Maureen Thorne et al. v. LLC (2012)

MEMORANDUM OF DECISION RE PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT (No. 126)

The Motion For Partial Summary Judgment now before the Court seeks partial summary judgment as to liability and statutory damages.   For the reasons set forth below, the Motion is granted in part and denied in part.

This case arises out of the repossession of an automobile.   While some of the facts submitted by the parties are undisputed, others are the subject of genuine dispute.   The undisputed facts show that the plaintiffs purchased an automobile from the defendants.   The automobile was repossessed for nonpayment on May 10, 2010.   On May 17, 2010, the defendants mailed a document entitled Repossession Notice (“Notice”) to the plaintiffs.   The Notice is discussed in detail below.

The plaintiffs claim in their single-count complaint that the defendants' repossession procedure violated several statutes, including the Connecticut Unfair Trade Practices Act (CUTPA), Conn. Gen.Stat. § 42–110g;  the Retail Installment Sales Financing Act (RISFA), Conn. Gen.Stat. § 36a–785;  the Uniform Commercial Code (UCC);  Conn. Gen.Stat. § 42a–9–625;  and the Creditors' Collection Practices Act (CCPA), Conn. Gen.Stat. § 36a–646.   The complaint demands statutory, actual, and punitive damages.

The Plaintiffs' Motion For Partial Summary Judgment, filed January 20, 2012, seeks partial judgment as to liability as to the claimed violations of the UCC, RISFA, and CCPA. It further seeks statutory damages.   The Motion does not seek judgment as to liability under CUTPA or actual or punitive damages.   The plaintiffs concede that these latter issues must be resolved after an evidentiary hearing.   The Motion was argued on February 27, 2012.

After a careful examination of the materials submitted by the parties, the Court concludes that there is no genuine issue of material fact that the Notice violated a provision of RISFA, Conn. Gen.Stat. § 36a–785(c) (“subsection c”), in numerous ways.   Partial summary judgment can appropriately be entered as to liability for the defendants' violation of this provision.   Resolution of the plaintiffs' remaining claims involve genuine issues of material fact and must be resolved after an evidentiary hearing.

There is no genuine issue of material fact that the Notice violated subsection c in each of the following ways:

1. Subsection c provides that the holder of the contract “shall retain such goods for fifteen days after the retaking.”   The Notice states that the defendants will sell the vehicle “[a]fter 14 days.”

2. Subsection c provides that the holder of the contract “shall within three days of the retaking furnish or mail ․ a written statement of the unaccelerated sum due under such contract and the actual or reasonable expense of any retaking and storage.”   The Notice violates this provision in numerous ways:

A. The repossession occurred on May 10, 2010.   The Notice was not mailed within three days.   It was mailed on May 17, 2010.

B. The Notice does not state “the unaccelerated sum due under [the] contract.”   Instead, it states a “total balance” assertedly due under the contract.

C. To make the matter worse, the “total balance” assertedly due is significantly inflated.   The defendants' records establish that the “total balance” due was $4,295.70.   The Notice states that the “total balance” due is “$5,294.00” “plus $700 repossession fee.”

D. To make the matter yet more egregious, the “$700 repossession fee” is itself unlawfully inflated.   The defendants' records establish that the towing fee was actually $350.   The remainder of the sum claimed “is money that [the contract holder] pays to himself as a flat fee for his time and effort in looking for a vehicle.”   Benson v. Mackeyboy Auto, LLC (No. CV11–5033628 (N.H.J.D. October 17, 2011) (Young, J.).   This calculation cannot be justified under the statute.  Id.

“In consumer transactions, strict compliance with statutory provisions that prescribe the informational content of retail installment contracts is mandatory and is not excused by inadvertence.”  Gaynor v. Union Trust Co., 216 Conn. 458, 475, 582 A.2d 190 (1990).   This requirement is fully applicable to RISFA.  Mack Financial Corp. v. Crossley, 209 Conn. 163, 166–67, 550 A.2d 303 (1988).   Given the evidence presented by the parties, there is no genuine issue of material fact that the Notice violated subsection c of RISFA in the numerous ways detailed above.   These cumulative violations were serious rather than trivial.

Under these circumstances, partial summary judgment as to liability must enter in favor of the plaintiff on the RISFA violation asserted in its single-count complaint.

The plaintiffs' remaining statutory claims involve genuine issues of material fact, particularly concerning the reasonableness of the defendants' actions.   These claims cannot be determined on summary judgment.

The plaintiffs concede that their claims for actual and punitive damages must be resolved after an evidentiary hearing.   Although the plaintiffs may be entitled to statutory damages for the RISFA violations found here, a piecemeal determination of damages is not appropriate in this case.   The plaintiffs' total damages can be determined on the basis of all the evidence ultimately submitted in the case.

The Motion For Partial Summary Judgment is thus granted as to liability on the RISFA claim asserted in the complaint.   The Motion is otherwise denied.

Jon C. Blue

Judge of the Superior Court

Blue, Jon C., J.