Opinion
No. HHD-CV-05-4014648-S
March 14, 2008
MEMORANDUM OF DECISION RE ACTION IN DAMAGES
STATEMENT OF CASE
This dispute involves the consumer purchase of a used motor vehicle. The plaintiff, Nilda Tirado, filed a nine-count complaint, dated July 11, 2005, against the defendants, James Ofstein ("Ofstein") d/b/a James Motor Cars ("dealership") and Atlantic Coast Capital, Inc. ("Atlantic"), alleging claims arising from breach of implied warranty of merchantability, violation of the Magnuson-Moss Warranty Act, fraud, revocation of acceptance, violations of Truth in Lending Act ("TILA"), Retail Installment Sales Financing Act ("RISFA"), Connecticut Unfair Trade Practice Act ("CUTPA") and liability as holder of a contract. The vehicle was purchased by the plaintiff from the dealership in September 2004. The part of the purchase price which was financed by a retail installment contract was assigned to Atlantic, which is a sales financing company that accepts the assignment of retail installment contracts from car dealerships in Connecticut.
II FINDINGS OF FACT
The plaintiff has been a Hartford resident since 2000 when she moved from Puerto Rico with her husband, Guilermo Rivera ("Rivera"). She graduated from high school and studied banking in college. While in Puerto Rico, she worked in a hospital billing department. After moving to Hartford, she was employed as a housekeeper at the YMCA. She now works as a housekeeper at the Marriott Hotel. She is fluent in Spanish; her English skills are limited. While in Puerto Rico, the plaintiff's husband received an associate degree in accounting and worked at a bank. After moving to Hartford, he was employed as an assistant accountant at the YMCA. He now works as a court interpreter.
Ofstein is an individual doing business as James Motor Cars. He has been in the auto sales business for over thirty years and has owned the dealership for the past twenty-eight years. James Motor Cars has been at its present location, serving the local community, since 1944. At the time of the sale, signs were posted advertising that the dealership did business in Spanish. In September 2004, Carlos Yong ("Yong") was employed as a salesman for the dealership. He is fluent in Spanish.
Atlantic is the d/b/a for Serjam, Inc. It is a Connecticut corporation doing business as a sales finance company that accepts assignment of retail installment contracts from Connecticut car dealerships.
The vehicle in question, a 1996 Ford Windstar, was purchased by the dealership at the Hartford-Springfield Auction in East Granby. The minivan was sold with a red light status, which means that the seller or auction house has no obligation to disclose defects. If there are any problems with the vehicle, the only recourse is for paperwork issues, i.e., title. The dealership spent about $450 servicing it prior to sale, including brakes, electric, cleaning and a safety inspection.
In September 2004, the plaintiff needed to purchase a motor vehicle for personal, family and household purposes, but her credit rating was low. She used to drive past the dealership and saw the signs in Spanish. The plaintiff decided to go there to buy a used vehicle. On September 11, 2004, she went to James Motor Cars and spoke with Yong. They spoke only in Spanish. The plaintiff told Yong that she was interested in buying a used car. Yong showed her several vehicles on the lot. He then told the plaintiff about a 1996 Ford Windstar that was undergoing repairs at a carwash on Franklin Avenue.
The plaintiff returned the next day with her nephew to look at the minivan, which had 121,595 miles. The nephew also did not speak English. They met Yong and took the vehicle for a test drive. It ran without any problems. After some discussion, the plaintiff agreed to purchase the van for $3,695.
The plaintiff spoke with Yong about getting a service contract. She asked him about the coverage under the service contract. Yong told her that the service contract covered the van for twelve months or 12,000 miles. The dealer would pay if anything went wrong with the vehicle. The cost of the service contract was $995. The plaintiff agreed to purchase the service plan.
Several documents had to be completed to finalize the sale of the minivan. The documents were generated by a form company and were supposed to comply with the state requirements. When completing the sales documents, the plaintiff did not speak with anyone besides Yong. They conversed in Spanish during the entire transaction.
The retail purchase order was dated September 11, 2004, but it was not signed until September 13, 2004. The purchase order reflected a sale price of $3,695. The service contract cost $995. The plaintiff had to make a down payment of $1,150, which she claimed was made with two checks. The purchase order included an "as is" clause which stated: "THIS VEHICLE IS SOLD `AS IS.' THIS MEANS THAT YOU WILL LOSE YOUR IMPLIED WARRANTIES. YOU WILL HAVE TO PAY FOR ANY REPAIRS NEEDED AFTER SALE. IF WE HAVE MADE ANY PROMISES TO YOU, THE LAW SAYS WE MUST KEEP THEM, EVEN IF WE SELL `AS IS.' TO PROTECT YOURSELF, ASK US TO PUT ALL PROMISES INTO WRITING." The plaintiff testified that Yong did not explain the documents but only told her where to sign. She had never bought a car before on her own and did not understand the meaning of the "as is" clause.
The plaintiff had to finance the full purchase price of the van. The parties completed a retail installment contract and security agreement. The financing contract was dated and signed on September 13, 2004. The total sale price was $6,191.44, minus the deposit of $1,150. The amount financed was $4,425.56, with total payments of $5,041.44. The loan had a seventy-two-month term with an annual percentage rate of 19 percent, the highest allowable under Connecticut law. A charge was included for single-interest insurance or VSI. The VSI charge of $245 was also reflected on the purchase order and was included in the amount financed. The plaintiff testified that she did not understand what VSI stood for and Yong did not explain the charge. Even though the financing included the VSI charge, the single-interest insurance section was not checked off, and the charge was not properly disclosed. The contract was assigned to Atlantic. An Errors and Omissions/Compliance Agreement was also signed, but Atlantic never brought the failure to complete the single-interest insurance section to the attention of the plaintiff or the dealership.
The service contract was also signed on September 13, 2004. It covered a term of one year or 12,000 miles with $100 deductible per visit. Yong told the plaintiff that the service contract covered driveline problems. The plaintiff testified at trial that she was later surprised to learn that the coverage did not start right away. There was a grace period of thirty days and 1,000 miles after date of sale. In another section, it was noted that: "The following Special State Requirements and/or Disclosures apply if this contract was purchased in one of the following states and supersedes any other provision herein to the contrary." The form states that Connecticut law requires an automobile dealer to provide a warranty for used vehicles with a sale price of $3,000 but less than $5,000 coverage for thirty days or 1,500 miles, whichever comes first.
