Opinion
No. WWM CV 09-5005545-S
June 7, 2011
RULING ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
This case is an action for money damages by the plaintiff, George Jones, against the defendant law firm of Howard Lee Schiff, P.C., for violations of various provisions of the Federal Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692, et seq. Pending before the court is defendant's Motion for Summary Judgment. For the following reasons, the motion is granted.
I
The law governing summary judgment is well settled. As our Appellate Court has summarized:
Practice Book § [17-49] requires that 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. A material fact is a fact that will make a difference in the result of the case . . . The facts at issue are those alleged in the pleadings.
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. To satisfy his burden the movant must make a showing that is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent.
It is frequently stated in Connecticut's case law that, pursuant to Practice Book §§ 17-45 and 17-46, a party opposing a summary judgment motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact . . . [d]emonstrating a genuine issue requires a showing of evidentiary facts or substantive evidence outside the pleadings from which material facts alleged in the pleadings can be warrantably inferred . . . Moreover, [t]o establish the existence of a material fact, it is not enough for the party opposing summary judgment merely to assert the existence of a disputed issue. Such assertions are insufficient regardless of whether they are contained in a complaint or a brief . . . Further, unadmitted allegations in the pleadings do not constitute proof of the existence of a genuine issue as to any material fact.
Rockwell v. Quintner, 96 Conn.App. 221, 227-29, 899 A.2d 738, cert. denied, 280 Conn. 917, 908 A.2d 538 (2006) (Citations omitted; internal quotation marks omitted).
The Practice Book further mandates that "[a]ny adverse party shall at least five days before the date the motion is to be considered on short calendar file opposing affidavits and other available documentary evidence. Affidavits, and other documentary proof not already part of the file, shall be filed and served as are pleadings." Practice Book § 17-45. "Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto." Practice Book § 17-46.
CT Page 19259
II
Defendant argues, inter alia, the judgment should enter in its favor because the plaintiff has failed to demonstrate that he comes within the protection of the FDCPA. The act is available to any consumer who claims to have been the target of any unfair practice by a debt collector, however, the provisions of the act only apply when the underlying debt is one incurred for personal, family or household purposes:
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.
The defendant has demonstrated that it has sought to discover evidence of the nature of the debt in this case in discovery, but has been thwarted by plaintiff's dilatory strategies. The defendant asked plaintiff to admit that he does not know if the debt was incurred for purchase of goods or services for personal, family or household debt. Plaintiff objected to the question. See Answer to Request for Admission No. 33. Moreover, in response to the defendant's instant motion for summary judgment pointing to the lack of evidence of the nature of the debt, defendant presents no proof that he comes within the protection of the statute. At trial, plaintiff must prove he comes within the protection of the statute that he invokes. That is an elemental requirement of standing. It is a threshold issue on which he has the burden of proof. See Lienfactors, LLC v. Chung Kung, No. MMX CV 09-5006629-S (July 9, 2010). As with most plaintiffs seeking a statutory remedy, he must prove that he comes within the zone of interests protected by the statute. See Gill v. Diorio, 51 Conn.App. 140, 145-46, 720 A.2d 526 (1998). If plaintiff does not demonstrate that he has evidence on an essential predicate of his claim, then, if defendant seeks it, summary judgment should enter in favor of the defendant. See Brooks v. Sweeney, 299 Conn. 196, 221, 9 A.3d 347 (2010).
In the instant case, plaintiff has not demonstrated that he comes within the protection of the Federal Fair Debt Collection Practice Act. Accordingly, summary judgment must enter in favor of the defendant. Having disposed of the case on this point, it is unnecessary to resolve the other grounds raised by defendant for judgment in its favor.
III
For all of the foregoing reasons, the defendant's motion for summary judgment is granted.