Opinion
LLICV126006024S.
12-18-2012
Elizabeth BLAISDELL v. HOWARD LEE SCHIFF, P.C.
UNPUBLISHED OPINION
JOHN A. DANAHER III.
By motion filed July 17, 2012, the defendant, Howard Lee Schiff, P.C., moved for summary judgment on the plaintiff's two-count amended complaint. The plaintiff, Elizabeth Blaisdell, objected to the motion on August 16, 2012. This matter came before the court and was heard on November 13, 2012. The motion for summary judgment is denied.
On June 11, 2012, the plaintiff filed an amended complaint (# 106). Thereafter, subsequent to the defendant's motion for summary judgment, on November 6, 2012, the plaintiff filed a second amended complaint, erroneously entitled " amended complaint" (# 126). On November 13, 2012, the defendant filed an objection to the plaintiff's request to amend. On November 26, 2012, the court, Pickard, J., ruled that " [b]ecause the motion for summary judgment has already been argued, the objection is overruled if the case survives summary judgment" (# 128.01). This court's ruling on the motion for summary judgment will be based solely upon the plaintiff's June 11, 2012 amended complaint (# 106).
FACTUAL AND PROCEDURAL BACKGROUND
Count one of the plaintiff's amended complaint alleges abuse of process by the defendant. Her second count alleges a violation of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. The amended complaint alleges the following relevant facts. The plaintiff is a housekeeper who was widowed in 2004. Thereafter, she became delinquent on three Capital One credit cards. The accounts are identified as follows:
1. Account A
On August 26, 2008, the defendant brought suit, alleging that the plaintiff owed $8, 593.36 on an account now designated by the parties as " Account A" (Docket No. CV 08 5004572). Judgment entered on Account A on September 22, 2008, in the amount of $8, 480.41. Pursuant to an agreement entered into prior to the entry of judgment, the plaintiff agreed to pay the defendant $200 per month.
2. Account B
On or about March 5, 2009, a Small Claims judgment entered against the plaintiff on the second Capital One account, in the amount of $820.83, resulting in payments to the defendant of $40 per month. Small Claims Docket No. 163563. The parties now refer to this account as " Account B."
3. Account C
On June 22, 2010, the defendant informed the plaintiff that the defendant would be bringing a claim on a third Capital One account, now designated by the parties as " Account C, " seeking $3, 057.68.
The defendant asserts that this claim was brought in Small Claims court and bears Small Claims Docket No. 339080.
The amended complaint alleges that, with regard to Account A, the defendant's representative told the plaintiff that, despite a court order that the payment be $200 per month, the plaintiff could, nonetheless, make monthly payments of $100. Moreover, the defendant's representative told the plaintiff that she could make monthly payments of $100 on Account C. The plaintiff was making $40 per month payments on Account B. According to the plaintiff, the defendant misapplied the $40 monthly payments on Account B to the debt owed on Account A, creating a record with the defendant that the plaintiff was in default on Account B. The defendant relied on these inaccurate records regarding Account B to obtain a bank execution, resulting in the improper removal of $690.21 from the plaintiff's account in October 2009. Thereafter, the defendant reported to the plaintiff that Account B was paid in full. Despite this determination, the defendant contacted the plaintiff on October 22, 2011, and again as late as January 21, 2012, claiming that the plaintiff was delinquent on Account B.
Exhibit 4 attached to the defendant's memorandum reflects a withdrawal of the Account B small claims action on November 17, 2009, on the basis that the judgment was satisfied.
The defendant, further confusing matters, then erroneously sent the plaintiff a " return of overpayment" check in the amount of $1, 165.12. The plaintiff promptly returned the check to the defendant, but the defendant claimed, incorrectly, that the plaintiff improperly cashed that check. The defendant then obtained a second bank execution in the amount of $491.78.
On October 3, 2011, a third bank execution was obtained by the defendant in the amount of $775.62. The plaintiff alleges that this third execution was the product of the defendant's erroneous belief that the plaintiff had missed an April 2011 payment on Account A. According to the plaintiff, the defendant's error was caused by the misapplication of a $100 payment, intended for Account A, to Account B, which the plaintiff believed had been paid in full. This third execution caused the plaintiff to be overdrawn on her bank account and caused a check written to the Litchfield tax collector to be returned to the plaintiff for insufficient funds. The amended complaint alleges that a defendant's representative eventually acknowledged that the plaintiff's April 2011 payments were, in fact, timely made.
II
DEFENDANT'S POSITION
The defendant moves for judgment in its favor, arguing that there is no genuine issue of material fact that the plaintiff does not have a cause of action for abuse of process because the defendant did not use the legal process against the plaintiff in an improper manner or to accomplish a purpose for which it was not designed. The defendant also argues that there is no genuine issue of material fact that it did not violate the Fair Debt Collection Practices Act. In support of its motion, the defendant submits two affidavits from its managing partner, Christopher Moylan, dated July 17, 2012, and October 2, 2012. Moylan denies that the defendant received any payments from the plaintiff on Account B based on the defendant's office payment records. Moylan acknowledges that the defendant obtained a bank execution in excess of the amount owed on Account B, but blames the state marshal for the error. However, Moylan's affidavit seems to suggest that the defendant did not obtain an execution in excess of the amount owed while also acknowledging that the defendant erroneously sent a refund to the plaintiff and then requested that the check be returned when it was determined that an overpayment had not occurred. Aff. ¶ 12.
