Opinion
No. MMX CV 09 5006629 S
July 9, 2010
MEMORANDUM OF DECISION
On March 31, 2009, the plaintiff, LienFactors, LLC, commenced this foreclosure action against the defendant, Chung Kung. On January 8, 2010, the defendant filed his counterclaims. Currently before the court is the defendant's motion for summary judgment as to both of his counterclaims. The first counterclaim alleges violations of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692, et seq. The second counterclaim alleges violations of the Creditors' Collection Practices Act (CCPA), General Statutes § 36a-645, et seq., and corresponding regulations promulgated by the Department of Banking. Specifically, the counterclaims contain the following allegations of fact.
No answer to the plaintiff's complaint was ever filed by the defendant.
The defendant is a consumer or consumer debtor, as contemplated by the FDCPA and CCPA. The plaintiff is a debt collector and creditor as contemplated by the FDCPA and CCPA. The plaintiff initiated this action to foreclose a judgment lien on the property of the defendant, and the plaintiff claimed attorneys fees in its complaint. The attorney of record for the plaintiff, Benjamin Morris, is a managing member of the plaintiff company, thereby making his representation pro se. As a result of this action, the plaintiff has violated the FDCPA and CCPA by 1) misrepresenting the character, amount, or legal status of the debt when making a claim for attorneys fees as a pro se party, and 2) attempting to collect a fee not permitted by law when making a claim for attorneys fees as a pro se party.
In response to the defendant's counterclaim, on April 7, 2010, the plaintiff filed its amended answer. Therein, the plaintiff denied all of the allegations made in the defendant's counterclaims and asserted several special defenses.
The plaintiff asserted the following special defenses in its answer: 1) the defendant does not have a private right of action under CCPA; 2) violations were unintentional and resulted from a bona fide error; 3) in the event the plaintiff had not purchased the defendant's account at the time of the alleged communication, said representation was not false, deceptive, or misleading; 4) any representation by the plaintiff was not a material statement and did not materially mislead the defendant; and 5) any representation by the plaintiff was made without deception or the intention of being deceptive or misleading and was not unfair or unconscionable.
The defendant filed the instant motion for summary judgment and supporting memorandum of law as to his counterclaims on January 14, 2010. With his memorandum, the defendant provides the following evidence: 1) a print out of principal members of LienFactors, LLC from the Secretary of State's website; 2) a copy of findings made by the Connecticut Grievance Panel; and 3) a copy of the order issued in CUDA Associates v. Milo, Superior Court, judicial district of Stamford, Docket No. CV 09 5011064 (December 17, 2009, Tierney, J.). The plaintiff's memorandum in opposition was filed on April 8, 2010, and no evidence in support of the memorandum was provided. The matter was subsequently heard at short calendar on April 12, 2010.
As requested by defendant's counsel at short calendar, the court does not rely on the findings of the Grievance Panel.
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007).
"In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). "In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006). "[A]ny party may move for summary judgment upon any counterclaim or cross complaint as if it were an independent action . . ." Practice Book § 17-44. When a party moves for summary judgment "and there [are] no contradictory affidavits, the court properly [decides] the motion by looking only to the sufficiency of the [movant's] affidavits and other proof." Heyman Associates No. 1 v. Insurance Co. of Pennsylvania, 231 Conn. 756, 795, 653 A.2d 122 (1995). Nevertheless, "[s]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way . . . [A] summary disposition . . . should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party." (Citations omitted; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).
In his memorandum of law in support of the motion, the defendant argues that he is entitled to summary judgment on his counterclaims because Attorney Morris is a managing member of the plaintiff company, which makes his representation of the plaintiff in this matter pro se. Therefore, the defendant argues, that because the plaintiff's representation is pro se, there can be no award of attorneys fees under Connecticut case law. In addition, the defendant asserts that the plaintiff is a debt collector, and the debt it seeks to collect is within the purview of the FDCPA. The defendant further asserts that the plaintiff is a creditor, and that the defendant is a consumer owing a debt that is within the purview of the CCPA.
In its brief, the plaintiff points to numerous insufficiencies in the defendant's evidence and that material issues of fact exist as to: 1) whether the plaintiff is a creditor under both the FDCPA and the CCPA; 2) whether the defendant is a consumer under both the FDCPA and the CCPA; 3) whether Morris's appearance qualifies as a pro se appearance; 4) whether LienFactors is the appropriate defendant; 5) whether any alleged violation was the result of a bona fide error; and 6) whether the defendant has standing to enforce a violation of the CCPA.