Ofstein testified that the company practice was to use a highlighter to emphasize several of the provisions of the sales documents, including the "as is" clause in the purchase order and the grace period provision of the service contract. He also testified as to his understanding of Connecticut law regarding these provisions. According to Ofstein, it is legal to sell a car "as is" under certain circumstances. The car has to be at least seven years old. Ofstein testified that there is no implied warranty and no right to rescind an automobile contract under these circumstances.
After completing the necessary paperwork, the plaintiff drove the minivan home without any problems. The vehicle was driven for a few days before any problems surfaced. On Sunday morning, Rivera drove the van to church. He attempted to start the vehicle after church, but it would not start. Rivera had to ask several church members to help him push the minivan back home.
When Rivera came home, he told the plaintiff about the problems with the minivan. They decided that Rivera would contact the dealership. The next day Rivera called the dealership and spoke with Yong. They conversed in Spanish. Rivera told Yong what had happened. Yong told him to leave the keys in the car and someone would come to get the vehicle. When Rivera came home from work that day, the vehicle was gone. The van was towed to John Son's Automotive on New Britain Avenue in Hartford.
Rivera spoke with Yong a couple of days later and asked him about the status of the vehicle. Yong told him to contact John Son's Automotive directly. Rivera called the garage and was told that the minivan had engine problems. Rivera then called Yong and told him what the garage had said. Yong told Rivera not to worry and that the dealer would take care of it. After speaking with Yong, Rivera went to the garage and saw that the engine had been disassembled. He was told that someone needed to authorize payment for the work that was needed.
Efforts were made to determine whether the vehicle was covered under the service contract. Rivera called the toll-free number. Ofstein attempted to get the repairs covered under the service contract. A service plan representative was sent out to inspect the minivan. It was later determined that the vehicle was not covered under the service contract because the thirty days/1500 mile grace period had not expired when the vehicle broke down.
During this period, Rivera called Yong numerous times. Rivera became convinced that his calls were irritating Yong. He once overheard Yong complaining that Rivera kept calling him. On several other occasions, he was either put on hold or his call went unanswered. Rivera testified that he only dealt with Yong and never saw Ofstein until the trial.
On September 24, 2004, the plaintiff wrote a check to the dealership for $140.04. The check represented two weeks of weekly payments for the car. She later cancelled the checking account because the van was not being fixed. She never made any payments under the installment contract.
Discussions between the parties regarding the vehicle continued over the next few months. Ofstein claimed that he spoke with Rivera and the plaintiff's daughter about the van. Ofstein said he called the house and spoke with the plaintiff. The plaintiff gave the phone to her daughter to speak with Ofstein. The plaintiff testified that she did not talk to Yong or anyone else about the van.
A replacement engine was finally located. The cost to replace the engine was approximately $1,600. The dealership asked the plaintiff to pay for half of the costs, $800. The plaintiff refused to pay for any of the repairs because she had already paid $995 for the service contract. According to Ofstein, he made an offer to the plaintiff to pay $500, which amounted to the dealer's profit on the sale. His final offer was a full refund and $500 in attorneys fees or to provide the plaintiff with a replacement vehicle. Rivera insisted that the defendant never offered for the plaintiff to pay less than $800. Rivera testified that at some point he told Yong to take the van back. Neither the plaintiff nor Rivera had any direct dealings with Atlantic.
At some point, the plaintiff decided to hire an attorney. Rivera was present when the plaintiff met with her attorney and signed a written retainer agreement. On November 23, 2004, the plaintiff's attorney sent a letter to the dealership and Atlantic. The letter informed Ofstein and Atlantic of the plaintiff's cancellation of the contract and set forth her demand. The plaintiff's deposit of $1,150 has not yet been returned.
Atlantic never repossessed the vehicle. Several months after the vehicle was brought to John Sons Automotive, Rivera saw it at the garage with a new license plate. On another occasion, he saw the minivan being driven on the street. The evidence shows that the vehicle was eventually deemed abandoned and confiscated for the unpaid storage fees.
III DISCUSSION A Claims 1. Breach of Implied Warranty of Merchantability
In count one, the plaintiff alleges breach of implied warranty of merchantability under Connecticut General Statutes § 42a-2-314 as to Ofstein only. The plaintiff claims that on or about September 11, 2004, she purchased a 1996 Ford Windstar from Ofstein for personal, family and household purposes. She signed a retail installment contract that was subsequently assigned to Atlantic. Ofstein was, at all times, a merchant with respect to used cars, as that term is defined in General Statutes § 42a-2-104(1). By operation of General Statutes § 42a-2-314 and the contract, the vehicle was sold with a warranty that it would be merchantable at the time of purchase by the plaintiff. Two days after purchase, the vehicle ceased operating because the crankshaft broke and the engine was damaged. Ofstein refused to repair it pursuant to the warranty, instead demanding that the plaintiff pay for the repairs. As a result of the above described defects, the vehicle was not in merchantable condition when sold to plaintiff and it was not fit for the ordinary purpose for which a car is used. Ofstein breached the warranty of merchantability implied by law and contract in the instant transaction and is liable to plaintiff for her actual, incidental, and consequential damages.An "implied warranty of merchantability" is a seller's assurance implied by law that the goods are fit for the ordinary purposes for which they are sold. See General Statutes § 42a-2-314. General Statutes § 42a-2-314, entitled "Implied warranty: merchantability; usage of trade," provides in relevant part: "(1) Unless excluded or modified as provided by section 42a-2-316, a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind . . . (2) Goods to be merchantable must be at least such as . . . (c) are fit for the ordinary purposes for which such goods are used; . . . (3) Unless excluded or modified as provided by section 42a-2-316 other implied warranties may arise from course of dealing or usage of trade. General Statutes § 42a-2-316(3)(a) provides in relevant part that "all implied warranties are excluded by expressions like `as is' . . ." Although in this case, Ofstein appears to have effectively excluded the warranty of merchantability because the contract for the sale of the vehicle conspicuously stated that the vehicle was sold "as is," Ofstein's disclaimer is invalid under 15 U.S.C. § 2308.
