Opinion
No. 3:20-cv-00438 (VAB)
2020-12-04
Rayteisha HERNANDEZ, Plaintiff, v. SAYBROOK BUICK GMC, INC., Defendant.
Brendan Lorenz Mahoney, Daniel S. Blinn, Consumer Law Group, Rocky Hill, CT, for Plaintiff.
Brendan Lorenz Mahoney, Daniel S. Blinn, Consumer Law Group, Rocky Hill, CT, for Plaintiff.
RULING AND ORDER ON MOTION FOR DEFAULT JUDGMENT
Victor A. Bolden, United States District Judge
Rayteisha Hernandez ("Plaintiff") has filed a Complaint against Saybrook Buick GMC, Inc. ("Defendant" or "Saybrook Buick"), alleging violations of the Truth in Lending Act ("TILA"), 15 U.S.C. § 1679 et seq. , the Credit Repair Organization Act ("CROA"), 15 U.S.C. § 1679 et seq. , the Connecticut Retail Installment Sales Financing Act ("RISFA"), Conn. Gen. Stat. § 36a-770 et seq. , and the Connecticut Unfair Trade Practices Act ("CUTPA"), Conn. Gen. Stat. § 42-11a et seq. , as well as for misrepresentation or fraud under Conn. Gen. Stat. § 42a-2-721 and for civil forgery under Conn. Gen. Stat. § 52-565. Compl., ECF No. 1 (Apr. 1, 2020).
Ms. Hernandez now moves for default judgment. Mot. for Default J., ECF No. 9 (Aug. 19, 2020) ("Mot."); Mem. of L. in Support of Pl.’s Mot. for J., ECF No. 9-1 (Aug. 19, 2020) ("Mem."); Aff. of Rayteisha Hernandez, ECF No. 9-2 (Aug. 18, 2020) ("Hernandez Aff.").
For the following reasons, the motion for default judgment is GRANTED in part and DENIED in part.
The Court finds liability under TILA, RISFA, and CUTPA, as well as for civil forgery, and awards actual damages in the amount of $656.99, double damages under Conn. Gen. Stat. § 52-565 in the amount of $656.99, statutory damages under TILA in the amount of $2,000.00, and punitive damages in the amount of $656.99. In sum, Ms. Hernandez is awarded $3,970.97 against Saybrook Buick. The Court further orders relief in the form of rescission of the Contract. Ms. Hernandez also is entitled to attorneys’ fees and costs in an amount to be later determined.
Given the liability already determined and the relief awarded, the Court denies as moot the issue of liability under the Credit Repair Organization Act.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
For the purposes of a default judgment motion, the Court accepts all facts alleged in the Complaint as true. See Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., Div. of Ace Young Inc. , 109 F.3d 105, 108 (2d Cir. 1997) ("It is, of course, ancient learning that a default judgment deems all the well-pleaded allegations in the pleadings to be admitted."); see also Adobe Sys. Inc. v. Feather , 895 F. Supp. 2d 297, 300 (D. Conn. 2012) ("Upon entry of a default, the court accepts as true all of the factual allegations of the complaint, except those relating to damages." (citing Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp. , 973 F.2d 155, 158 (2d Cir. 1992) ))
"On or about October 24, 2019, [Ms. Hernandez] purchased a new 2019 Buick Encore [(the "Vehicle")] from Saybrook Buick for a total cash price delivered of $34,880.25." Compl. ¶ 7.
Saybrook Buick "told [Ms. Hernandez] that it was the only vehicle she could be approved to purchase." Id. ¶ 8. However, Saybrook Buick "had other vehicles that were priced lower than the Vehicle for which Plaintiff could also have been approved to purchase, and it limited [Ms. Hernandez] to this Vehicle because it believed that it would be more profitable for it to sell [Ms. Hernandez] the Vehicle than other available options." Id. ¶ 9.
Saybrook Buick "prepared a Retail Installment Contract ... for the sale that listed Santander as the assignee." Id. ¶ 10; see Retail Installment Contract Simple Fin. Charge, ECF No. 9-3 (Aug. 19, 2020) ("Contract"). In obtaining approval from Santander, Saybrook Buick "submitt[ed] fraudulent information regarding [Ms. Hernandez]’s creditworthiness," id. ¶ 11, and "fraudulently listed a cash down payment of $4,000, even though [Ms. Hernandez] did not pay any money down for the Vehicle," id. ¶ 12. The inclusion of the false down payment caused an "improper[ ] inflat[ion]" of the cash price that resulted "in an increased sales tax of $254" to Ms. Hernandez. Id. ¶ 14.
The Contract also mentioned "a 2002 BMW 318 that [Ms. Hernandez] had traded[ ]in for an allowance of $500," but Ms. Hernandez "did not own such a vehicle and did not trade in any vehicle towards the purchase." Id. ¶ 15. The Contract included a " ‘trade-in’ fee of $100," which "would not have been incurred if Saybrook Buick had not listed [the] false trade-in." Id. ¶ 17.
The Contract also included "a charge of $3,350 for a service contract that [Ms. Hernandez] neither requested nor desired." Id. ¶ 18.
The terms of the Contract were "a total amount financed of $30,880.25[ ] and provided for 72 monthly payments of $656.99." Id. ¶ 19. Ms. Hernandez told Saybrook Buick "that she could not afford the monthly payment," and Saybrook Buick responded "that the payment included insurance coverage for six months." Id. ¶ 20. Saybrook Buick, however, "had separately arranged the purchase of the insurance for only seven days of coverage, with an expiration date of October 31, 2019." Id. ¶ 21. Saybrook Buick also had "altered the insurance card to list an expiration date of March 31[,] 2020." Id. ¶ 22.
Ms. Hernandez agreed to purchase the Vehicle "[b]ased on Saybrook Buick's representations that the monthly payment included insurance." Id. ¶ 23. In December 2019, Ms. Hernandez "learned about the lapsed insurance and fake insurance card when she attempted to make a claim against the policy." Id. ¶ 24. "The insurance carrier told [her] the insurance coverage had expired and it provided her with a copy of the insurance card showing an expiration date of October 31, 2019." Id. ¶ 25.
On February 3, 2020, Ms. Hernandez "returned the Vehicle to Saybrook Buick ... and made demand for a return of the payments that she made under the Contract. Id. ¶ 26.
B. Procedural History
On April 1, 2020, Ms. Hernandez filed a Complaint against Saybrook Buick, alleging violations of the Truth in Lending Act ("TILA"), 15 U.S.C. § 1679 et seq. , the Credit Repair Organization Act ("CROA"), 15 U.S.C. § 1679 et seq. , the Connecticut Retail Installment Sales Financing Act ("RISFA"), Conn. Gen. Stat. § 36a-770 et seq. , and the Connecticut Unfair Trade Practices Act ("CUTPA"), Conn. Gen. Stat. § 42-11a et seq. , as well as for misrepresentation or fraud under Conn. Gen. Stat. § 42a-2-721 and for civil forgery under Conn Gen. Stat. § 52-565. Compl.
On June 5, 2020, Ms. Hernandez moved for default entry under Rule 55(a) of the Federal Rules of Civil Procedure. Mot. for Default Entry, ECF No. 8 (June 5, 2020).
On August 19, 2020, Ms. Hernandez moved for default judgment against Saybrook Buick. Mot.
On October 21, 2020, the Court granted Ms. Hernandez's motion for default entry against Saybrook Buick. Order, ECF No. 10 (Oct. 21, 2020).