Specifically, the plaintiff argues that the defendant has not established that the debt arises out of a transaction entered primarily for personal, family, or household purposes as required by 15 U.S.C. § 1692a(5) and General Statutes § 36a-645(3) under the FDCPA and CCPA, respectively, nor has the defendant established that the plaintiff was a creditor or debt collector under the FDCPA or CCPA. Lastly, the plaintiff asserts that the defendant has not established that he is a consumer under either of the respective acts.
To be considered a "consumer," "creditor," or "debt collector," within the purview of the FDCPA and CCPA, the parties must be involved in a credit/debt transaction as defined by the relevant statutes. The FDCPA defines "consumer" as "any natural person obligated or allegedly obligated to pay any debt." (Emphasis added.) 15 U.S.C. § 1692a(3). The FDCPA also defines "creditor" as "any person who offers or extends credit creating a debt or to whom a debt is owed . . ." (Emphasis added.) 15 U.S.C. § 1692a (4). It also defines "debt collector" as "any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another . . ." (Emphasis added.) 15 U.S.C. § 1692a(6).
Section 1692a(5) of the FDCPA defines "debt" and provides: "The term `debt' means any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes, whether or not such obligation has been reduced to judgment." (Emphasis added.) "[T]he first question in any claim brought under the FDCPA is whether the allegedly violative conduct was used in an attempt to collect a `debt' within the meaning of the FDCPA." Beal v. Himmel Bernstein, LLP, 615 F.Sup.2d 214, 216 (S.D.N.Y. 2009). "To bring a claim under the FDCPA, it must be alleged that the debt owed was a consumer obligation." Machado v. Southern New England Telephone, Superior Court, judicial district of New Haven, Docket No. CV 04 4000577 (December 22, 2004, Martin, J.). "By the plain terms of the statute, not all obligations to pay are considered `debts' subject to the FDCPA. See Bass v. Stolper, Koritzinsky, Brewster Neider, 111 F.3d 1322, 1324 (7th Cir. 1997)." (Internal quotation marks omitted.) Hawthorne v. Mac Adjustment Inc., 140 F.3d 1367, 1371 (11th Cir. 1998).
"The determination of whether a debt is incurred primarily for personal, family, or household purposes is a fact driven one, and should be decided on a case-by-case (not necessarily plaintiff-by-plaintiff) basis looking at all relevant factors." Machado v. Southern New England Telephone, supra, Superior Court, Docket No. CV 04 4000577. In Machado v. Southern New England Telephone, the plaintiff brought an action arising from a dispute over a debt that the plaintiff had incurred as a sole proprietor of his business. The court held that the FDCPA did not govern the loan because it was a business debt and therefore not within the meaning of § 1692a(5). Id.
The defendant also brings a cause of action under the CCPA, which parallels the FDCPA. See Krutchkoff v. Fleet Bank, NA., 960 F.Sup. 541, 547-48 (D.Conn. 1996) (noting only two major distinctions between the FDCPA and CCPA). The CCPA provides that "[n]o creditor shall use any abusive, harassing, fraudulent, deceptive or misleading representation, device or practice to collect or attempt to collect any debt." General Statutes § 36a-646. The act further defines "debt" as "an obligation or alleged obligation arising out of a transaction in which the money, property, goods or services which are the subject of the transaction are for personal, family, or household purposes . . ." (Emphasis added.) General Statutes § 36a-645(3). Similar to the FDCPA, a threshold showing that the debt arises from a transaction for personal, family or household purposes must be made in order for the debt to come within the purview of the CCPA. See Homestead Funding Corp. v. Welch, Superior Court, judicial district of Windham, Docket No. 067260 (August 28, 2002, Foley, J.) ("[A] necessary requirement to establishing a violation of the CCPA is to allege that the claim involves a consumer transaction").
The defendant in the present case has not provided any evidence from which the court may determine whether the nature of the debt was for business purposes or for personal uses. The only information proffered is the bare assertion made in the defendant's brief that the debt was originally owned by Citibank. With no evidence upon which the court can use to determine that the debt at issue comes within the purview of the FDCPA or CCPA, the defendant's motion for summary judgment as to his counterclaims is denied.