15 U.S.C. § 2308 provides in relevant part: "(a) . . . No supplier may disclaim or modify (except as provided in subsection (b) of this section) any implied warranty to a consumer with respect to such consumer product if (1) such supplier makes any written warranty to the consumer with respect to such consumer Product, or (2) at the time of sale, or within 90 days thereafter, such supplier enters into a service contract with the consumer which applies to such consumer product. Because in this case the plaintiff bought a service contract from Ofstein at the time of sale of the vehicle, under 15 U.S.C. § 2308(a)(2), Ofstein could not, and did not, effectively disclaim the implied warranty of merchantability.
Subsection (c) further provides: "A disclaimer, modification, or limitation made in violation of this section shall be ineffective for purposes of this chapter and State law." (Emphasis added.) 15 U.S.C. § 2308(c).
Furthermore, in Earls v. Condor Capital Corp., Superior Court, judicial district of New Britain, Docket No. CV 98 0491748 (August 30, 2001, Dos Santos, J.), the court considered whether a used car dealership breached the implied warranty of merchantability. The court found that "[t]he evidence established that the dealership is a dealer in used automobiles and is therefore a merchant within the meaning of § 42a-314 . . . [T]he vehicle was not fit for the ordinary purpose for which it was intended . . . [T]he suspension problems were so severe that the vehicle could not be driven. Further, the vehicle would not start without the plaintiff disconnecting and reconnecting the battery. [Therefore], the vehicle was not fit for the ordinary purpose for which it was intended, normal and reliable driving." Id.
On page one of the service contract, exhibit 3, the last paragraph begins as follows: "[t]he implied warranty of merchantability on the vehicle is not waived; the implied warranty is not covered under this service contract." Further, a provision on page five of the service contract states that, under Connecticut law, there are certain warranties that cover "certain classes" of used vehicles, however, that language does not specify which used vehicles.
The evidence demonstrates that the vehicle was not in merchantable condition at the time of sale. It broke down within a few days after it was purchased. The engine needed to be replaced. Like the vehicle in Earls, the vehicle here was not fit for the ordinary purposes it was intended for, i.e., normal and reliable driving. The court finds that there was no waiver or disclaimer of the implied warranty of merchantability and that Ofstein breached the warranty. Therefore, the plaintiff is entitled to recover so much of the price as has been paid, $1,150, pursuant to General Statutes §§ 42a-2-314, 42a-2-608 and 42a-2-711.
As to count one, for breach of implied warranty of merchantability, the plaintiff is entitled to $1,150 as actual damages.
2 Magnuson-Moss Warranty Act
In count two, the plaintiff alleges failure to comply with the Magnuson-Moss Warranty Act as to Ofstein only. The plaintiff claims that the vehicle is a consumer product, as that term is defined in § 2301(1) of the Magnuson-Moss Federal Warranty Act, 15 U.S.C. §§ 2301- 2312, and was manufactured after July 4, 1975. Ofstein is a warrantor, as that term is defined in § 2301(5) of Magnuson-Moss. The plaintiff is a consumer, as that term is defined in § 2301(3) of Magnuson-Moss. Ofstein failed to comply with its obligations under the implied warranty of merchantability, and he is liable to the plaintiff for her damages, reasonable attorneys fees and costs pursuant to 15 U.S.C. § 2310(d).
In Motor Vehicle Manufacturers, Ass'n. of the United States, Inc. v. Abrams, 899 F.2d 1315 (2d Cir. 1990), cert. denied, 499 U.S. 912, 111 S.Ct. 1122, 113 L.Ed. (1991), the court reviewed the history of the Magnuson-Moss Warranty Act. "After many years of study, and partially in response to `a rising tide of complaints . . . from irate owners of motor vehicles complaining that automobile manufacturers and dealers were not performing in accordance with the warranties on their automobiles,' H.R. Rep. No. 93-1107, 93rd Cong., 2d Sess. (1974), reprinted in 1974 U.S. Code Cong. Admin. News 7702, 7708, Congress passed the Magnuson-Moss Warranty Act (the Act) in 1975. See Pub.L. 93-637, 88 Stat. 2183. The thrust of the Act is disclosure. `In order to improve the adequacy of information available to consumers, prevent deception, and improve competition in the marketing of consumer products,' the Act requires that `any warrantor warranting a consumer product' must `fully and conspicuously disclose in simple and readily understood language the terms and conditions of such warranty.' 15 U.S.C. § 2302(a). The Act does not require that a warranty be provided, but mandates that, if one is given, it not be misleading." Motor Vehicle Manufacturers, Ass'n. of the United States, Inc. v. Abrams, supra, 899 F.2d 1317.
Under the Magnuson-Moss Warranty Act, 15 U.S.C. § 2310(d) provides in relevant part: "(1) Subject to subsections (a)(3) and (e), a consumer who is damaged by the failure of a supplier, warrantor, or service contractor to comply with any obligation under this chapter, or under a written warranty, implied warranty, or service contract, may bring suit for damages and other legal and equitable relief — (A) in any court of competent jurisdiction in any State or the District of Columbia; or (B) in an appropriate district court of the United States, subject to paragraph (3) of this subsection. (2) If a consumer finally prevails in any action brought under paragraph (1) of this subsection, he may be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of cost and expenses (including attorneys fees based on actual time expended) determined by the court to have been reasonably incurred by the plaintiff for or in connection with the commencement and prosecution of such action, unless the court in its discretion shall determine that such an award of attorneys fees would be inappropriate."
In Ernst v. Deere Co., Superior Court, judicial district of Hartford, Docket No. CV 01 0804804 (January 20, 2004, Beach, J.), aff'd, 92 Conn.App. 572, 886 A.2d 845 (2005), the court found a violation of the Magnuson-Moss Warranty Act regarding the purchase of a lawn mower which never worked to the satisfaction of the purchaser, but nevertheless performed serviceably. The court held: "[t]his act provides remedies for violations of warranties, and includes a provision for attorneys fees. Because I find a defect for purposes of the express warranty, and because, additionally, I am satisfied that the plaintiff has met his burden of proof as to the defendant's inability to repair the problem area; see 15 U.S.C. § 2304; I find a violation of the Act. The only practical effect of this finding is that the plaintiff may make a claim for attorneys fees."
Pursuant to 15 U.S.C. § 2310(d), an aggrieved buyer may claim damages for breach of implied warranty and is entitled to an award of attorneys fees. Here, the dealership failed to comply with its obligations under the implied warranty of merchantability, and it is liable to the plaintiff for her damages, reasonable attorneys fees and costs pursuant to 15 U.S.C. § 2310(d).