On November 24, 2020, the Court held a hearing on the motion for default judgment. Min. Entry, ECF No. 13 (Nov. 24, 2020). Saybrook Buick did not appear at the hearing.
II. STANDARD OF REVIEW
" Rule 55 of the Federal Rules of Civil Procedure provides a two-step process for obtaining a default judgment." Priestley v. Headminder, Inc. , 647 F.3d 497, 504 (2d Cir. 2011). Plaintiffs must first obtain an entry of default under Rule 55(a) by showing that the defaulting party "has failed to plead or otherwise defend." Fed. R. Civ. P. 55(a). When a party is in default, the Court "deems all the well-pleaded allegations in the pleadings to be admitted," except for damages. Transatlantic Marine , 109 F.3d at 108 (citing Greyhound Exhibitgroup, Inc. , 973 F.2d at 158 ("While a party's default is deemed to constitute a concession of all well[-]pleaded allegations of liability, it is not considered an admission of damages.")); see also City of N.Y. v. Mickalis Pawn Shop, LLC , 645 F.3d 114, 137 (2d Cir. 2011) ("It is an ancient common law axiom that a defendant who defaults thereby admits all well-pleaded factual allegations contained in the complaint." (internal quotation marks omitted)).
Second, a plaintiff must seek a default judgment under Rule 55(b). " Rule 55(b)(1) allows the clerk to enter a default judgment if the plaintiff's claim is for a sum certain and the defendant has failed to appear and is not [a minor] or incompetent person." New York v. Green , 420 F.3d 99, 104 (2d Cir. 2005) (citing Fed. R. Civ. P. 55(b)(1) ). A sum certain amount is "a sum that can be made certain by computation." Fed. R. Civ. P. 55(b)(1). "In all other cases, Rule 55(b)(2) governs, and it requires a party seeking a judgment by default to apply to the court for entry of a default judgment." Green , 420 F.3d at 104 (internal quotation marks omitted). And while the Second Circuit has expressed a "strong preference for resolving disputes on the merits," id. (internal quotation marks omitted), "[t]he decision whether to grant or deny a motion for default judgment lies with the trial court." Berbick v. City of N.Y.: 28th Precinct , No. 11-cv-5295 (PAC) (JCF), 2013 WL 1120313, at *2 (S.D.N.Y. Mar. 18, 2013) (citing Enron Oil Corp. v. Diakuhara , 10 F.3d 90, 95 (2d Cir. 1993) ).
Under Rule 55(b)(2), a court is responsible for ensuring that the facts alleged, while accepted as true, provide "a proper basis for liability and relief." Rolls-Royce PLC v. Rolls-Royce USA, Inc. , 688 F. Supp. 2d 150, 153 (E.D.N.Y. 2010) (citing Au Bon Pain Corp. v. Artect, Inc. , 653 F.2d 61, 65 (2d Cir. 1981) (holding that courts have discretion under Rule 55(b)(2) "to require proof of necessary facts," but do not need to agree that those facts provide a basis for liability)). Once a court has made a determination of liability as a matter of law, it must then "determine the amount of damages to be awarded; to do so, it may conduct a hearing or it may make such a finding on the basis of documentary evidence if damages are ascertainable with reasonable certainty." Chance v. Karmacharya , No. 14-cv-1111 (JAM), 2017 WL 5515951, at *1 (D. Conn. Mar. 20, 2017) (citing Credit Lyonnais Sec. (USA), Inc. v. Alcantara , 183 F.3d 151, 155 (2d Cir. 1999) ); see Fed. R. Civ. P. 55(b)(2) (a court may "conduct hearings ... when, to enter or effectuate judgment, it needs to: [ ] conduct an accounting; [ ] determine the amount of damages; [ ] establish the truth of any allegations by evidence; [ ] investigate any other matter."). "A court may not ‘just accept [a plaintiff's] statement of the damages,’ even in a default judgment." Chance , 2017 WL 5515951, at *2 (alteration in original) (quoting Transatlantic Marine , 109 F.3d at 111 ).
III. DISCUSSION
Ms. Hernandez sets forth six counts against Saybrook Buick: violations of the Truth in Lending Act ("TILA"), 15 U.S.C. § 1679 et seq. , Credit Repair Organization Act ("CROA"), 15 U.S.C. § 1679 et seq. , the Connecticut Retail Installment Sales Financing Act ("RISFA"), Conn. Gen. Stat. § 36a-770 et seq. , and the Connecticut Unfair Trade Practices Act ("CUTPA"), Conn. Gen. Stat. § 42-11a et seq. , as well as for misrepresentation or fraud under Conn. Gen. Stat. § 42a-2-721 and for civil forgery under Conn. Gen. Stat. § 52-565. Compl.
The Court has jurisdiction over Ms. Hernandez's federal claims under 15 U.S.C. §§ 1640(e) and 1691e(f) and 28 U.S.C. § 1331. The Court chooses to exercise supplemental jurisdiction over Ms. Hernandez's state-law claims under 28 U.S.C. § 1367 as they are "so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution." Id.
Ms. Hernandez seeks damages totaling $13,019.98, which includes actual damages; double damages for civil forgery; TILA statutory damages; and punitive damages under the CUTPA. See Mem. at 18. Ms. Hernandez also seeks "non-monetary relief in the form of rescission of the Contract and/or revocation of acceptance of the Vehicle." Id. Ms. Hernandez also seeks attorneys’ fees, but will submit her fee claim after an adjudication of her motion for default judgment. Id. at 17.
After addressing the threshold Rule 55(a) requirements, the Court turns to each claim.
A. Rule 55(a)
Ms. Hernandez has satisfied Rule 55(a), as the Clerk of Court on October 21, 2020 entered an order granting the motion for default entry, which still is in effect. See Order, ECF No. 10; see also Priestley , 647 F.3d at 504-05 ("When a party against whom affirmative relief is sought has failed to plead or otherwise defend, a plaintiff may bring that fact to the court's attention. In such circumstances Rule 55(a) empowers the clerk of court to enter a default.").
The Court therefore will address each of Ms. Hernandez's claims to determine if her allegations have established Saybrook Buick's liability as a matter of law.
B. Truth in Lending Act Claim
The Truth in Lending Act "provides for a private right of action for damages where a creditor fails to make disclosures required by the Act." Rodriguez v. Auto Sales, Inc. , 477 F. Supp. 2d 477, 479 (D. Conn. 2007) (citing 15 U.S.C. §§ 1638, 1640 ). It "is a disclosure statute concerned with consumers’ ‘informed use of credit,’ which ‘results from an awareness of the cost thereof by consumers.’ " Morales v. Barberino Bros., Inc. , No. 3:15-cv-00301 (CSH), 2016 WL 2626826, at *3 (D. Conn. May 5, 2016) (quoting 15 U.S.C. § 1601(c) ). It "reflect[ed] a transition in congressional policy from a philosophy of ‘[l]et the buyer beware’ to one of ‘[l]et the seller disclose.’ " Mourning v. Family Pub. Serv., Inc. , 411 U.S. 356, 377, 93 S.Ct. 1652, 36 L.Ed.2d 318 (1973). Indeed, its "specific purpose is ‘to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit, and to protect the consumer against inaccurate and unfair credit billing and credit card practices.’ " Morales , 2016 WL 2626826, at *3 (citing Mourning , 411 U.S. at 377, 93 S.Ct. 1652 ). The "TILA is a remedial statute, [and] it is interpreted strictly in favor of the consumer." Frazee v. Seaview Toyota Pontiac, Inc. , 695 F. Supp. 1406, 1408 (D. Conn. 1988).
