal quotation marks omitted.)  Id., 752.  “[A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed.”  Id.

“A genuine issue has been variously described as a triable, substantial or real issue of fact ․ and has been defined as one which can be maintained by substantial evidence.”  (Citation omitted;  internal quotation marks omitted.)  United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 378, 260 A.2d 596 (1969).  “[T]he ‘genuine issue’ aspect of summary judgment procedure requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred.”  (Internal quotation marks omitted.)  Id., 378–79.  “Issue of fact encompasses not only evidentiary facts in issue but also questions as to how the trier would characterize such evidentiary facts and what inferences and conclusions it would draw from them.”  (Internal quotation marks omitted.)  Id.

ANALYSIS

I. Count Two, Violation of “Repossession Laws”

In the second count of her complaint, the plaintiff alleges the defendants, Mackeyboy Auto, LLC and William S. McNeilly, the alleged principal of Mackeyboy, violated General Statutes § 36a–785, the Retail Installment Sales Financing Act (RIFSA) “and/or the UCC” in one or more ways.   The plaintiff has failed to identify which statutory provision of the Uniform Commercial Code was violated in her complaint, as required by Practice Book § 10–3.   At oral argument, the plaintiff abandoned that claim.

As to § 36a–785, the plaintiff contends that the defendants violated subsection (c) ¹ of the act, which sets forth requirements if a holder of a contract does not desire to give notice of intention to retake goods pursuant to subsection (b) ² of the act.   The plaintiff claims that the defendants (1) failed to provide the plaintiff with an opportunity to pay the unaccelerated amount due;  (2) obligated the plaintiff to pay a fee, not the actual expenses;  and (3) failed to itemize all expenses associated with redeeming the vehicle.

Both parties agree that the defendants elected to send prior notice of repossession pursuant to § 36a–785(b).  The defendants assert that their § 36a–785(c) statement provided that “the plaintiff could ascertain additional information by contacting the defendants.”   The statement, however, does not say that.   The statement informs the plaintiff, “You can get the property back at any time before we sell it by paying us the full amount you owe (not just the past due payments ), including our expenses, as described in the Addendum to your Purchase Agreement.”  (Emphasis added.)

The statement clearly violates § 36a–785(c).  That statute requires that the “holder of such contract shall within three days of the retaking furnish or mail, by registered or certified mail, to the last known address of the buyer a written statement of the unaccelerated sum due under such contract and the actual and reasonable expense of any retaking and storing.”   It is unclear whether the defendants sent the statement by registered or certified mail.   The statement itself is silent on that issue.   Clearly, the statement does not set forth the unaccelerated sum due under the contract.   To the contrary, the statement demands an accelerated amount in direct violation of the statute.   Additionally, the statement does not set forth the actual and reasonable expenses incurred.   It refers the plaintiff to an addendum to the purchase agreement, rather than the actual expenses incurred here.   The defendant McNeilly in his own affidavit does not support the “repossession fee” as an actual fee incurred.   Rather, he admits that half of this fee is money he pays to himself as a flat fee for his time and effort in looking for a vehicle.

The defendants have not offered any evidence that they complied with the statute.   To the contrary, they have offered testimonial evidence that they violated the statute.   The defendants' statement, attached to the plaintiff's affidavit, on its face violates the statute.   There is no genuine issue of material fact as to that claim.   Therefore, the plaintiff is entitled to summary judgment in her favor on the second count.

II. Count Six, Violation of CUTPA

In the sixth count of her complaint, the plaintiff asserts that the defendants violated General Statutes § 42–110a, et seq., the Connecticut Unfair Trade Practices Act, in that the defendants (1) violated § 36a–785;  (2) withheld title from the plaintiff;  and (3) committed conversion.

“[General Statutes § ]42–110b(a) provides that [n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.   It is well settled that in determining whether a practice violates CUTPA we have adopted the criteria set out in the cigarette rule by the federal trade commission for determining when a practice is unfair:  (1)[W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise—in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness;  (2) whether it is immoral, unethical, oppressive, or unscrupulous;  (3) whether it causes substantial injury to consumers, [competitors or other businesspersons] ․ All three criteria do not need to be satisfied to support a finding of unfairness.”  (Internal quotation marks omitted.)  Harris v. Bradley Memorial Hospital & Health Center, Inc., 296 Conn. 315, 350, 994 A.2d 153 (2010) ․ [W]hether a defendant's acts constitute ․ deceptive or unfair trade practices under CUTPA, is a question of fact for the trier ․” (Internal quotation marks omitted.)  Naples v. Keystone Building & Development Corp., 295 Conn. 214, 228, 990 A.2d 326 (2010).