As to count two, for violation of the Magnuson-Moss Warranty Act, the plaintiff is entitled to $1,150 as actual damages plus a reasonable attorneys fee.
3 Fraud
In count three, the plaintiff alleges fraud as to Ofstein only. The plaintiff alleges that Ofstein's representative who sold the vehicle to the plaintiff informed her that the service contract that plaintiff purchased for $995 would cover all defects with the vehicle. The plaintiff claims that this statement was fraudulent, because the service contract provider refused to cover the needed repairs to the engine. Ofstein's representative made the statement for the purpose of making the plaintiff rely upon it so that she would purchase the extended warranty. The plaintiff did rely on the statement to her detriment, because the service contract would not, and did not, cover all defects with the vehicle. Ofstein is liable to the plaintiff for her damages.
"The elements of a fraud action are: (1) a false representation was made as a statement of fact; (2) the statement was untrue and known to be so by its maker; (3) the statement was made with the intent of inducing reliance thereon; (4) the other party relied on the statement to his detriment." (Internal quotation marks omitted.) Angiolillo v. Buckmiller, 102 Conn.App. 697, 710, 927 A.2d 312, cert. denied, 284 Conn. 927, 934 A.2d 243 (2007). "Fraud is not to be presumed but must be proven by clear and satisfactory evidence . . . Fraud and misrepresentation cannot be easily defined because they can be accomplished in so many different ways. They present, however, issues of fact . . . The trier is the judge of the credibility of the testimony and the weight to be accorded it." (Citations omitted; internal quotation marks omitted.) Miller v. Appleby, 183 Conn. 51, 55, 438 A.2d 811 (1981).
In this matter, the dealership's representative, Yong, told the plaintiff that the vehicle would be covered by the service contract. That statement was untrue as the service contract clearly did not cover the used vehicle during the thirty-day grace period after she purchased the service contract. Further, Yong told the plaintiff that all defects would be covered by the plaintiff in order to induce the plaintiff to purchase the service contract, and lastly, the plaintiff relied upon this to her detriment. The plaintiff only had use of the vehicle for a few days. Ofstein wanted the plaintiff to pay half the cost of repairs. The vehicle was eventually deemed abandoned and confiscated for storage fees because Ofstein would not pay for the repairs.
General Statutes § 42a-2-721 provides that "[r]emedies for material misrepresentation or fraud include all remedies available under this article for nonfraudulent breach." Under General Statutes § 42a-2-711, 714, and 715, the plaintiff is entitled to a refund of her down payment and any costs she incurred as a result of buying the vehicle. In the present matter, there is clear and satisfactory evidence of fraudulent misconduct in the form of deceit or misrepresentation on the part of the dealership.
As to count three, for fraud, the plaintiff is entitled to $1,150 as actual damages plus common-law punitive damages in the amount of $2,500.
4 Revocation of Acceptance
In count four, the plaintiff alleges revocation of acceptance pursuant to § 42a-2-608 of the Uniform Commercial Code as to both defendants, Ofstein and Atlantic. The plaintiff claims that the nonconformities of the vehicle resulting from the breaches of warranty described above substantially impaired the value of the vehicle to the plaintiff. The plaintiff accepted the vehicle without discovery of all the nonconformities described above. Additionally, as described above, Ofstein committed fraud upon the plaintiff. The plaintiff justifiably and effectively revoked acceptance of the vehicle on November 23, 2004, in accordance with General Statutes §§ 42a-2-608 and 721. Ofstein and Atlantic received notification of this revocation. At all relevant times, Ofstein and Atlantic have refused to comply with the plaintiff's revocation of acceptance of the vehicle and have refused to return all amounts paid by the plaintiff. Ofstein and Atlantic are liable to the plaintiff for her damages, which include all amounts she has paid for the vehicle as well as her incidental and consequential damages.
General Statutes § 42a-2-608 provides: "The buyer may revoke his acceptance of a lot or commercial unit whose nonconformity substantially impairs its value to him if he has accepted it (a) on the reasonable assumption that its nonconformity would be cured and it has not been seasonably cured; or (b) without discovery of such nonconformity if his acceptance was reasonably induced either by the difficulty of discovery before acceptance or by the seller's assurances. (2) Revocation of acceptance must occur within a reasonable time after the buyer discovers or should have discovered the ground for it and before any substantial change in condition of the goods which is not caused by their own defects. It is not effective until the buyer notifies the seller of it. (3) A buyer who so revokes has the same rights and duties with regard to the goods involved as if he had rejected them." "Where . . . the buyer rightfully rejects or justifiably revokes acceptance then with respect to any goods involved, and with respect to the whole if the breach goes to the whole contract . . . the buyer may cancel and whether or not he has done so may in addition to recovering so much of the price as has been paid (a) `cover' . . ." General Statutes § 42a-2-711(1). "The test for substantial impairment is both subjective and objective; it focuses first, on the needs and circumstances of the particular buyer seeking to revoke, and then considers whether, from an objective standpoint, the value of the goods to the buyer has in fact been impaired." Web Press Services Corp. v. New London Motors, Inc., 203 Conn. 342, 346-47, 525 A.2d 57 (1957).
Although General Statutes § 42a-2-608 applies only to the sales of goods, the revocation of acceptance claim can be asserted against Atlantic, a financing agency, through application of General Statutes § 52-572g(a), which provides in relevant part that "[a]ny holder in due course of a promissory note, contract or other instrument . . . evidencing an indebtedness, signed or executed by a buyer in connection with a credit transaction covering consumer goods, as defined in section 42a-9-102 or for consumer services rendered, shall be subject to all of the claims and defenses which the buyer has against the seller arising out of the transaction or against the person or persons providing the services, limited to the amount of indebtedness then outstanding in connection with the credit transaction, provided the buyer shall have made a prior written demand on the seller with respect to the transaction." Because the court finds that Atlantic is the holder in due course of the contract evidencing an indebtedness, signed by the plaintiff in connection with a credit transaction covering a purchase of a vehicle and because the court finds that the plaintiff made a prior written demand on Ofstein and Atlantic, the plaintiff can assert revocation of acceptance claim against Atlantic.