Among other things, the Truth in Lending Act
requires that creditors in consumer credit transactions disclose the identity of the creditor, the amount financed, a statement of the consumer's right to obtain a written itemization of the amount financed, the finance charge, the APR, the total payments and the number, amount, and due dates or period of payments scheduled to repay the total payments.
James v. Lopez Motors, LLC , No. 3:16-cv-835 (VLB), 2018 WL 1582552, at *3 (D. Conn. Mar. 31, 2018) (citing 15 U.S.C. § 1638(a) ). The "amount financed" is computed by "tak[ing] the principal amount of the loan or the cash price less down payment and trade-in; [ ] add[ing] any charges which are not part of the finance charge or of the principal amount of the loan and which are financed by the consumer, including the cost of any items excluded from the finance charge pursuant to section 1605 of [the TILA]; and [ ] subtract[ing] any charges which are part of the finance charge but which will be paid by the consumer before or at the time of the consummation of the transaction, or have been withheld from the proceeds of the credit." 15 U.S.C. § 1638(a)(2)(A). "[T]he computations need not be disclosed." Id.
Ms. Hernandez claims that Saybrook Buick violated TILA by including a false down payment of $4,000, even though she did not make a down payment, which resulted in her being charged "an additional $254 in sales tax that she would not have been charged in a comparable cash transaction." Mem. at 6-7. She also claims that the "fake trade-in" value, which "resulted in a $100 charge attributable to a fee charged by the state of Connecticut[,] ... was attributable to Saybrook Buick's effort to falsely portray her creditworthiness, and the trade-in charge would [also] not have been imposed in a similar cash transaction." Id. at 7. She claims that because "[b]oth the $254 and $100 charges were included as part of the amount financed instead of the finance charge," the "fake down payment and trade-in render the balance of the disclosures inaccurate and violate TILA." Id. (citing Hernandez v. Apple Auto Wholesalers of Waterbury LLC , 460 F. Supp. 3d 164 (D. Conn. 2020) ).
A price inflated above another price discussed with a buyer may be in violation of the Truth in Lending Act. See, e.g. , Llaurador-Perez v. Clean Country Cars, Inc. , No. 3:13-cv-1333 (JBA), 2014 WL 5780706, at *4 (D. Conn. Nov. 5, 2014) (finding that allegations that a car dealership inflated the buyer's down payment in order to increase the amount financed were sufficient to state a claim under 15 U.S.C. § 1638 ); Diaz v. Paragon Motors of Woodside, Inc. , 424 F. Supp. 2d 519, 530 (E.D.N.Y. 2006) (finding that an "increase in price above the advertised price constitute[d] a hidden finance charge [required to be disclosed under TILA] because [the plaintiff] was forced to pay the increase based on his need to secure sub-prime financing").
But "[t]he focus of [TILA] is full disclosure of all terms and charges." Morales , 2016 WL 2626826, at *5 (quoting Gregory v. Metro Auto Sales, Inc. , 158 F.Supp.3d 302, 307 (E.D. Pa. 2016) ). "Regardless of whether Plaintiff was unfairly taken advantage of in the overall transaction," there is no TILA violation where "[a]ll of the financial terms of the transaction were set forth in full." Id. (quoting Gregory , 158 F.Supp.3d at 307 ) (noting that the plaintiff had not cited "a single court decision finding that an inflated, but accurately disclosed, ‘amount financed’ constituted a violation of § 1638(a)(2)(B)").
Ms. Hernandez has provided an affidavit asserting that she "did not pay any money down for the Vehicle," Hernandez Aff. ¶ 9, and that she "did not trade in any vehicle towards her purchase" of the Vehicle, id. ¶ 10. The Contract, however, under a section entitled "Truth-in-Lending Disclosures," notes a "total down[ ]payment" of $4,500, which includes a "net trade in" of $500 and $4,000 in cash. Contract at 1. Because the Court "deems all the well-pleaded allegations in the pleadings to be admitted," Transatlantic Marine , 109 F.3d at 108, because Saybrook Buick inflated the price above the price discussed with Ms. Hernandez, it added a hidden finance charge required to be disclosed under TILA. See Llaurador-Perez , 2014 WL 5780706, at *4 ; Diaz , 424 F. Supp. 2d at 530 ; see also Hernandez , 460 F. Supp. 3d at 178 (granting default judgment on a TILA claim where the terms of a loan, including down payment amounts, were inflated by an automobile seller).
Accordingly, default judgment on the Truth in Lending Act claim will be granted and, based on the record evidence, actual damages will be awarded as described below. See Chance , 2017 WL 5515951, at *1 ("A court may not just accept [a plaintiff's] statement of the damages, even in a default judgment.") (internal quotation marks omitted).
C. The Credit Repair Organizations Act Claim
Section 1679b(a)(1) of the Credit Repair Organizations Act provides in relevant part that "no person may"
(1) make any statement, or counsel or advise any consumer to make any statement, which is untrue or misleading (or which, upon the exercise of reasonable care, should be known by the credit repair organization, officer, employee, agent, or other person to be untrue or misleading) with respect to any consumer's
credit worthiness, credit standing, or credit capacity to --
(A) any consumer reporting agency (as defined in section 1681a(f) of this title); or
(B) any person—
(i) who has extended credit to the consumer; or
(ii) to whom the consumer has applied or his applying for an extension of credit[.]
A "consumer reporting agency" is defined as
any person which, for monetary fees, dues, or on a cooperative nonprofit basis, regularly engages in whole or in part in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties, and which uses any means or facility of interstate commerce for the purpose of preparing or furnishing consumer reports.
Id. § 1681a(f).
The term "person" is defined in § 1681a(f) to mean "any individual, partnership, corporation, trust, estate, cooperative, association, government or governmental subdivision or agency, or other entity." Id. § 1691a(f).
A "credit repair organization" is defined as "any person" who uses interstate commerce or the mails "for the express or implied purpose of" either "(i) improving any consumer's credit record, credit history, or credit rating" or "(ii) providing advice or assistance to any consumer with regard to any activity or service described in clause (i)." Id. § 1679a(3)(A). It exempts non-profit organizations, "any creditor (as defined in section 1602 of this title), with respect to any consumer, to the extent the creditor is assisting the consumer to restructure any debt owed by the consumer to the creditor;" and "any depository institution (as that term is defined in section 1813 of Title 12) or any Federal or State credit union (as those terms are defined in section 1752 of Title 12), or any affiliate or subsidiary of such a depository institution or credit union." Id. § 1679a(3)(B).
Under 15 U.S.C. § 1602(g), "the term ‘creditor’ refers only to a person who both (1) regularly extends, whether in connection with loans, sales of property or services, or otherwise, consumer credit which is payable by agreement in more than four installments or for which the payment of a finance charge is or may be required, and (2) is the person to whom the debt arising from the consumer credit transaction is initially payable on the face of the evidence of indebtedness or, if there is no such evidence of indebtedness, by agreement. Notwithstanding the preceding sentence, in the case of an open-end credit plan involving a credit card, the card issuer and any person who honors the credit card and offers a discount which is a finance charge are creditors. For the purpose of the requirements imposed under part D of this subchapter and sections 1637(a)(5), 1637(a)(6), 1637(a)(7), 1637(b)(1), 1637(b)(2), 1637(b)(3), 1637(b)(8), and 1637(b)(10) of this title, the term "creditor" shall also include card issuers whether or not the amount due is payable by agreement in more than four installments or the payment of a finance charge is or may be required, and the Bureau shall, by regulation, apply these requirements to such card issuers, to the extent appropriate, even though the requirements are by their terms applicable only to creditors offering open-end credit plans. Any person who originates 2 or more mortgages referred to in subsection (aa) in any 12-month period or any person who originates 1 or more such mortgages through a mortgage broker shall be considered to be a creditor for purposes of this subchapter. The term "creditor" includes a private educational lender (as that term is defined in section 1650 of this title) for purposes of this subchapter." Id.
