LLC v. Kathleen Sninsky (2013)

MEMORANDUM OF DECISION RE MOTION TO DISMISS # 126

INTRODUCTION

The defendant Kathleen Sninsky has filed a motion to dismiss dated May 8, 2013.   This is the second motion to dismiss filed by the defendant, Kathleen Sninsky.   The prior motion was filed on February 21, 2012.   An objection was filed by the plaintiff to that motion to dismiss.   After argument, the court, Judge Iannotti, denied the motion to dismiss.   The court issued a written Memorandum of Decision dated March 8, 2013.   In the Memorandum, the court recites the factual and legal background which applies to the instant action, The same facts and legal argument are utilized for the present motion to dismiss except that the defendant refers to the pleading which was a motion for summary judgment filed by the plaintiff on April 24, 2013 as further support for its motion to dismiss.   The Court adopts the factual background set forth in the March 8, 2013 decision.

The plaintiff filed an objection to this motion to dismiss dated September 27, 2013.   Defendant filed a supplemental memorandum and reply to the plaintiff's objection dated November 7, 2013.   The defendant requested an evidentiary hearing in regard to the motion to dismiss which was conducted on November 12, 2013.

DISCUSSION

On September 30, 2013, the parties appeared to argue the motion to dismiss.   At that time the defendant argued that the plaintiff had the burden to demonstrate that they have standing to bring and pursue the instant action.   Counsel for the defendant requested a period of time to notify the corporate defendant and obtain the services of an employee to testify concerning the allegations of standing as to the plaintiff.   On November 12, 2013 the parties appeared and the plaintiff presented testimony and evidence.

A. STANDING

A motion to dismiss properly attacks the jurisdiction of the court by asserting that the plaintiff is unable, as a matter of law, and fact, to state a cause of action that can be heard in the particular forum.  Gurliacci v. Mayer, 218 Conn. 531, 544, 590 A.2d 914 (1991).   The defendants argue that the plaintiff lacks standing and thus the court lacks subject matter jurisdiction to hear this action.   Standing focuses on whether a party is the proper party to seek relief on a claim and is jurisdictional in nature.  Nye v. Marcus, 198 Conn. 138, 141, 502 A.2d 869 (1985).

“Standing is established by showing that the party claiming it is authorized by statute to bring suit or is classically aggrieved ․ The fundamental test for determining aggrievement encompasses a well-settled twofold determination:  first, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in [the subject matter of the challenged action], as distinguished from a general interest, such as is the concern of all members of the community as a whole.   Second, the party claiming aggrievement must successfully establish that his specific personal and legal interest has been specially and injuriously affected by the [challenged action] ․ Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest ․ has been adversely affected.”  (Internal quotation marks omitted.)  May v. Coffey, 291 Conn. 106, 112, 967 A.2d 495 (2009).  “The issue of standing implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss ․ [I]t is the burden of the party who seeks the exercise of jurisdiction in his favor ․ clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute.”  (Citation omitted;  internal quotation marks omitted.)  Id., 113.

In response to the defendant's claims that the plaintiff does not have standing because the corporation was improperly identified, the plaintiff has provided documentation and testimony.   Victoria Mason testified before the court on November 12, 2013.   She was subject to both direct and cross examination.   Her testimony included the introduction into evidence of the bill of sale of the accounts.   Ms. Mason also offered some background regarding the operation of the plaintiff.   She testified that Cach, LLC is an asset purchasing agency and that they purchase accounts from Bank of America.   In fact, the testimony indicated that there were portfolios purchased and that specifically within the portfolio was the account of the defendant to this action, Kathleen Sninsky.   She testified as to the training she received from the Bank of America and in particular from the Assistant Vice President who went over the merger history.   She testified that the Bank of America N.A. and FIA Card Services N.A. are subsidiaries of Bank of America Corp. Her testimony is consistent with Paragraph 13 of the complaint which indicates an assignment of accounts either directly or through successor(s) in interest of the rights, title and interest to the account.   Exhibit 1 notes on page 1 the assignment of FIA to Cach, LLC without any warranties.   The bill of sale of this account was part of the April 19, 2010 portfolio which included Kathleen Sninsky.

The prior motion to dismiss which was decided by Judge Iannotti involved some of the very same arguments and issues which the defendant has raised in this second motion to dismiss.   Much of the argument is repetitive of the previous arguments and raised again only because of an alleged discrepancy in the motion for summary judgment.   The defendant refers to that motion which is no longer pending and statements of counsel to support this second motion.   However, the findings of the court in that decision are consistent with the evidence and now particularly the testimony of Ms. Mason in regard to the second motion to dismiss.

The court has focused on the testimony of Ms. Mason during the hearing that was requested by the defendant.   Both parties had ample opportunity to address the issue with argument and testimony.   The testimony of Victoria Mason regarding Cach, LLC confirmed that the plaintiff purchased the account of Kathleen Sninsky.   The defendant attempted to address a distinction between Bank of America and Bank of America N.A. in the cross examination but ultimately the court received testimony that supports the position of the plaintiff in regard to their ownership and control of the overdue accounts of Kathleen Sninsky.   Her testimony clearly gives more support to the findings of Judge Iannotti in the prior decision on the motion to dismiss.  “[I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.”  (Internal quotation marks omitted.)  Connor v. Statewide Grievance Committee, 260 Conn. 435, 443, 797 A.2d 1081 (2002).

The court has given great credence to the testimony of Ms. Mason concerning the accounts of Cach, LLC and her collection efforts.   The bill of sale, her testimony and her ongoing work to collect these amounts due on the account of Kathleen Sninsky support a finding that the plaintiff has standing to pursue this action and the motion to dismiss is denied.

THE COURT

Brazzel–Massaro, J.

Brazzel–Massaro, Barbara, J.