In Conte v. Dwan Lincoln-Mercury, Inc., 172 Conn. 112, 374 A.2d 144 (1976), where the buyer revoked acceptance of a vehicle fourteen months after the sale following a continuous series of negotiations and repairs, the Supreme Court reviewed the law relating to revocation of acceptance: "The Uniform Commercial Code — Sales is the law of this state. Before its enactment, breach of warranty and rescission were considered alternate remedies . . . The code is much more comprehensive and explicit . . . It generally avoids the use of the ambiguous term `rescission' . . . and provides a specific remedy permitting a buyer under proper conditions to force the seller to retake nonconforming goods even if the buyer has already accepted them . . . Under the code, a buyer's revocation of acceptance is a distinct course of action not to be confused with rescission by mutual consent . . . nor is it an alternative remedy for breach of warranty . . . When a buyer justifiably revokes acceptance, he may cancel and recover so much of the purchase price as has been paid. General Statutes § 42a-2-711. On the other hand, the basic measure of damages for breach of warranty is the difference between the value of the goods accepted and the value that they would have had if they had been as warranted. § 42a-2-714 . . .
"Section 42a-2-608 of the General Statutes sets up the following conditions for the buyer who seeks to justify revocation of acceptance: (1) a nonconformity which substantially impairs the value to the buyer; (2) acceptance (a) with discovery of the defect, if the acceptance is on the reasonable assumption that the nonconformity will be cured, or (b) without discovery of the defect, when the acceptance is reasonably induced by the difficulty of the discovery or the seller's assurances; (3) revocation within a reasonable time after a nonconformity was discovered or should have been discovered; and (4) revocation before a substantive change occurs in the condition of the goods not caused by their own defects. The buyer has the burden of establishing any breach with respect to the goods accepted. § 42a-2-607(4). Revocation of acceptance is possible only where the nonconformity substantially impairs the value of the goods to the buyer. For this purpose the test is not what the seller had reason to know at the time of contracting; the question is whether the non-conformity is such as will in fact cause a substantial impairment of value to the buyer though the seller had no advance knowledge as to the buyer's particular circumstances . . .
"Whether goods are substantially impaired by non-conformity and whether revocation of acceptance is given within a reasonable time are questions of fact subject to the [fact finder's] determination . . . The reason why a `substantial impairment of value' must exist before a buyer may justifiably revoke his acceptance is to preclude revocation for trivial defects or defects which may easily be corrected . . . Each case must be examined on its own merits to determine what is a `substantial impairment of value' to the particular buyer . . .
"Not only must there be a substantial impairment of value to the buyer, but the revocation must take place `within a reasonable time after the buyer discovers or should have discovered' the defect. General Statutes § 42a-2-608(2). `What is a reasonable time for taking any action [under the code] depends upon the nature, purpose and circumstances of such action.' § 42a-1-204(2)." (Citations omitted; internal quotation marks omitted.) Conte v. Dwan Lincoln-Mercury, Inc., supra, 172 Conn. 119-22.
The Supreme Court also addressed the issue of the seller's efforts to make repairs. "Under the Uniform Commercial Code, the dealer did have the right to attempt to cure any defects in the automobile; § 42a-2-508; but this opportunity does not last for an indefinite period of time . . . One policy of the Code is to encourage the parties to work out their differences and so to minimize losses resulting from defective performance . . . This basic remedy for justifiable revocation was not effectively limited by the warranty provision that the buyer was only entitled to the repair and replacement of defective parts. The code provides that it shall be liberally construed; § 42a-1-102; and recognizes that it is the very essence of a sales contract that at least minimum adequate remedies be available. § 42a-2-719 . . . The code provides that [w]here circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in this title. § 42a-2-719(2)." (Citations omitted; internal quotation marks omitted.) Conte v. Dwan Lincoln-Mercury, Inc., supra, 172 Conn. 122-23.
In Conte, the Supreme Court held: "Although the plaintiff did not revoke his acceptance until fourteen months after the sale, it is significant that he was in almost constant touch with the dealer concerning the condition of the vehicle, relying on the dealer's continued assurances that the automobile would be repaired satisfactorily. When it became apparent to the buyer that repeated attempts at adjustment had failed, he unequivocally notified [the defendant] that he was revoking his acceptance. Under the circumstances of this case, involving an almost continuous series of negotiations and repairs, the delay in the notice did not prejudice the dealer and the delay was not unreasonable." Conte v. Dwan Lincoln-Mercury, Inc., supra, 172 Conn. 122.
Like the plaintiff in Conte, the plaintiff in this case seeks revocation of acceptance of the vehicle. The plaintiff only had use of the vehicle for a few days before it broke down. The vehicle was towed to a repair shop. The service contract did not cover the repairs. Ofstein wanted the plaintiff to pay half the cost of the repairs. The plaintiff subsequently ceased making payments. She made two payments, but cancelled the checks. Rivera told Yong to take back the van. On November 23, 2004, Otstein and Atlantic received written notification of revocation from the plaintiff. The plaintiff gave reasonable notice of the revocation. Her revocation was timely. The issues relating to the service contract's terms and applicability further justify the revocation of acceptance. Therefore, the plaintiff is entitled to a refund of her purchase price pursuant to General Statutes §§ 42a-2-314, 42a-2-608 and 42a-2-711.
As to count four, for revocation of acceptance, the plaintiff is entitled to $1,150 as actual damages plus a court order that she is not liable to Atlantic under the retail installment sales contract.
5 Truth in Lending Act
In count five, the plaintiff alleges a violation of the TILA as to both defendants, Ofstein and Atlantic. The plaintiff claims that the retail installment sales contract was a consumer credit sale with the defendants under TILA, 15 U.S.C. § 1602(g) and (h) and Regulation Z § 226.2(p) and (t), and General Statutes § 36a-676. Ofstein and Atlantic required the plaintiff to purchase VSI (vendors single-interest insurance) for $245. The vendor's single-interest insurance policy covered by the $245 charge does not meet the requirements for the exclusion of that premium from the finance charge under Reg. Z. Ofstein and Atlantic failed to properly disclose the finance charge, amount financed, and annual percentage rate, in violation of TILA. Said violation is apparent on the face of the contract. Ofstein and Atlantic are liable to the plaintiff for her actual damages, but in no event an amount less than $1000, plus her reasonable attorneys fee pursuant to 15 U.S.C. § 1640(a)(2)(A)(l) and (a)(3).