Under 12 U.S.C. § 1813(c)(1), "the term ‘depository institution’ means any bank or savings association." Id.
Under 12 U.S.C. § 1752(1), "the term ‘Federal credit union’ means a cooperative association organized in accordance with the provisions of this chapter for the purpose of promoting thrift among its members and creating a source of credit for provident or productive purposes." Id. "The terms ‘state credit union’ and ‘state-chartered credit union’ mean a credit union organized and operated according to the laws of any State, the District of Columbia, the several territories and possessions of the United States, the Panama Canal Zone, or the Commonwealth of Puerto Rico, which laws provide for the organization of credit unions similar in principle and objectives to Federal credit unions." Id. § 1752(6).
Ms. Hernandez does not allege that Saybrook Buick is a "credit reporting organization." Instead, she argues that "[i]t is a violation of CROA for a person to ‘make any statement, or counsel or advise any consumer to make any statement," and claims, in reliance on O'Neill v. Country Motors II, Inc. , No. 3:15-cv-1069 (CSH), 2015 WL 8779594, at *9 (D. Conn. 2015), that "[c]ourts have held that misrepresenting credit worthiness in the course of applying for credit violates the act." Mem. at 7-8. She therefore argues that "Saybrook Buick violated 15 U.S.C. § 1679b(a)(1) by providing false information to Santander relating to Plaintiff's creditworthiness and by including the false down payment and the false trade-in." Id. at 8.
At least one court in this District has found allegations that a seller has misrepresented a buyer's creditworthiness in a credit application regarding a purchase sufficient to state a CROA violation. See O'Neill v. Country Motors, II, Inc. , 2015 WL 8779594, at *9 (denying motion to dismiss CROA claim where automobile seller made "untrue and/or misleading assertions ... when submitting Plaintiffs’ credit application to [the creditor]" because "these false assertions impacted Plaintiffs’ credit worthiness, standing, and/or capacity with respect to their credit application regarding the purchase of the Chrysler"). Other courts, including others in this Circuit, however, have disagreed as to whether § 1679b(a) applies only to "credit repair organizations." Compare Henry v. Westchester Foreign Autos, Inc. , 522 F. Supp. 2d 610, 613 (S.D.N.Y. 2007) (holding that "person" in Section 1679(b) refers only to credit repair organizations); Nixon v. Alan Vester Auto Grp., Inc. No. 1:07-cv-839, 2008 WL 4544369, at *7 (M.D.N.C. Oct. 8, 2008) (holding that "it was not Congress’[s] intent to have the CROA apply to all persons, whether they are associated with credit repair or not"); Karakus v. Wells Fargo Bank , 941 F. Supp. 2d 318, 338 (E.D.N.Y. Apr. 22, 2013) (noting, although not ruling on this basis, that "[a]lthough some authority exists for [the plaintiffs’] proposition that ‘no person’ should be read broadly enough to include mortgage lenders like Wells Fargo, this interpretation would run afoul of the purposes the statute was designed to achieve"); Sannes v. Jeff Wyler Chevrolet , No. C-1-97-930, 1999 WL 33313134, at *3 (S.D. Ohio Mar. 31, 1999) (finding the CROA did not apply to Jeff Wyler Chevrolet because "auto dealerships do not seem to be the primary target Congress intended when it drafted this consumer protection statute," and reciting the legislative history) with Greene v. CCDN, LLC , 853 F. Supp. 2d 739, 753 n.15 (N.D. Ill. 2011) (holding that § 1679b(a) applies to all "persons," not just credit repair organizations, and collecting cases); Poskin v. TD Banknorth, N.A. , 687 F. Supp. 2d 530, 542-43 (W.D. Pa. 2009) (holding that the phrase "no person" is broad enough to encompass mortgage lenders). The Court is not aware of any Second Circuit or Supreme Court precedent on point. Because "a district court decision does not ‘clearly establish’ the law even of its own circuit, much less that of other circuits," Hawkins v. Steingut , 829 F.2d 317, 321 (2d Cir. 1987), the Court otherwise must determine whether § 1679b(a)(1) applies when an entity is not a credit reporting organization. See Wanamaker v. Westport Bd. of Educ. , 899 F. Supp. 2d 193, 201 (D. Conn. 2012).
The Court is aware of one Supreme Court and one Second Circuit case discussing CROA. In CompuCredit Corp. v. Greenwood , 565 U.S. 95, 132 S. Ct. 665, 181 L.Ed.2d 586 (2012), the Supreme Court addressed whether this statute precludes enforcement of an arbitration agreement in a lawsuit alleging CROA violations. Id. at 668. In In re American Exp. Merchants’ Litig. , 667 F.3d 204 (2d Cir. 2012), rev'd , American Exp. Co. v. Italian Colors Restaurant , 570 U.S. 228, 133 S.Ct. 2304, 186 L.Ed.2d 417 (2013), the Second Circuit discussed in a footnote the Supreme Court's decision in CompuCredit . Id. at 214 n.5. Neither analysis addresses whether a § 1679b(a)(1) violation requires the involvement of a credit repair organization as defined in the CROA.
The analysis must "begin with the language of the statute." Frank G. v. Bd. of Educ. of Hyde Park , 459 F.3d 356, 368 (2d Cir. 2006). "Courts afford the words used their normal and commonly understood definitions," Doe v. Westport Bd. of Educ. , ––– F. Supp. 3d ––––, ––––, 2020 WL 869861, at *3 (D. Conn. 2020), and "determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case," Frank G. , 459 F.3d at 368 (internal quotation mark and citation omitted). To determine whether the language at issue is plain or ambiguous, courts may refer "to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole." Robinson v. Shell Oil Co. , 519 U.S. 337, 341, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997). The "inquiry ends, if the language of the statute is unambiguous and the statutory scheme is coherent and consistent, unless the case ... is sufficiently absurd to override its unambiguous terms." Frank G. , 459 F.3d at 368 (internal quotation marks and citation omitted). In the event the language is ambiguous, courts "resort to the canons of statutory construction to help resolve the ambiguity." Id. (quoting Gottlieb v. Carnival Corp. , 436 F.3d 335, 337 (2d Cir. 2006) ). Courts "have long held that where a statute is ambiguous, it ‘should be interpreted in a way that avoids absurd results.’ " Id. (quoting United States v. Dauray , 215 F.3d 257, 264 (2d Cir. 2000) ).
The analysis of § 1679b(a) 1 undertaken in Wright v. 21st Mortgage Corp. , No. 05-40829-JJR-13, 2007 WL 1459475 (N.D. Ala. 2007), cited by courts in this District and others, is persuasive. See, e.g. , Karakus , 941 F. Supp. 2d at 337 ; Moret v. Select Portfolio Servicing, Inc. , No. 08-61996-CIV, 2009 WL 1288062, at *3 (S.D. Fla. May 6, 2009) (citing Wright ’s "thorough analysis"); Berry v. Cook Motor Cars, Ltd. , No. AMD 09-426, 2009 WL 1971391, at *2 (D. Md. 2009) (agreeing with the "exhaustive[ ] and persuasive[ ]" analysis in Wright ). In Wright , the court noted that although, when "taken out of the context of the remainder of the Act," the "plain language [of § 1679b(a)(1) ] appears to extend liability to any person who might be found guilty of committing one of the prohibited practices, regardless of whether the practice involved a credit report organization," reading the statute "within the context of the entire Act" negated this conclusion. Wright , 2007 WL 1459475, at *11.