The court will refer to the July 17, 2012 affidavit as " Affidavit" (" Aff.") and the October 2, 2012 affidavit as " Supplemental Affidavit" (" Sup.Aff."). An incomplete version of the supplemental affidavit, dated October 2, 2012, was filed with the court on October 2, 2012. The complete affidavit was filed on October 29, 2012.
With regard to Account A, Moylan claims that the defendant sought a bank execution because the plaintiff stopped making payments in March 2010. Moylan asserts that the plaintiff resumed payments in August 2010, but only in the amount of $100 per month, as opposed to the court-ordered $200 per month. It is for that reason that the defendant sought another bank execution.
Additionally, Moylan claims that the plaintiff's allegations about her conversations with the defendant's staff, particularly regarding the payment schedule for Account A, cannot be true because his firm " has an absolute policy that there are no oral modifications of any payment arrangements in this manner." Aff. ¶ 14. In fact, Moylan asserts that he " carefully reviewed [the defendant's] file relating to this case" and determined that the facts, as alleged by the plaintiff, concerning the alleged oral modification conversation were inaccurate. Aff. ¶ 14; Sup. Aff. ¶ 9. Moylan states that the plaintiff " falsely alleges that Cynthia Thomas of our firm agreed to ‘ orally modify’ the court's order for payments ..." Sup. Aff. ¶ 9. He states that " we would never represent [that the defendant has the power to modify a court order] to any judgment debtor." Sup. Aff. ¶ 9. According to Moylan, this account of the conversation is supported by notes " made contemporaneously with the telephone call by [the plaintiff] to our office ..." Sup. Aff. ¶ 9. The court notes, however, that neither the contemporaneous telephone notes nor a copy of the defendant's office policy was attached as an exhibit to either of Moylan's affidavits.
The defendant moves for summary judgment on the second count based, in part, on its claim that the complaint was filed after the expiration of the applicable statute of limitations. The defendant contends that the statute of limitations relative to the Fair Debt Collection Practices act is one year from the date of the alleged violation.
III
PLAINTIFF'S POSITION
The plaintiff opposes the motion for summary judgment, asserting that there exist genuine issues of material fact concerning the representations made to the plaintiff by the defendant's representatives. In support of her opposition to the motion for summary judgment, the plaintiff submits her own affidavit. That affidavit asserts that the weekly payment owed on Account B was $35.00. The plaintiff attests that during 2008 and 2009, she made regular monthly payments, which the defendant misapplied to her account, and, as a result of the misapplication, the defendant improperly applied for a bank execution in April 2009. The plaintiff also attests that a defendant's representative agreed to accept payments in the amount of $100 per month on one of the plaintiff's accounts.
IV
DISCUSSION
A
Summary Judgment Standard
Summary judgment is appropriate if the pleadings, affidavits, and other proof submitted show that there are no genuine issues as to material fact and that the moving party is entitled to judgment as a matter of law. Practice Book § 17-49. " In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party ... The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law." (Internal quotation marks omitted.) Boyne v. Glastonbury, 110 Conn.App. 591, 595-96, 955 A.2d 645, cert. denied, 289 Conn. 947, 959 A.2d 1011 (2008). " [A] party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue." (Internal quotation marks omitted.) Id., at 596.
" The facts at issue [in the context of summary judgment] are those alleged in the pleadings." (Internal quotation marks omitted .) Arnone v. Connecticut Light & Power Co., 90 Conn.App. 188, 193, 878 A.2d 347 (2005). " A material fact is a fact which will make a difference in the result of the case ... [I]ssue-finding, rather than issue-determination, is the key to the procedure ... [T]he trial court does not sit as the trier of fact when ruling on a motion for summary judgment ... [Its] function is not to decide issues of material fact, but rather to determine whether any such issues exist." (Internal quotation marks omitted.) Keller v. Beckenstein, 117 Conn.App. 550, 557-58, 979 A.2d 1055, cert. denied, 294 Conn. 913, 983 A.2d 274 (2009).
" The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ... When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ... Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ... It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact ... are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006). " Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." Home Ins. Co. v. Aetna Life & Casualty Co., 235 Conn. 185, 202-03, 663 A.2d 1001 (1995).
B
Analysis
1
Abuse of Process
In Mozzochi v. Beck, 204 Conn. 490, 494, 529 A.2d 171 (1987), our Supreme Court held that " [a]n action for abuse of process lies against any person using a legal process against another in an improper manner or to accomplish a purpose for which it was not designed." (Internal quotation marks omitted.) The Court held, further, that " although attorneys have a duty to their clients and to the judicial system not to pursue litigation that is utterly groundless, that duty does not give rise to a third party action for abuse of process unless the third party can point to specific misconduct intended to cause specific injury outside of the normal contemplation of private litigation." Id., at 497.