Earlier in this case, the court discussed the TILA in ruling on the plaintiff's motion for summary judgment. Tirado v. Ofstein, Superior Court, judicial district of Hartford, Docket No. CV 05 4014648 (August 2, 2007, Wiese, J.). "The federal Truth in Lending Act . . . was enacted as part of the consumer Credit Protection Act of 1968, and is codified at 15 U.S.C. § 1601 et seq. The purpose of [the act] is to promote the informed use of consumer credit by requiring disclosures about its terms and cost . . . Title 15 of the United States Code, § 1604 provides that [t]he Board [of Governors of the Federal Reserve System] shall prescribe regulations to carry out the purposes of this title. That board has promulgated [the act's] regulations, known as Regulation Z, which are codified at 12 C.F.R. § 226.1 et seq . . .
"The purpose of the act is to assure that consumers receive `a meaningful disclosure of credit terms.' 15 U.S.C. § 1601(a). This means that disclosures should operate to inform consumers so that they are aware of the cost of financing . . . Moreover, the act requires that disclosures be made `clearly and conspicuously . . .' 15 U.S.C. § 1632(a).
"[U]nder the [act] and Regulation Z, [vendor's single interest] premiums may be excluded from the `finance charge' if: (1) the retail installment contract discloses the cost of [vendor's single interest] insurance . . . (2) the retail installment contract discloses that [vendor's single interest] coverage may be obtained from a person of the consumer's choice . . . (3) the [vendor's single interest] insurer waives his right to subrogation . . . and (4) in the case of a multi-year [vendor's single interest] insurance policy, the premium in fact attributable to all the [non-vendor's single interest] coverages included in the policy is $5.00 or less." (Citations omitted; internal quotation marks omitted.) Tirado v. Ofstein, supra, Superior Court, Docket No. CV 05 4014648.
In this case, on page two of the retail and installment contract (exhibit two), there is a section labeled "Single-Interest Insurance" which is left unchecked. Specifically, the section states: "[y]ou must purchase single-interest insurance as part of this sale transaction. You may purchase the coverage from a company of your choice, reasonably acceptable to use. If you buy the coverage from or through us, you will pay $___ for ___ of coverage." Even though this section was not checked, the plaintiff was charged for this insurance. Further, in a section just above the "Single-Interest Insurance" provision, there is another provision which states "[i]f you get insurance from or through us, such insurance ___ will ___ will not provide coverage for personal liability and property damage caused to others." The plaintiff was charged for VSI insurance by Ofstein and Atlantic, however, this section was also left blank. On exhibit two, the plaintiff was charged for VSI insurance under a section with the heading "Insurance Premiums." This amount was included in the "Amount Financed," and was not included as a finance charge.
The issue is whether leaving the box that is supposed to be checked blank on the contract regarding VSI insurance and then charging the plaintiff a VSI amount despite the required box not being checked amounts to insufficient disclosure under Regulation Z of TILA.
See exhibit two.
"While the Truth in Lending provides a maximum tolerance of $10 below or above the correct finance charge, a creditor will have problems if it includes in the amount financed an amount that should have been disclosed as a part of the finance charge. There is no allowance for a deviation in the disclosure of the amount financed." E. Griffith, "Truth in Lending: The Right of Rescission, Disclosure of the Finance Charge, and Itemization of the Amount Financed in Closed-end Transactions," 6 Geo. Mason L. Rev. 191, 240 (1998). "[L]iability flows from even minute deviations from the requirements of the statute and of Regulation Z. The statute aims to assure a meaningful disclosure of credit terms so that consumers may shops comparatively for credit . . . this goal requires that even minor statutory and regulatory strictures be followed by all creditors in detail . . . Thus, we have said that once the court finds a violation, no matter how technical, it has no discretion with respect to the imposition of liability . . . unless, of course, the creditor is excused by an applicable statutory defense." (Citations omitted; internal quotation marks omitted.) Charles v. Krauss Co., LTD., 572 F.2d 544, 546 (5th Cir. 1978). In Kramer v. Marine Midland Bank, 559 F.Sup. 273, 278, (S.D.N.Y. 1993), the court held that TILA was to be construed liberally and in the consumer's favor, and that, therefore, due to unclear and misleading language in the contract that the plaintiff had entered into with the defendant, the defendant had violated TILA.
In this case, it is unclear whether the plaintiff was properly charged VSI insurance. The `Retail Installment Contract and Security Agreement' states the annual percentage rate, finance charge, amount financed, total payments, and payment schedule in accordance with § 1605(u), however, the box labeled "Single-Interest Insurance" was not checked off. Although this would seem to be only a technicality, TILA requires strict compliance, and construed liberally, in favor of the consumer, the defendants in this matter violated TILA. The vendor's single-interest insurance policy covered by the $245 charge does not meet the requirements for the exclusion of that premium from the finance charge under Reg. Z. The defendants failed to properly disclose the finance charge, amount financed and annual percentage rate, in violation of TILA.
This result depends on what the parties testified to. There is federal case law that supports the proposition that where charges are `apparent,' not necessarily from the disclosure itself, there is no liability under TILA. Burns v. Bank of America, 115 Fed.Appx. 105 (2d Cir. 2004); Balderos v. City Chevrolet, 214 F.3d 849, 853 (7th Cir. 2000); Taylor v. Quality Hyundai, Inc., 150 F.3d 689, 694 (7th Cir. 1998), cert. denied, 525 U.S. 1141, 119 S.Ct. 1032, 143 L.Ed.2d 41 (1999). However, the stronger trend seems to be in favor of requiring creditors and dealerships to strictly comply with TILA regulations.
As to count five, for violation of TILA, the plaintiff is entitled to statutory damages in the amount of $1000 plus a reasonable attorneys fee.
6 Retail Installment Sales Financing Act
In count six, the plaintiff alleges failure to comply with RISFA as to both defendants, Ofstein and Atlantic. The plaintiff claims that the plaintiff's contract constituted a retail installment contract within the meaning of General Statutes § 36a-770(c)(12), and plaintiff is a retail buyer within the meaning of General Statutes § 770(c)(11). The defendants' violations of TILA constitute violations of RISFA, pursuant to General Statutes § 36a-771(b). The defendants also violated General Statutes § 36a-772(a), because the true annual percentage rate VSI insurance as a finance charge. The plaintiff has returned the vehicle to the defendants, and they are therefore in the same position as they were prior to consummation of the contract, as nearly as is possible. The plaintiff is entitled to a rescission of the contract and a return of all monies paid pursuant to the contract.