As the court noted in Wright , the CROA "begins with Congress’[s] findings and purposes," id. at *8, which are:
(a) Findings
The Congress makes the following findings:
(1) Consumers have a vital interest in establishing and maintaining their credit worthiness and credit standing in order to obtain and use credit. As a result, consumers who have experienced credit problems may seek assistance from credit repair organizations which offer to improve the credit standing of such consumers.
(2) Certain advertising and business practices of some companies engaged in the business of credit repair services have worked a financial hardship upon consumers, particularly those of limited economic means and who are inexperienced in credit matters.
(b) Purposes
The purposes of this subchapter are—
(1) to ensure that prospective buyers of the services of credit repair organizations are provided with the information necessary to make an informed decision regarding the purchase of such services; and
(2) to protect the public from unfair or deceptive advertising and business practices by credit repair organizations.
15 U.S.C. § 1679(a) - (b).
That court therefore construed the provision "within the context of the entire Act, including its codified findings and purposes, not as if § 1679b(a)(1) were a stand-alone statute." Wright , 2007 WL 1459475, at *11. As the court concluded, "[w]hen it enacted CROA, the focus of Congress was on the credit repair industry, not enacting a federal cause of action creating liability for every person guilty of making defamatory statements about a consumer's creditworthiness." Id.
That court further noted that "[r]emedies for such wrongs are adequately provided for under state tort laws," and courts "cannot assume Congress intended to add a federal question cause of action to the dockets of federal courts without some mention of its reasons for doing so in the codified findings and purposes or in the Act's legislative history." Id. As a result, "liability under CROA is limited to credit repair organizations ... and persons who are not credit repair organizations" but commit actions enumerated in § 1679b(a)(1) "in connection with the activities of, or transactions involving a credit repair organization." Id.
A number of other district courts have reached the same conclusion. See Lopez v. ML # 3 , 607 F.Supp.2d 1310, 1314 (N.D. Fla. 2009) ("In sum, when the Act is considered as a whole and in light of its explicitly stated purposes, it is clear that it applies only in the credit-repair context."); Berry , 2009 WL 1971391, at *2 ("This court agrees with the analysis in In re Wright . "); Karakus , 941 F. Supp. 2d at 338 ("Although some authority exists for the ... proposition that ‘no person’ should be read broadly enough to include mortgage lenders like Wells Fargo, this interpretation would run afoul of the purposes the statute was designed to achieve."); Moret , 2009 WL 1288062, at *3 ("The Court agrees with the Defendants that CROA was not intended to apply where no credit repair organizations, as defined by the Act, was involved."); Rautu v. U.S. Bank, N.A. , No. 2:12-cv-12961, 2013 WL 866480, at *6 (E.D. Mich. Mar. 7, 2013) (analyzing § 1679b(a)(1) in the context of the statute as a whole and concluding that "[i]nterpreting § 1679b ) as applicable to persons not affiliated with credit repair organizations would expand the scope of the statute beyond its stated purpose"); In re: Experian Info. Solutions, Inc. , No. cv-15-01212-PHX-GMS, 2017 WL 3574847, at *4 (D. Ariz. Aug. 17, 2017) ("[I]t is clear from the text and structure of the CROA that the ‘persons’ whose conduct the CROA regulates are credit repair organizations or persons associated with credit repair organizations.").
Nevertheless, as discussed below, because liability under this statute would not result in relief distinct from the relief available under other statutes, even if available, see CROA, 15 U.S.C. § 1679g(a) - (b) (providing an award in of "the greater of ... the amount of any actual damage sustained by such person as a result of such failure; or the amount paid by the person to the credit repair organization" and any punitive damages "as the court may allow"); CUTPA, Conn. Gen. Stat. § 42-110g (allowing plaintiff to recover "actual damages" and permitting the court, "in its discretion, [to] award punitive damages"); see also Parris v. Pappas , 844 F. Supp. 2d 271, 285 (D. Conn. 2012) (declining to award punitive damages under CUTPA where the "plaintiff's recovery theory and the facts she relie[d] on [for the CUTPA claim] [were] coextensive with the punitive damages already awarded for [another statutory] violation," and thus would amount to an impermissible "double recovery"); Indu Craft, Inc. v. Bank of Baroda , 47 F.3d 490, 497 (2d Cir. 1995) ("[A] plaintiff seeking compensation for the same injury under different legal theories is of course only entitled to one recovery."), the Court ultimately need not resolve whether, considering § 1679b(a)(1) in the context of the CROA as a whole, the statute applies only in the credit-repair context, or when credit repair organizations are in some way connected to the activity at issue.
Accordingly, default judgment on the Credit Repair Organizations Act claim will be denied as moot.
D. The Retail Installment Sales Financing Act Claim
RISFA "sets forth the conditions governing retail installment sales contracts under Connecticut law." James , 2018 WL 1582552, at *4 (citing Conn. Gen. Stat. § 36a-771). Section 36a-771(a) provides:
Every retail installment contract shall be in writing, shall contain all the agreements of the parties and shall be completed as to all essential provisions prior to the signing of the contract by the retail buyer. No installment contract shall be signed by the retail buyer when such contract contains blank spaces to be filled in except that this provision shall not apply to serial number or other identifying marks which are not available for description at the time of execution of such contract. The retail seller shall deliver to the retail buyer a true and complete executed copy of the retail installment contract at the time the retail buyer signs such contract.
Conn. Gen. Stat. § 36a-771(a). Section § 36a-771(b) provides:
Every retail installment contract for the purchase of consumer goods subject to section 36a-774 and this section shall set forth the information required to be disclosed under sections 36a-675 to 36a-686, inclusive, and the regulations thereunder, using the form, content and terminology provided therein.
Id. § 36a-771(b).
Ms. Hernandez argues that Saybrook Buick violated both § 36a-771(a) and (b) and that as a result, she is entitled to default judgment on these claims.
The Court agrees.
Courts in this District and Connecticut state courts have held in similar factual circumstances that "[a] TILA violation of the type present in this case also constitutes a violation of RISFA." James , 2018 WL 1582552, at *4 ; see Tirado v. Ofstein , No. HHDCV054014648S, 2008 WL 902506, at *13 (Conn. Super. Ct. Mar. 14, 2008) (where defendants charged a consumer for insurance as a condition of obtaining credit, and did not disclose the premium as part of the finance charge on the contract, the defendants violated TILA, and further holding that "defendants’ violations of TILA constitute violations of ... § 36a-771(b)"); Sterling v. Farran & Ezedine, LLC , No. 3:10-cv-1119 WWE, 2011 WL 219697, at *3 (D. Conn. Jan. 20, 2011) ("A violation of TILA also constitutes a violation of RISFA."); O'Neill , 2015 WL 8779594, at *10 ("Plaintiffs allege that [Defendant] has violated TILA, which also constitutes violation of RISFA.").
Having adequately pled that the failure to disclose the down payment and trade-in recorded on the Contract constitute a TILA violation, Ms. Hernandez therefore also is entitled to default judgment on her RISFA claim. See James , 2018 WL 1582552, at *4.