There is a genuine issue of material fact as to whether the acts of the defendants violated CUTPA.   Summary judgment is not appropriate as to the sixth count.

ORDER:

The plaintiff's motion for summary judgment (118.00) is granted as to the second count and denied as to the sixth count.

Robert E. Young, J.

FOOTNOTES

FN1. General Statutes § 36a–785(c) states, “If the holder of such contract does not give the notice of intention to retake, described in subsection (b), he shall retain such goods for fifteen days after the retaking within the state in which they were located when retaken.   During such period the retail buyer, upon payment or tender of the unaccelerated amount due under such contract at the time of retaking and interest, or upon performance or tender of performance of such other condition as may be named in such contract as precedent to the retail buyer's continued possession of such goods, or upon performance or tender of performance of any other promise for the breach of which such goods were retaken, and upon payment of the actual and reasonable expenses of any retaking and storing, may redeem such goods and become entitled to take possession of the same and to continue in the performance of such contract as if no default had occurred.   The holder of such contract shall within three days of the retaking furnish or mail, by registered or certified mail, to the last known address of the buyer a written statement of the unaccelerated sum due under such contract and the actual and reasonable expense of any retaking and storing.   For failure to furnish or mail such statement as required by this section, the holder of the contract shall forfeit the right to claim payment for the actual and reasonable expenses of retaking and storage, and also shall be liable for the actual damages suffered because of such failure.   If such goods are perishable so that retention for fifteen days as herein prescribed would result in their destruction or substantial injury, the provisions of this subsection shall not apply and the holder of the contract may resell the goods immediately upon such retaking.”.  FN1. General Statutes § 36a–785(c) states, “If the holder of such contract does not give the notice of intention to retake, described in subsection (b), he shall retain such goods for fifteen days after the retaking within the state in which they were located when retaken.   During such period the retail buyer, upon payment or tender of the unaccelerated amount due under such contract at the time of retaking and interest, or upon performance or tender of performance of such other condition as may be named in such contract as precedent to the retail buyer's continued possession of such goods, or upon performance or tender of performance of any other promise for the breach of which such goods were retaken, and upon payment of the actual and reasonable expenses of any retaking and storing, may redeem such goods and become entitled to take possession of the same and to continue in the performance of such contract as if no default had occurred.   The holder of such contract shall within three days of the retaking furnish or mail, by registered or certified mail, to the last known address of the buyer a written statement of the unaccelerated sum due under such contract and the actual and reasonable expense of any retaking and storing.   For failure to furnish or mail such statement as required by this section, the holder of the contract shall forfeit the right to claim payment for the actual and reasonable expenses of retaking and storage, and also shall be liable for the actual damages suffered because of such failure.   If such goods are perishable so that retention for fifteen days as herein prescribed would result in their destruction or substantial injury, the provisions of this subsection shall not apply and the holder of the contract may resell the goods immediately upon such retaking.”

FN2. General Statutes § 36a–785(b)states, “Not less than ten days prior to the retaking, the holder of such contract, if he so desires, may serve upon the retail buyer, personally or by registered or certified mail, a notice of intention to retake the goods on account of the buyer's default.   The notice shall state the default and the period at the end of which such goods will be retaken, and shall briefly and clearly state what the retail buyer's rights under this subsection will be in case such goods are retaken.   If the notice is so served and the buyer does not perform the conditions and provisions as to which he is in default before the day set for retaking, the holder of the contract may retake said goods and hold such subject to the provisions of subsections (d), (e), (f), (g) and (h) of this section regarding resale, but without any right of redemption.”.  FN2. General Statutes § 36a–785(b)states, “Not less than ten days prior to the retaking, the holder of such contract, if he so desires, may serve upon the retail buyer, personally or by registered or certified mail, a notice of intention to retake the goods on account of the buyer's default.   The notice shall state the default and the period at the end of which such goods will be retaken, and shall briefly and clearly state what the retail buyer's rights under this subsection will be in case such goods are retaken.   If the notice is so served and the buyer does not perform the conditions and provisions as to which he is in default before the day set for retaking, the holder of the contract may retake said goods and hold such subject to the provisions of subsections (d), (e), (f), (g) and (h) of this section regarding resale, but without any right of redemption.”

Young, Robert E., J.