General Statutes § 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-685, inclusive [the Truth in Lending Act], and the regulations thereunder, using the form, content and terminology provided therein." A violation of the TILA or Regulation Z is also a violation of RIFSA. Under RISFA, a seller is required "to return the buyer's purchase price in toto when he has delivered nonconforming goods under circumstances that afford a buyer a right to reject or to revoke acceptance." Barco Auto Leasing Corp. v. House, 202 Conn. 106, 115, 520 A.2d 162 (1987).
In this case, the defendants' violations of TILA constitute violations of RISFA, pursuant to General Statutes § 36a-771(b).
As to count six, for violation of RISFA, this count is an alternative to count five. The plaintiff is entitled to a return of the $1,150 paid under the contract plus a court order that the contract is rescinded and that she is not liable to Atlantic under the retail installment sales contract.
7 Connecticut Unfair Trade Practice Act as to Ofstein
In count seven, the plaintiff alleges a violation of CUTPA as to Ofstein only. The plaintiff claims that Ofstein has engaged in unfair acts and practices in trade or commerce in violation of CUTPA, General Statutes § 42-110a et seq., including, but not limited to, the following; failing to abide by the implied warranties provided to the plaintiff; misrepresenting to plaintiff the terms and coverage of the express written warranty and the service contract, a per se unfair and deceptive act, pursuant to 16 C.F.R. § 455 ("FTC Used Motor Vehicle Trade Regulation Rule"); committing fraud; failing to recognize plaintiff's valid revocation of acceptance; violating TILA and RISFA, per se violations of CUTPA pursuant to Regs. Conn. State Agencies § 42-110b-28(b)(23). The plaintiff has suffered an ascertainable loss on account of Ofstein's violations of CUTPA, including, but not limited to, having lost her down payment. Ofstein's violations of CUTPA were willful and have caused great harm to the rights of consumers, especially the plaintiff. The plaintiff is entitled to recover her actual damages plus, in the court's discretion, costs, attorneys fees and punitive damages, pursuant to General Statutes § 42-110g."[General Statutes § ] 42-110b(a) provides that [n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce. It is well settled that in determining whether a practice violates CUTPA we have adopted the criteria set out in the cigarette rule by the federal trade commission for determining when a practice is unfair: (1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise — 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, [competitors or other business persons] . . . All three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three . . . Thus a violation of CUTPA may be established by showing either an actual deceptive practice . . . or a practice amounting to a violation of public policy." (Citation omitted; internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 18-19, 938 A.2d 576 (2008). General Statutes § 42-110g(a) provides in relevant part: "The court may, in its discretion, award punitive damages and may provide such equitable relief as it deems necessary or proper."
In Earls v. Condor Capital Corp., supra, Superior Court, Docket No. CV 98 0491748, the court found that the dealership violated CUTPA by engaging in unfair and deceptive practices. The court held that "the Connecticut state department of consumer protection promulgated regulations in connection with the sale of motor vehicles by used car dealers. Misrepresentations concerning the nature, characteristics, and quality of vehicles offered for sale are a violation of § 42-110b-28(b)(17) of the Regulations of Connecticut State Agencies, and such violations are deemed to be unfair and deceptive acts and practices in violation of CUTPA." Id. There, the court determined that the dealership misrepresented the vehicle's history, safety, and reliability, which were unfair acts and practices pursuant to § 42-110g. Id.
The court in Earls, id.; also determined that punitive damages were justified. The court, citing Tessmann v. Tiger Lee Construction Co., 228 Conn. 42, 53-54, 634 A.2d 870 (1993), found that "[t]he Connecticut Supreme Court has allowed for the award of punitive damages under similar circumstances." Earls v. Condor Capital Corp., supra, Superior Court, Docket No. CV 98 0491748. The court in Earls awarded the plaintiff punitive damages in the amount of $11,164 and attorneys fees in the amount of $8,326.24. Id.
In Tessmann v. Tiger Lee Construction Co., supra, 228 Conn. 42, the court considered a new home construction case where the builder repeatedly refused to repair obvious defects with the home. The Supreme Court in Tessmann agreed with the trial court that "the defendants attempted to stonewall the plaintiffs . . . They made no real substantive type repairs, ignored the plaintiffs' requests, [and] took advantage of the plaintiffs." Id., 55. The Supreme Court went on to state that "the defendants' actions clearly rise above simple negligence and support a finding of reckless or intentional conduct by the defendants to the plaintiffs' detriment." Id.
In addition, § 42-110b-28(b)(23) of the Regulations of Connecticut State Agencies provides: "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." "The Connecticut Supreme Court has held . . . that violations of the Federal Truth in Lending Act and of General Statutes § 36-224l (limiting charges on secondary mortgage loans) are unfair trade practices in violation of CUTPA . . . A plaintiff who can establish a violation of either of these statutes does not need to allege or prove a violation of CUTPA in order to obtain substantive relief. If the plaintiff's lawyer is worth her salt, however, the complaint will additionally allege a CUTPA violation, because General Statutes § 42-110g(d) allows the court to award reasonable attorneys fees to the successful plaintiff." (Citation omitted.) Pechiney Corp. v. Crystal, 43 Conn.Sup. 91, 99-100, 643 A.2d 319 (1994) [ 10 Conn. L. Rptr. 606], overruled in part on other grounds by Jade Aircraft Sales v. Crystal, 236 Conn. 701, 674 A.2d 834 (1996).
As a threshold issue, there must be some ascertainable loss of money or property. The plaintiff only had use of the vehicle for a few days. Had Ofstein properly made the repairs in accordance with the warranty, the plaintiff would have been able to use the minivan. Instead, the delay left her without a vehicle to use for personal, family and household purposes. The plaintiff has sufficiently proved that she has suffered an ascertainable loss.
The evidence also establishes that Ofstein engaged in unfair and deceptive acts, in violation of CUTPA. Ofstein, through its agents, misrepresented to the plaintiff the mechanical condition of the vehicle. He told her that it was a safe and reliable vehicle when he knew or should have known of its major defects. Ofstein also did not make sufficient efforts to repair the vehicle.