Ms. Hernandez also requests rescission of the Contract as a remedy for Saybrook Buick's RISFA violation. Mem. at 9.
"RISFA does not explicitly provide for such a remedy," but "the Connecticut Supreme Court [has] concluded that the statute implicitly provides for a right of rescission if a ‘retail installment contract ... is not completed in conformity’ with RISFA's mandates." Conley v. 1008 Bank St., LLC , No. 320-cv-284 (CSH), 2020 WL 4926599, at *12 (D. Conn. Aug. 22, 2020) (slip op.) (quoting Keyes v. Brown , 155 Conn. 469, 475, 232 A.2d 486 (1967) ). Under Connecticut law, "a retail buyer is entitled to seek a rescission of a retail installment contract when the retail seller has not complied with the provisions of [ § 36a-771(a) ]." Keyes , 155 Conn. at 476, 232 A.2d 486 ; see also Barco Auto Leasing Corp. v. House , 202 Conn. 106, 113, 520 A.2d 162 (1987) ("[T]here is no question that the defendants are entitled to rescission of the contract as an implied remedy under RISFA."). And "[w]hile rescission is ordinarily used as a remedy in fraud actions, where a party has executed a contract in reliance on a misrepresentation or omission, its availability in RISFA cases is not so constrained; rescission is available even where a RISFA violation is based on a technical defect under TILA." James , 2018 WL 1582552, at *5 (citing Tirado , 2008 WL 902506, at *13 ).
" ‘It is well established in Connecticut that a condition precedent to the remedy of rescission is the offer by the party seeking that remedy to restore the other party to its former condition as nearly as possible.’ " Id. (quoting Bonafide v. Tomun , No. CV065002770S, 2008 WL 5505439, at *2 (Conn. Super. Ct. Dec. 11, 2008) ); see also Keyes , 155 Conn. at 476, 232 A.2d 486 ("As a condition precedent to a rescission, the plaintiffs [are] required to allege and prove that they had restored or offered to restore [the defendant] to its former condition as nearly as possible.").
As previously discussed, Ms. Hernandez has established that Saybrook Buick violated RISFA, and has stated that she has "return[ed] the Vehicle" in an attempt to "restore[ ] Saybrook Buick to its position prior to the making of the Contract as nearly as possible." Mem. at 9. She therefore is entitled to rescission.
Accordingly, default judgment on the Retail Installment Sales Financing Act claim will be granted, as will Ms. Hernandez's request for rescission. E. The Civil Forgery Claim
The Court therefore need not, and does not, address Ms. Hernandez's claim in the alternative that she is entitled to revoke acceptance due to fraud or material misrepresentation under Conn. Gen. Stat. §§ 42a-2-608 and 42a-2-721. See Mem. at 9-10; Compl. ¶¶ 37-38.
In a civil forgery action under Connecticut law, "[a]ny person who falsely makes, alters, forges, or counterfeits any document, or knowingly utters, as true, any document falsely made, altered, forged or counterfeited, shall pay double damages to any party injured thereby." Conn. Gen. Stat. § 52-565. "Civil forgery is ‘a species of fraud.’ " Cartagena-Cordero v. Five Star Cars, LLC , No. 3:19-cv-1728 (SRU), 2020 WL 5912601, at *13 (D. Conn. Oct. 6, 2020) (slip op.) (quoting Criscuolo v. Shaheen , 46 Conn.Supp. 53, 736 A.2d 947, 952 (1999) ).
Ms. Hernandez argues that Saybrook Buick committed civil forgery when it "altered the insurance card and forged the signature on the card." Mem. at 10. In her view, Saybrook "tricked her into agreeing to the monthly payment of $656.99, by telling her that it covered insurance," and "[s]he otherwise would not have agreed to the transaction at this price, because it was much higher than agreed upon." Id.
Taking Ms. Hernandez's well-pled allegations as true, as the Court must, she has established that Saybrook Buick committed civil forgery by "alter[ing] the insurance card to list an expiration date of March 31[,] 2020 in order to deceive [her] into believing that she had coverage for a longer period," Compl. ¶ 22, and that she only agreed to purchase the Vehicle "[b]ased on Saybrook Buick's representations that the monthly payment included insurance," id. ¶ 23; Hernandez Aff. ¶¶ 16-20 (citing Insurance Card, Ex. 2 to Mot., ECF No. 9-4). See Cartagena-Cordero , 2020 WL 5912601, at *13.
Accordingly, default judgment on the civil forgery claim will be granted.
F. The Connecticut Unfair Trade Practices Act Claim
CUTPA provides that "[n]o person shall engage in ... unfair or deceptive acts or practices in the conduct of any trade or commerce." Conn. Gen. Stat. § 42-110b(a). It further provides that "[a]ny person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by section 42-110b, may bring an action." Conn. Gen. Stat. § 42-110g(a).
A plaintiff must meet two requirements to bring a CUTPA claim. "First, the plaintiff must establish conduct that constitutes an unfair or deceptive trade practice. Second, the plaintiff must establish a basis for a reasonable estimate of damages." Chem-Tek, Inc. v. Gen. Motors Corp. , 816 F. Supp. 123, 130 (D. Conn. 1993) (citing A. Secondino & Son, Inc. v. LoRicco , 215 Conn. 336, 576 A.2d 464 (Conn. 1990) ); see also McNeil v. Yale Univ. , 436 F. Supp. 3d 489, 534-36 (D. Conn. 2020) (dismissing CUTPA claims for failure to meet threshold requirements); Bellemare v. Wachovia Mortg. Corp. , 94 Conn. App. 593, 606 n.6, 894 A.2d 335 (2006) ("CUTPA provides a statutory cause of action for any person who has suffered an ascertainable loss of money or property as a result of an unfair trade practice.").
There are generally "two methods a court uses for determining whether a practice violates CUTPA." Locascio v. Imports Unlimited, Inc. , 309 F. Supp. 2d 267, 271 (D. Conn. 2004). "First, and simplest, the Commissioner of Consumer Protection sets forth certain regulations a violation of which is a per se violation." Id. (citing Conn. Gen. Stat. § 42-110b(c) (the Commissioner may "establish by regulation acts, practices or methods which shall be deemed to be unfair or deceptive"); Conn. Agencies Regs. § 42-110b-28 ). "Second, if no regulation covers the practice in question, the court applies the so-called ‘cigarette rule.’ " Id. ; see also Aztec Energy Partners, Inc. v. Sensor Switch, Inc. , 531 F. Supp. 2d 226, 232 (D. Conn. 2007). The factors weighed under the cigarette rule are
(1) whether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise—whether, 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 (or competitors or other business[persons]).
Fabri v. United Techs. Int'l, Inc. , 387 F.3d 109, 120 (2d Cir. 2004) (internal quotation marks and citation omitted); Cheshire Mortg. Serv., Inc. v. Montes , 223 Conn. 80, 105-06, 612 A.2d 1130 (1992). "All three criteria do not need to be satisfied to support a finding of unfairness." Cheshire Mortg. , 223 Conn. at 106, 612 A.2d 1130 (internal quotation marks and citation omitted); Ulbrich v. Groth , 310 Conn. 375, 409-10, 78 A.3d 76 (2013).