In the present case, the plaintiff has alleged, inter alia, that she was advised by a representative of the defendant that the defendant would accept a $100 per month payment, relative to one of the plaintiff's three debts, despite a court order that the plaintiff pay $200 per month on that debt. According to the complaint, buttressed by the plaintiff's affidavit, the defendant, despite entering into the latter modification agreement, later claimed that the plaintiff was in default on her debt payments because she had only paid the $100 per month. As a result of the plaintiff's alleged default, the defendant obtained a bank execution. This court finds that such allegations, if true, are sufficient to state a cause of action for abuse of process.
2
Fair Debt Collection Practices
The plaintiff's second count alleges a violation of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. Specifically, the plaintiff alleges that the defendant acted in violation of 15 U.S.C. § 1692f which prohibits, inter alia, " [t]he collection of any amount (including any interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law."
The plaintiff asserts multiple claims demonstrating the defendant's unfair debt collection practices. According to the plaintiff, she and the defendant reached an oral agreement that the plaintiff would make payments in an amount less than the amount ordered by the court. Nonetheless, the defendant falsely determined that that the plaintiff was behind in her payments because she did not pay the court-ordered amount. The defendant then relied on this artificially created deficiency to justify a bank execution.
This claim, supported by the plaintiff's affidavit, is sufficient to defeat the motion for summary judgment. See, e.g., Gallagher v. Gurstel, Staloch & Chargo, P.A., 645 F.Supp.2d 795 (D.Minn.2009). The defendant's motion for summary judgment can only succeed if the court accepts the defendant's internal records as incapable of error, and if the court accepts the defendant's version of events as true because the defendant has an office " policy" that prevents its staff from making oral modifications of court judgments. The defendant asserts that this policy prohibits its representatives from accepting payments in amounts less than those ordered by a court. Thus, based on this office policy and the defendant's contemporaneous telephone notes, the defendant claims that the plaintiff's version of events is " false."
The foregoing arguments advanced by the defendant cannot prevail. This court is required to view the evidence in the light most favorable to the plaintiff. The court's responsibility is to identify, not resolve, disputed issues of material fact, and the court is required to hold the movant to a strict standard. The application of the foregoing principles mandates the conclusion that the defendant has not met its burden of showing the absence of any genuine issue of material fact.
The defendant argues, alternatively, that the claims in count two are barred by the one-year statute of limitations applicable to the Fair Debt Collection Practices Act, 15 U.S.C. § 1692k(d). That section provides that " [a]n action to enforce any liability created by this title may be brought in any appropriate United States District Court ... or in any other court of competent jurisdiction, within one year from the date on which the violation occurs." 15 U.S.C. § 1692k(d).
In the present case, the plaintiff filed her initial complaint on January 30, 2012. She filed an amended complaint on June 11, 2012, alleging, for the first time, a violation of the Fair Debt Collection Practices Act. Thus, the question presented is whether the conduct at issue occurred prior to June 11, 2011.
It is true that the amended complaint alleges, for example, unlawful conduct by the defendant that occurred in October 2009. However, the complaint in this case is not limited to any single event, but instead alleges that the defendant engaged in an ongoing series of errors and misstatements relative to the plaintiff's account, which may have begun prior to June 11, 2011, but which allegedly continued long after that date. See Am. Compl. ¶ ¶ 10-18. Even if some of the defendant's alleged actions are time-barred, the amended complaint alleges misconduct that occurred after June 11, 2011, and so the court may assert jurisdiction over those claims that are based on post-June 11, 2011 actions. Kaplan v. Assetcare, Inc., 88 F.Supp.2d 1355, 1360 (S.D.Fla.2000).
The allegations of ¶ ¶ 1-20 of the first count are incorporated by reference into the second count of the amended complaint.
The defendant argues, in particular, that ¶ ¶ 6-8 and 10 of the second count set forth allegations that are time-barred. " The rules with respect to summary judgment do not provide for judgment on various paragraphs of a single count. The motion must be directed against an entire count or claim." Pullen v. Morris, Superior Court, judicial district of New Haven, Docket No. 304627 (May 6, 1993, Hadden, J.); see Tracy v. Charisma Aviation, Ltd., Superior Court, judicial district of New Haven, Docket Nos. 27 07 25, 28 43 15 (January 20, 1993, Hadden, J.) (8 Conn. L. Rptr. 282) (holding that Rules of Practice do not provide for summary judgment on several claims of a single count); Schofield v. BIC Corp., Superior Court, judicial district of Ansonia-Milford, Docket No. CV 86 021244 (January 31, 1991, Fuller, J.) (3 Conn. L. Rptr. 229) (summary judgment not appropriate for rendering judgment on paragraphs of a count).
V
CONCLUSION
For all of the foregoing reasons, the defendant's motion for summary judgment is denied.
So ordered.