Like the builder in Tessman, Ofstein in this case made no real attempt to repair the vehicle, citing the grace period of the service contract. The plaintiff was asked to pay for half of the costs of the repairs. Ofstein's actions were not merely negligent, but rather he intentionally refused to repair the vehicle pursuant to his obligations. The plaintiff seeks actual and punitive damages, costs, and reasonable attorneys fees, for Ofstein's violations of CUTPA, General Statutes § 42-110g. There is sufficient evidence that Ofstein engaged in unfair and deceptive acts in commerce or trade in connection with this transaction.
As to count seven, for violation of CUTPA by Ofstein, the plaintiff is entitled to actual damages of $1,150, punitive damages in the amount of $2,500 plus a reasonable attorneys fee.
8 Connecticut Unfair Trade Practice Act as to Atlantic
In count eight, the plaintiff alleges a violation of CUTPA as to Atlantic only. The plaintiff claims that Atlantic has engaged in unfair acts and practices in trade or commerce in violation of CUTPA, General Statutes § 42-110a et seq., including, but not limited to, the following: failing to recognize plaintiff's valid revocation of acceptance and, violating TILA and RISFA, per se violations of CUTPA pursuant to Regs. Conn. State Agencies § 42-110b-28(b)(23). The plaintiff has suffered an ascertainable loss on account of Atlantic's violations of CUTPA, including, but not limited to, having lost her down payment. Atlantic's violations of CUTPA were willful and have caused great harm to the rights of consumers, especially the plaintiff. The plaintiff seeks actual and punitive damages, costs, and reasonable attorneys fees for Atlantic's violations of CUTPA, General Statutes § 42-110g.
As stated above, § 42-110b-28(b)(23) of the Regulations of Connecticut State Agencies provides: "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."
Because the court in this case found that Atlantic violated TILA and RISFA, the court finds there is sufficient evidence that Atlantic engaged in unfair and deceptive acts in commerce or trade in connection with this transaction in violation of CUTPA.
See parts III A 5 and III A 6 of this memorandum of decision respectively.
As to count eight, for violation of CUTPA by Atlantic, the plaintiff is entitled to actual damages of $1,150 plus a reasonable attorneys fee.
9 Liability as Holder of Contract
In count nine, the plaintiff alleges liability as holder of contract as to Atlantic only. The plaintiff claims that, under the terms of the retail installment sales contract, Atlantic is liable to the plaintiff, limited to the amounts paid under the contract. Ofstein and Atlantic were notified of plaintiff's claims on or about November 23, 2004. Accordingly, Atlantic is liable to the plaintiff for all claims that can be asserted against Ofstein limited to the amount of outstanding indebtedness under the retail installment contract, pursuant to General Statutes § 52-572g.
Under General Statutes § 52-572g(a): "Any holder in due course of a promissory note, contract or other instrument, other than an instrument issued in connection with a credit card transaction, evidencing an indebtedness, signed or executed by a buyer in connection with a credit transaction covering consumer goods, as defined in section 42a-9-102 or for consumer services rendered, shall be subject to all of the claims and defenses which the buyer has against the seller arising out of the transaction or against the person or persons providing the services, limited to the amount of indebtedness then outstanding in connection with the credit transaction, provided the buyer shall have made a prior written demand on the seller with respect to the transaction."
In this case, the court finds that Atlantic is a holder in due course of a retail installment sales contract signed by the plaintiff in connection with the purchase of the vehicle from Ofstein and that the plaintiff made a prior written demand on Ofstein and Atlantic. Therefore, the plaintiff is entitled to a court order that the contract is rescinded and that she is not liable to Atlantic under the retail installment sales contract.
IV CONCLUSION AND ORDER
For the above stated reasons, the court enters judgment for the plaintiff as follows:
As to count one, for breach of implied warranty of merchantability, the plaintiff is entitled to $1,150 as actual damages.
As to count two, for violation of the Magnuson-Moss Warranty Act, the plaintiff is entitled to $1,150 as actual damages plus a reasonable attorneys fee.
As to count three, for fraud, the plaintiff is entitled to $1,150 as actual damages plus common-law punitive damages in the amount of $2,500.
As to count four, for revocation of acceptance, the plaintiff is entitled to $1,150 as actual damages plus a court order that she is not liable to Atlantic under the retail installment sales contract.
As to count five, for violation of the Truth in Lending Act, the plaintiff is entitled to statutory damages in the amount of $1,000 plus a reasonable attorneys fee.
As to count six, for violation of the Retail Installment Sales Financing Act, this count is an alternative to count five. The plaintiff is entitled to a return of the $1,150 paid under the contract plus a court order that the contract is rescinded and that she is not liable to Atlantic under the retail installment sales contract.
As to count seven, for violation of CUTPA by Ofstein, the plaintiff is entitled to actual damages of $1,150, punitive damages in the amount of $2,500 plus a reasonable attorneys fee.
As to count eight, for violation of CUTPA by Atlantic, the plaintiff is entitled to actual damages of $1,150 plus a reasonable attorneys fee.
As to count nine, the plaintiff is entitled to a court order that the contract is rescinded and that she is not liable to Atlantic under the retail installment sales contract.
"Connecticut courts consistently have upheld and endorsed the principle that a litigant may recover just damages for the same loss only once." (Internal quotation marks omitted.) Carlson v. Waterbury Hospital, 280 Conn. 125, 150 n. 30, 905 A.2d 654 (2006). "Although a plaintiff is entitled to allege respective theories of liability in separate claims, he or she is not entitled to recover twice for harm growing out of the same transaction, occurrence or event." Rowe v. Goulet, 89 Conn.App. 836, 849, 875 A.2d 564 (2005). Therefore, the plaintiff in this case is entitled to a total recovery in the amount of $7,150, i.e. $1,150 in actual damages, $1,000 in statutory damages under Truth in Lending Act, and $5,000 in punitive damages, plus a reasonable attorneys fee.
The court enters the following orders regarding the award of attorneys fees and costs. The plaintiff must submit an affidavit of attorneys fees and costs with documentation within ten days of the date of this decision. The defendants have ten days from the date of the filing of the affidavit to submit any objection, which must specify the fees and costs being contested. After the pleadings are filed, the parties shall schedule with Civil Caseflow a short calendar hearing, which ought to take no more than an hour, for the purpose of determining attorneys fees and costs. The hearing shall take place within thirty-five days of the date of this decision.