Under CUTPA implementing regulations, "it is a per se violation for a car dealership to fail to comply with a state or federal law concerning the sale of motor [v]ehicles." Liebman v. Better Way Wholesale Autos, Inc. , 243 F. Supp. 3d 208, 214 n.14 (D. Conn. 2017) (citing Conn. Agency Reg. § 42-110b-28(b)(23) ), vacated on other grounds , No. 3:15-cv-01263 (JBA), ECF No. 31 (June 29, 2017); see also O'Neill , 2015 WL 8779594, at *9 n.13 (" ‘It shall be an unfair or deceptive act or practice for a new car dealer or a used car dealer to violate any provision of a federal or state statute or regulation concerning the sale or lease of motor vehicles.’ " (quoting Conn. Agencies Reg. § 42-110b-28(b)(23) )).
Additionally, it is "an unfair or deceptive act or practice for a new car dealer or used car dealer to fail to sell or lease ... a motor vehicle in accordance with ... the advertised price." Conn. Agencies Regs. § 42-110b-28(b)(1) ; see Freeman v. A Better Way Wholesale Autos, Inc. , 174 Conn. App. 649, 664, 166 A.3d 857 (2017) (affirming a trial court finding that a used car dealer violated § 42-110b-28(b)(1) by refusing to sell a car to the plaintiff at the advertised price and, "instead, requir[ing] that she either pay more for the vehicle or buy additional service type contracts that she did not want"). Violation of this regulation is a per se CUTPA violation. See Negron v. Patriot Auto Sales, LLC , No. 3:17-cv-583 (JCH), 2019 WL 4463440, at *2 (D. Conn. Sept. 17, 2019) ("[S]ection 42-110b-28(b)(1) of the Connecticut Agencies Regulations [ ] makes it a per se violation of CUTPA for car dealers to sell vehicles for more than their advertised price.").
Since reliance is not required for CUTPA claims, the buyer does not need to have seen or relied upon the alleged misrepresentation in order to establish a car dealer's liability. See Konikowski v. Stephen Cadillac GMC, Inc. , No. X-03-HHD-CV-176078564-S, 2017 WL 7048666, at *4 (Conn. Super. Ct. Dec. 27, 2017) (observing that Conn. Gen. Stat. §§ 14-62a and Conn. Agencies Regs. §§ 42-110b-28(b)(1) and (23) do not "require[ ] knowledge on the part of the consumer of the advertised terms and conditions"). Indeed, "[i]t is well established that ‘[t]he CUTPA plaintiff need not prove reliance or that the representation became part of the basis of the bargain." Meyers v. Cornwell Quality Tools, Inc. , 41 Conn. App. 19, 35, 674 A.2d 444 (1996) (second alteration in original) (quoting Associated Inv. Co. P'ship v. Williams Assocs. IV , 230 Conn. 148, 158, 645 A.2d 505 (1994) ); see also Konikowski , 2017 WL 7048666, at *4 (denying a used car dealer defendant's motion to strike based on the plaintiff's lack of reliance on the advertised sale price "[b]ecause reliance is neither an element of CUTPA nor central to the plaintiff's theory of the case").
Ms. Hernandez claims that Saybrook Buick engaged in unfair and deceptive acts and practices in violation of CUTPA because (a) it violated the TILA, CROA and RISFA; (b) it listed a false down payment on the Contract; (c) it listed a trade-in vehicle on the Contract even though she did not trade in a vehicle; (d) it charged her for a service contract that was neither requested nor desired; and (e) it altered and forged an insurance card. Compl. ¶ 41(a)–(e).
"A violation of the Truth in Lending Act may constitute a CUTPA violation if the consumer can show substantial injury." Hernandez , 460 F. Supp. 3d at 183 (citing Cheshire Mortg. , 223 Conn. at 113-14, 612 A.2d 1130 (a TILA violation constituted a CUTPA violation where home buyers were charged a prepaid finance charge of $490, or "a full percentage point above the maximum 10 percent of the principal amount of the loan that a lender may charge to a borrower pursuant to § 36–224l.")); see also James , 2018 WL 1582552, at *6 ("The Connecticut Supreme Court has held that violations of TILA offend public policy under CUTPA."); O'Neill , 2015 WL 8779594, at *10 ("Plaintiffs have alleged a facially plausible CUTPA claim on multiple grounds, including, inter alia , violation of TILA.").
Ms. Hernandez alleges having suffered monetary loss because "the fake down payment and fake trade-in vehicle resulted in [her] paying additional sales tax and fees." Mem. at 11-12.
Accepting Ms. Hernandez's well-pled allegations as true, as the Court must, Saybrook Buick's violations caused her substantial injury. See Cheshire Mortg. , 223 Conn. at 113, 612 A.2d 1130 ("This TILA violation ... coupled with the plaintiff's violation of § 36-224l did cause the defendants a substantial injury since they were charged a prepaid finance charge of $490 ...."). And, as discussed above, she has stated a TILA violation.
Accordingly, default judgment on the CUTPA claim will be granted.
G. Damages
When awarding damages upon default judgment, a court "may conduct a hearing or it may make such a finding on the basis of documentary evidence if damages are ascertainable with reasonable certainty." Chance , 2017 WL 5515951, at *1. Where "plaintiffs have filed reasonably detailed declarations and exhibits pertaining to the damages incurred, and where the defendant has failed to make an appearance in the case, the Court can make an informed decision regarding damages without an evidentiary hearing." Llaurador-Perez , 2014 WL 5780706, at *5 (internal citation, quotation marks, and alterations omitted).
Ms. Hernandez claims actual damages, double damages for civil forgery, statutory damages under TILA, punitive damages under CUTPA, and attorney's fees and costs. She has submitted a sufficiently detailed affidavit and other factual information to permit the Court to grant damages without an evidentiary hearing.
1. Actual Damages
Under CUTPA, "a plaintiff is entitled to recover her actual damages plus, in the court's discretion, costs, attorneys[’] fees and punitive damages." Tirado , 2008 WL 902506, at *14 (citing Conn. Gen. Stat. § 42-110g).
Ms. Hernandez claims actual damages in the amount of $656.99, Mem. at 18, the amount of the payment tendered to Saybrook Buick, id. at 4. Based on the Contract, Ms. Hernandez's affidavit, and the Complaint, Saybrook Buick is liable to Ms. Hernandez for this amount.
Accordingly, Ms. Hernandez is entitled to $656.99 in actual damages.
2. Double Damages for Civil Forgery
Under Connecticut's civil forgery statute, "[a]ny person who falsely makes, alters, forges or counterfeits any document, or knowingly utters, as true, any document falsely made, altered, forged or counterfeited, shall pay double damages to any party injured thereby." Conn. Gen. Stat. § 52-565.
Ms. Hernandez argues that she is entitled to "double damages on the monthly payment of $656.99" under the civil forgery statute, "calculated by what she paid in a transaction she otherwise would have walked away from." Mem. at 10, 18.
As described above, Ms. Hernandez has sufficiently pled a civil forgery claim.
Accordingly, Ms. Hernandez is entitled double the actual damages, or another $656.99.
3. Statutory Damages Under the Truth in Lending Act
A defendant who violates TILA's disclosure requirements is liable for " ‘(1) any actual damage sustained by such person as a result of the failure’ and ‘(2) in the case of an individual action twice the amount of any finance charge in connection with the transaction ... except that the liability under this subparagraph shall not be less than $200 nor greater than $2,000.’ " James , 2018 WL 1582552, at *4 (alterations in original) (quoting 15 U.S.C. § 1640(a) ).
The finance charge listed on Ms. Hernandez's Contract was $16,423.03, which exceeds the statutory maximum damages. See Contract. She therefore is entitled to the statutory maximum of $2,000 for Saybrook Buick's TILA violation.
