Opinion
No. 542561
January 15, 1998
MEMORANDUM OF DECISION RE DEFENDANTS' MOTION TO STRIKE
On June 14, 1997, the plaintiff, Charter Oak Federal Credit Union, commenced this breach of contract action against the defendants Lynn Christie-Vanwormer and Timothy Vanwormer. On July 11, 1997 the pro se defendants filed an answer. On August 4, 1997, the plaintiff filed a motion to strike the defendants, answer for failure to comply with the Practice Book, which was granted on August 26, 1997. After retaining counsel, the defendants filed a motion to strike the plaintiff's complaint on September 3, 1997. The defendants also filed a memorandum of law in support of their motion. On September 11, 1997, the plaintiff filed a memorandum in opposition to the defendants' motion to strike. On September 19, 1997, the defendants' filed a reply to the plaintiff's memorandum in opposition.
The action arises out of the defendants' alleged default under the terms of an automobile loan contract. The plaintiff repossessed and sold an automobile that they held as a security interest under a contract with the defendants, and now seek a deficiency balance.
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 680, 693 A.2d 293 (1997). The role of the trial court in ruling on a motion to strike is "to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [plaintiff has] stated a legally sufficient cause of action." Dodd v. Middlesex Mutual Assurance Company, 242 Conn. 375, 378, 698 A.2d 859 (1997). "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." Faulkner v. United Technologies Corporation, supra, 240 Conn. 348.
The plaintiff argues that the defendants' motion to strike should be denied since it was filed after an answer was filed, out of the order of pleadings prescribed by Practice Book § 112. The defendants argue that the court should exercise its discretion to allow the defendants to file their motion to strike since the answer was filed by the pro se defendants who have since retained counsel, and since the answer was stricken by this court on August 26, 1997.
Practice Book § 112 provides, in relevant part: "The order of pleadings shall be as follows:
(1) The plaintiff's complaint. . . .
(4) The defendant's motion to strike the complaint. . . .
(5) The defendant's answer (including any special defenses) to the complaint. . . ."
Practice Book § 113 provides, "[i]n all cases, when the court does not otherwise order, the filing of any pleading provided for by the preceding section will waive the right to file any pleading which might have been filed in due order and which precedes it in the order of pleading provided in that section." "A challenge to the legal sufficiency of a complaint, through a motion to strike, must be pleaded and ruled on before the defendant files an answer to the plaintiff's complaint." Burke v. Avitabile, 32 Conn. App. 765, 769, 630 A.2d 624, cert denied, 228 Conn. 908, 634 A.2d 297 (1993). "The very words of 113, `when the court does not otherwise order' indicate, however, that the court has discretion to allow the filing of pleadings out of order." Sabino v. Ruffolo, 19 Conn. App. 402, 404, 562 A.2d 1134 (1989). "Section 6 of the Practice Book supports this view by allowing for the liberal interpretation of the rules where `strict adherence to them will work surprise or injustice' because the very design of the rules is `to facilitate business and advance justice.'" Id.
This court, exercising its discretion, permits the defendants to file their motion to strike, and addresses the motion on its merits.
The defendants argue that the plaintiff's complaint is legally insufficient under the Retail Instalment Sales Finance Act (RISFA), General Statutes §§ 36a-770 et seq., since the complaint does not allege that the plaintiff gave the defendants notice of the repossession of the automobile in accordance with §§ 36a-785 (b) and (c), respectively. Also, the defendants' argue, the complaint does not plead that the plaintiff complied with the notice provisions regarding the manner of the proposed sale, and proceeds of the sale in accordance with §§ 36a-785 (d) and (e), respectively. The plaintiff, relying on one trial court case, argues that the complaint need not plead notice to survive a motion to strike. The plaintiff argues that although a determination of proper notice is necessary for a favorable judgment, the plaintiff need not plead notice in its' complaint. Jacobs v. Healey Ford-Subaru, Inc., Superior Court, judicial district of Ansonia/Milford, Docket No. 031301, 3 CONN. L. RPTR. 193 (February 1, 1991) (Fuller, J.).
General Statutes § 36a-785 (b) and (c) provide, in relevant part:
(b) Notice of intention to repossess. Not less than ten days prior to the retaking, the holder of such contract, if he so desires, may serve upon the retail buyer . . . a notice of intention to retake the goods on account of the buyer's default. The notice shall state the default and the period at the end of which such goods will be retaken, and shall briefly and clearly state what the retail buyer's rights under this subsection will be in case such goods are retaken.
(c) Redemption. If the holder of such contract does not give the notice of intention to retake, described in subsection (b), he shall retain such goods for fifteen days after the retaking . . . During such period the retail buyer, upon payment or tender of the unaccelerated amount due under such contract at the time of retaking and interest . . . and upon payment of the actual and reasonable expenses of any retaking and storing may redeem such goods and become entitled to take possession of the same and continue in the performance of such contract as if no default had occurred. The holder of such contract shall within three days of the retaking furnish or mail, by registered or certified mail, to the last known address of the buyer a written statement of the unaccelerated sum due under such contract and the actual and reasonable expense of any retaking and storing. . . .
In relevant part, General Statutes §§ 36a-785 (d) and (e) provide:
(d) Compulsory resale. . . . The holder of the contract shall give the retail buyer not less than ten days' written notice of the time and place of any public sale, or the time after which any private sale or other intended disposition is to be made, either personally or by registered mail or by certified mail receipted for on mailing directed to the retail buyer at his last-known place of business or residence. . . .
(e) Proceeds of resale. . . . Within thirty days of the resale, the holder of the contract shall give the retail buyer a written statement itemizing the disposition of the proceeds.
In support of their argument, the defendants cite Colt Employees Federal Credit Union v. Lagassie, 30 Conn. Sup. 604, 606, 316 A.2d 512 (App. Sess. 1973), in which the Appellate Session of the Superior Court affirmed the trial court's holding, in an action to recover a deficiency judgment after the repossession and resale of an automobile, granting a motion to strike where the complaint failed to plead that proper notice was given under the RISFA.
"[T]he decisions of the Appellate Session, at least those that were published, were binding on our trial court, including the trial session of the Superior Court. Certainly most judges and lawyers considered them to be binding, in the absence of a conflicting decision of [the Supreme] or the Appellate Court. Indeed, their binding force was the principal reason for their having been published." State v. Indrisano, 228 Conn. 795, 805 n. 6, 640 A.2d 986 (1994) (stating that, in interpreting a statute, the Court took into consideration prior interpretations of the Appellate Court and the Appellate Session of the Superior Court). In Mack Financial Corporation v. Crossley, 209 Conn. 163, 167, 550 A.2d 303 (1988), the Supreme Court relied on Colt Employees Federal Credit Union v. Lagassie, supra, although for the proposition that a lender cannot recover a deficiency judgment where notice of resale is not given.
Following Colt Employees Federal Credit Union v. Lagassie, supra, this court finds that since the plaintiff did not plead that proper notice was given in accordance with the RISFA, the complaint does not state a legally sufficient cause of action.
Accordingly, the defendants' motion to strike the plaintiff's complaint is granted.
MARTIN, J.