Opinion
No. CV 11-6008731
September 30, 2011
MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION TO STRIKE, #114
The plaintiff, FIA Card Services, N.A., moves to strike the special defenses filed by the defendant, Cathy Durrett, on March 30, 2011, on the ground that they fail to state legally sufficient defenses.
The plaintiff commenced this action on December 10, 2010, alleging non-payment of credit card charges by the defendant in the amount of $20,011.72, on her Bank of America credit card account. The defendant asserts by way of special defenses that she is not liable to pay those charges because the alleged sums arose in connection with gambling debts, and broad anti-gambling statutes prohibit the collection of these sums.
Under Practice Book § 10-39(a)(5), a motion to strike may challenge the legal sufficiency of the allegations of any answer to any complaint or any part of that answer, including any special defense contained therein. Mingachos v. CBS, Inc., 195 Conn. 91, 109, 491 A.2d 368 (1985).
A special defense is used by a defendant who seeks the admission of evidence that is not inconsistent with the claim of the plaintiff, but nevertheless tends to show that the plaintiff has no cause of action. See Practice Book § 10-50. Fidelity Bank v. Krenisky, 72 Conn.App. 700, 705, 807 A.2d 968, cert. denied, 262 Conn. 915, 811 A.2d 1291 (2002); Pawlinski v. Allstate Insurance Co., 165 Conn. 1, 6, 327 A.2d 583 (1973).
"In ruling on a motion to strike, the court must accept as true the facts alleged in the special defense and construe them in the manner most favorable to sustaining their legal sufficiency." (Citations omitted, internal quotation marks omitted.) Barasso v. Rear Still Hill Road, LLC, 64 Conn.App. 9, 13, 779 A.2d 198 (2001).
The defendant's first special defense asserts that the alleged sums due and owing the plaintiff arose in connection with gambling debts, and General Statutes § 52-553 prohibits the plaintiff from seeking repayment of the sums. Sec. 52-553 provides: "All wagers, and all contracts and securities of which the whole or any part of the consideration is money or other valuable thing won, laid, or bet, at any game, horse race, sport or pastime, and all contracts to repay any money knowingly lent at the time and place of such game, race, sport or pastime, to any person so gaming, betting or wagering, or to repay any money lent to any person who, at such time and place, so pays, bets or wagers, shall be void . . ." (Emphasis added.)
The defendant alleges that the plaintiff knew or should have known that the debts she incurred arose in connection with gambling activities, and § 52-553 voids any "contract" which applies to repayment of money lent for gambling activities. She alleges no facts as to how the plaintiff "knew or should have known" that the debts were incurred in connection with gambling activities.
In Sokatis v. Bakaysa, 293 Conn. 17, 975 A.2d 51 (2009), the Supreme Court examined the scope of General Statutes § 52-553 and discussed the state's public policy regarding gambling and contracts related thereto. Given that the laws of the state of Connecticut permitted many forms of wagering, the court determined that the legislature intended to exempt from the operation of § 52-553 those contracts supported by consideration in the form of money won or bet in the course of legal gambling. Id., 26. When reading § 53-553 together with §§ 52-278a and 52-278b, the statutes defining and criminalizing gambling, the court determined that these statutes were intended both to criminalize gambling not otherwise authorized by law and to deter illicit gambling by rendering all contracts facilitating such activities void and unenforceable. Id. 27.
"In a 2003 amendment to § 52-553, the legislature found it necessary to exempt explicitly the sale of a raffle ticket pursuant to § 7-172 from the operation of § 53-553. The legislative history clearly indicates that the purpose of this exemption was to allow the purchase of raffle tickets with a credit card, a form of wagering on credit. The remarks of Senator David J. Cappiello in support of the amendment make this clear. `Connecticut is one of the only states that does not allow the use of a credit card to purchase raffle tickets . . . [T]hey can go to the casinos and gamble with their credit cards, but for some reason, they cannot sue them because of an antiquated 1940s law to purchase raffle tickets.'" Id., n. 4.
The court finds that General Statutes § 52-553 is not applicable to the present case. Assuming the truth of the defendant's allegations, that the sums due and owing the plaintiff "have arisen in connection with gambling debts," there are no allegations in this first special defense that these transaction were knowingly entered into by the plaintiff. The first special defense is legally insufficient and is stricken.
In the second special defense, the defendant cites to 31 U.S.C. Section 5363, the Unlawful Internet Gambling Enforcement Act" (Act), which provides, in relevant part: "No person engaged in the business of betting or wagering may knowingly accept, in connection with the participation of another person in unlawful Internet gambling . . . (1) credit, or the proceeds of credit, extended to or on behalf of such other person (including credit extended through the use of a credit card) . . ." (Emphasis added.) She argues that because this act makes internet gambling unlawful and against public policy, "the role in which the plaintiff played in this gambling activity was a contract formed for an illegal purpose and therefore contrary to public policy." Second special defense, ¶ 4.
"The phrase business of betting or wagering does not include the activities of a financial transaction provider, or any interactive computer service or telecommunications service. Thus, the criminal prohibition contained in § 5363 of the Act applies only to gambling related businesses, not any financial intermediary or Internet-service provider whose services are used in connection with an unlawful bet." Interactive Media Entertainment Gaming Association v. Attorney General of the United States, 580 F.3d 113, 114 n. 1 (3d Cir. 2009).
The court finds that the 31 U.S.C. Section 5363 is not applicable to the present case and that the second special defense is, too, legally insufficient.
The court grants the motion to strike the first and second special defenses.