4. Punitive Damages
A "court may, in its discretion, award punitive damages" under CUTPA. Conn. Gen. Stat. § 42-110g(a). "In order for the court to award punitive ... damages under CUTPA, the evidence must reveal a reckless indifference to the rights of others or an intentional and wanton violation of those rights." Larobina v. Home Depot, USA, Inc. , 76 Conn. App. 586, 597-98, 821 A.2d 283 (2003) (quoting Gargano v. Heyman , 203 Conn. 616, 622, 525 A.2d 1343 (1987) ) (internal quotation marks and alterations omitted); see also Lydall, Inc. v. Ruschmeyer , 282 Conn. 209, 245, 919 A.2d 421 (2007) ("Punitive damages may be awarded only for outrageous conduct, that is, for acts done with a bad motive or with a reckless indifference to the interests of others." (internal citation and alterations omitted)).
"While the CUTPA statutes do not provide a method for determining punitive damages, courts generally award punitive damages in amounts equal to actual damages or multiples of the actual damages." Quinitchet v. Jemison , No. HHD-CV-176084848-S, 2019 WL 1504007, at *3 (Conn. Super. Ct. Feb. 22, 2019) (quoting Advanced Fin. Servs., Inc. v. Associated Appraisal Servs., Inc. , 79 Conn. App. 22, 34, 830 A.2d 240 (2003) ); see also Larobina , 76 Conn. App. at 590, 590 n.5, 821 A.2d 283 (upholding a punitive damages award of $1,000, ten times the $100 actual damages, based on a finding that the defendant's conduct was reckless); Bridgeport Harbour Place I, LLC v. Ganim , 131 Conn. App. 99, 149, 30 A.3d 703 (2011) (affirming an award of $60,000, six times the actual damages); Benham v. Wallingford Auto Park, Inc. , No. CV-020459418-S, 2003 WL 22905163, at *5 (Conn. Super. Ct. Nov. 26, 2003) (awarding $35,000 in punitive damages, seven times the actual damages).
In determining the amount to award, courts should consider factors including "whether the defendant's action was taken or omitted in order to augment profit"; "whether the wrongdoing was hard to detect"; "whether the injury and compensatory damages were small, providing a low incentive to bring the action"; and "whether the award will deter the defendant and others from similar conduct, without financially destroying the defendant." Ulbrich , 310 Conn. at 454, 78 A.3d 76 (citing Exxon Shipping Co. v. Baker , 554 U.S. 471, 493, 494, 504, 128 S.Ct. 2605, 171 L.Ed.2d 570 (2008) ) (internal quotation marks, alterations and citations omitted).
Ms. Hernandez argues that Saybrook Buick's conduct in this case merits an award of punitive damages because Saybrook Buick "forged an insurance card, resulting in [Ms. Hernandez] driving an uninsured vehicle"; "lied on the insurance coverage as a means to fool [her] into believing that the increase in the monthly payment was justified"; and "falsified information on the Contract to induce Santander into taking assignment of the loan by misrepresenting [Ms. Hernandez's] creditworthiness." Mem. at 15. She argues for an award of $10,000, which in her view "would have a deterrent effect against this dealership and other[s] engaging in similar future conduct." Id.
The Court agrees.
Saybrook Buick's "conduct in this case was egregious." Alexis v. PNM Enters., LLC , No. 3:17-cv-1622 (MPS), 2018 WL 5456491, at *6 (D. Conn. Oct. 29, 2018) (awarding punitive damages where the defendant "violated state and federal consumer protection laws and misrepresented the cost of financing a vehicle to the [plaintiffs]"). Saybrook Buick forged insurance documents, falsified contractual information, lied to creditors, and misrepresented the substance of the contract Ms. Hernandez entered into. See Compl. ¶¶ 7-27. Saybrook Buick's conduct appears to have been intentional and taken in order to augment profit, and the injury and compensatory damages are relatively small, which weigh in favor of a larger punitive damages award. See Ulbrich , 310 Conn. at 454, 78 A.3d 76.
The Court is aware, however, that some courts have "decline[d] to award punitive damages where other statutes impose multiple damages." James , 2018 WL 1582552, at *6 (citing Voll v. Dunn , No. X10UWYCV126018520, 2014 WL 7461644, at *12 (Conn. Super. Ct. Nov. 10, 2014) ); see also Cartagena-Cordero , 2020 WL 5912601, at *16 (declining to award punitive damages on a CUTPA claim where the plaintiff already recovered a $10,000 statutory award, statutory damages under TILA and double damages under the Connecticut civil forgery statute).
Ms. Hernandez has already recovered $2,000 in statutory damages under TILA, as well as $656.99 in actual damages and an additional $656.99 in double damages under the civil forgery statute. Given the outright falsification of documents and multiple misrepresentations made by Saybrook Buick both to Ms. Hernandez and to Santander, however, punitive damages are necessary to achieve the goal of deterrence. See Alexis , 2018 WL 5456491, at *6 ("[P]unitive damages are appropriate in this case to deter similar misconduct in the future...."); Bridgeport Harbour Place I, LLC , 131 Conn. App. at 139-40, 30 A.3d 703 ("While the CUTPA statutes do not provide a method for determining punitive damages, courts generally award punitive damages in amounts equal to actual damages or multiples of the actual damages.") (citations and internal quotation marks omitted).
Accordingly, the Court awards punitive damages equal to the amount of actual damages, or $656.99.
5. Attorneys’ Fees and Costs
As a result of the underlying statutory violation, Saybrook Buick is liable for reasonable attorney's fees and costs under TILA. See James , 2018 WL 1582552, at *4 (citing 15 U.S.C. § 1640(a)(3), which provides that a creditor who fails to comply with TILA requirements is liable for "the costs of the action, together with a reasonable attorney's fee as determined by the court"). The Court also may award reasonable attorney's fees and costs under CUTPA. See Artie's Auto Body, Inc. v. Hartford Fire Ins. Co. , 317 Conn. 602, 623, 119 A.3d 1139 (2015) (citing Conn. Gen. Stat. § 42-110g ) ("[T]he court may award ... costs and reasonable attorneys’ fees based on the work reasonably performed by an attorney[.]").
Ms. Hernandez will submit her fee claim following the adjudication of this motion under Federal Rule of Civil Procedure 54(d)(2), which allows parties to move for attorneys’ fees no later than fourteen days after the entry of judgment. See Mem. at 17 (citing Fed. R. Civ. P. 54(d)(2) ).
Accordingly, the Court will address attorneys’ fees and costs at such time that Ms. Hernandez moves for this relief.
IV. CONCLUSION
For the reasons explained above, the Court GRANTS in part and DENIES in part Ms. Hernandez's motion for default judgment.
The Court finds liability under TILA, RISFA, and CUTPA, as well as for civil forgery, and awards actual damages in the amount of $656.99, double damages under Conn. Gen. Stat. § 52-565 in the amount of $656.99, statutory damages under TILA in the amount of $2,000.00, and punitive damages in the amount of $656.99. In sum, Ms. Hernandez is awarded $3,970.97 against Saybrook Buick. Ms. Hernandez also is entitled to attorneys’ fees and costs in an amount to be later determined.
The Court further orders relief in the form of rescission of the Contract.
Given the liability already determined and the relief awarded, the Court denies as moot the issue of liability under the Credit Repair Organization Act.
The Clerk of Court is respectfully directed to enter judgment in favor of Ms. Hernandez in the total amount of $3,970.97 , and then to close the case.
SO ORDERED at Bridgeport, Connecticut, this 4th day of December, 2020.