LLC v. Gregory Golski (2014)

MEMORANDUM OF DECISION RE MOTION TO DISMISS # 102

INTRODUCTION

The plaintiff brought this action by writ, summons and complaint dated October 23, 2013.   The return date was December 13, 2013.   The complaint is in two counts and alleges a debt due by the defendant.   On January 9, 2014, the defendant filed this motion to dismiss alleging that the court does not have subject matter because the plaintiff is not the owner of the debt pursuant to the Creditors' Collection Practices Act (CCPA) C.G.S. § 36a–645 et seq.   The plaintiff filed a memorandum in opposition to the motion dated January 15, 2014.   The plaintiff filed a reply dated January 24, 2014.   The matter appeared on short calendar for a decision on February 24, 2014 without argument.

DISCUSSION

“A motion to dismiss ․ properly attacks jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court ․ A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”  (Internal quotation marks omitted.)  Cox v. Aiken, 278 Conn. 204, 210–11, 897 A.2d 71 (2006);  see also Kozlowski v. Commissioner of Transportation, 274 Conn. 497, 501, 876 A.2d 1148 (2005);  Filippi v. Sullivan, 273 Conn. 1, 866 A.2d 599 (2005).   According to Practice Book § 10–31(a), “a motion to dismiss shall be used to assert ․ (2) lack of jurisdiction over the person ․ and (5) insufficiency of service of process.”   The motion, however, “is not designed to test the legal sufficiency of a complaint in terms of whether it states a cause of action.”   Pratt v. Old Saybrook, 225 Conn. 177, 185, 621 A.2d 1322 (1993).   The defendant argues 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 the present complaint, the plaintiff, Midland Funding, LLC, alleges that it is attempting to collect a debt allegedly owed by the defendant Gregory Golski.   The defendant argues that the plaintiff is a collection agency and thus cannot collect pursuant to the statute.   The complaint alleges that:  “Midland Funding, LLC purchased title to this debt on 4/9/12 for valuable consideration and as such is the bona fide owner of the debt.”  (Plaintiff's complaint, First Count, paragraph 2.) This allegation provides the basis for the collection status of the plaintiff as the owner of the account.   Additionally, the statute as to a collection agency which is the defendant's claim states in pertinent part:  “Consumer collection agency means any person engaged in the business of collecting or receiving for payment for others of any account, bill or other indebtedness from a consumer debtor or engaged in the business of collecting or receiving for payment property tax from a property tax debtor on behalf of a municipality, including any person who, by any device subterfuge or pretense, makes a pretended purchase or takes a pretended assignment of accounts from any other person or municipality of such indebtedness for the purpose of evading the provisions of sections 36a–800—to 36a–810, inclusive.   It includes persons who furnish collection systems carrying a name which simulates the name of a consumer collection agency and who supply forms or form letters to be used by the creditor, even, though such forms direct the consumer debtor or property tax debtor to make payments directly to the creditor rather than to such fictitious agency.”  C.G.S. § 36–800(1).   The plaintiff's allegations in the complaint do not satisfy this definition and nothing on the face of the complaint satisfies this status.

The plaintiff relies upon the action of Unifund CCR Partners v. Coyle, Superior Court, J.D. of New London, D.N. CV 09 5010045 (June 3, 2009 Martin, J.) [47 Conn. L. Rptr. 649], for support of their position that they are, as assignees, the owner of the debt and have standing to pursue the action.   Unifund, like this action, raises the same issues which the court determined were not sufficient to find a lack of standing.   Like the court in Unifund, the issue of ownership of the debt alleged by the plaintiff will be an issue that must be addressed at a later date.   This position has been followed by a number of Superior Court cases in which the parties became the owner of the debt and the court found that considering the allegations in a light most favorable to the plaintiff as required, the motion to dismiss should be denied and evidence should be produced to determine if the plaintiff can successfully pursue the action.   The defendant in the instant action has not provided evidence or an affidavit that would support his position and negate the allegations in the complaint.   Based upon the allegations in the complaint and the supporting caselaw, the motion for dismiss is denied.

THE COURT

Brazzel–Massaro, J.

Brazzel–Massaro, Barbara, J.