Citibank (South Dakota) N.A. v. Kimberly A. Collins (2011)

MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION TO STRIKE COUNTERCLAIM DATED AUGUST 12, 2011 (# 118.00)

This court has carefully reviewed the many pleadings in this two-count credit card collection lawsuit.   The court has already heard and decided in what in most litigation would be dispositive motions;  a Motion to Strike (# 110.86) and a Motion for Summary Judgment (# 121.00).   The court now has a Motion to Strike the Counterclaim before it (# 118.00):  “In ruling on a motion to strike, the court must accept as true the facts alleged ․ and construe them in the manner most favorable to sustaining their legal sufficiency.”   Barasso v. Rear Still Hill Road, LLC, 64 Conn.App. 9, 13 (2001).   The Motion to Strike is addressed to the defendant's Amended Answer & Counterclaim dated July 12, 2011 (# 116.00).

The court makes the following comments on the documents in this file.   The defendant's Objection to Plaintiff's Motion to Strike Counterclaim dated September 2, 2011 contains no statutory or case law citations. (# 119.00.) The defendant claims in that Objection that:  “The plaintiff provided the third party debt collector” yet the defendant's Counterclaim contains no allegations that a third-party debt collector was involved. (# 116.00.) The plaintiff's Motion to Strike (# 118.00), its supporting Memorandum of Law (# 118.00) and its Reply (# 120.00) cite the Federal Fair Debt Collections Practices Act (FDCPA) with no statutory citation.   Nowhere in the file is there a statutory citation to the Federal Fair Debt Collections Practices Act. The plaintiff's Counterclaim states that a “creditor” and “consumer debtor” is defined in the Connecticut Unfair Trade Practices Act. No statutory citation is furnished for this claim.   It appears that CUTPA does not contain the words “creditor” or “consumer debtor.”   The defendant's Counterclaim alleges that Associated Recovery Systems (ARS) attempted to collect this debt but the Counterclaim is silent on the relationship between the plaintiff, Citibank (South Dakota) N.A., and ARS. By filing two Motions to Strike the plaintiff waived the right to file a Request to Revise.  P.B. §§ 10–6, 10–7, 10–38.   The Counterclaim states that it incorporates Exhibits A, B, C, and D but those exhibits are not attached to this Counterclaim (# 116.00) nor to the plaintiff's Request for Leave to Amend Defendant's Answer dated July 12, 2011 (# 115.00).   Therefore, Exhibits A, B, C, and D are not before the court.  P.B. §§ 10–29(a), 10–60.   The court does not recognize any of the documents contained in pleading # 108.00 as being Exhibits A, B, C, and D to the current Counterclaim dated August 12, 2011 (# 118.00) since these documents were not filed with the court pursuant to P.B. § 10–29(a), attached to this Counterclaim (# 116.00), attached to the Request for Leave to Amend Defendant's Answer dated July 12, 2011 (# 115.00).   The documents in # 108.00 do not contain legible marking as Exhibit A, B, C, and D.

Taking the allegations of the Counterclaim (# 118.00) as true, the defendant has alleged that Associated Recovery Systems (ARS) and the plaintiff, Citibank (South Dakota) N.A. are one and the same entity.

The plaintiff's Motion to Strike Counterclaim dated August 12, 2011 (# 118.00) is denied.

BY THE COURT

Hon. Kevin Tierney

Judge Trial Referee

Tierney, Kevin, J.T.R.