Connex Credit Union v. Thibodeau

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
CONNEX CREDIT UNION v. MICHELLE
M. THIBODEAU
(AC 43830)
Alvord, Cradle and DiPentima, Js.
Syllabus
The plaintiff, a secured party, sought to recover monetary damages from
the defendant debtor, for breach of a retail installment sales contract,
secured by an interest in the defendant’s vehicle. After the defendant
defaulted, the plaintiff took possession of the vehicle and sent the defen-
dant a presale notice regarding her right to redeem and the notice of
sale. The defendant took no steps to redeem the vehicle, and the plaintiff
sold it in an arm’s-length transaction. Following the sale, the plaintiff sent
the defendant a postsale notice advising her of the sale and informing
her that the sale price was less than the amount that she owed and that
the plaintiff may seek a deficiency judgment. The defendant did not pay
the amount allegedly due. Following a bench trial, the trial court ren-
dered judgment for the plaintiff and awarded certain damages, and the
defendant appealed to this court. Held:
1. The trial court did not err in determining that the plaintiff properly
provided notice of the right to an accounting as required by article 9
of the Uniform Commercial Code (UCC), as the provision of an actual
accounting in lieu of a statement of a right to an accounting was enough
to satisfy the requirements set out by the applicable statute (§ 42a-9-
613 (1) (D)): although the statute only requires a statement that the
debtor is entitled to an accounting, additional information is permitted
and exact language is not required, and providing an actual accounting
in the notice is the type of additional information that the statute allows;
moreover, providing the actual accounting, especially when provided
free of charge, served as a consumer focused means of meeting the
statutory purpose of notification to the debtor; accordingly, the plaintiff’s
presale notice, which provided detailed information, including details
of the defendant’s debt and the amount she owed to the plaintiff, and
actively invited questions, adhered to the requirements of the UCC and
thus satisfied the accounting provision of the statute.
2. This court declined to reach the merits of the defendant’s claim that the
trial court erred in determining that the plaintiff properly provided a
telephone number from which the defendant could learn the full amount
she would need to pay in order to redeem her vehicle as required by
article 9 of the UCC, the claim not having been properly preserved for
appellate review; the defendant did not raise this issue until her posttrial
brief, and this court’s careful review of the record revealed the issue
was not raised at trial and was not addressed in the court’s memorandum
of decision, of which no further articulation was sought, and, because
the court did not consider the issue, the factual record was wholly
inadequate for review.
3. The trial court did not err in determining that the plaintiff satisfied the
requirements of the Retail Installment Sales Financing Act (RISFA)
(§ 36a-770 et seq.) regarding the repossession and sale of a motor vehicle.
a. The defendant’s claim that the postsale notice failed to provide a
proper itemization as required by statute (§ 36a-785 (e)) was not properly
preserved for appellate review, the defendant having failed to raise this
issue until her posttrial brief, and the record was unclear how, if at all,
the issue was raised at trial since the issue was not addressed in the
court’s memorandum of decision.
b. The plaintiff did not violate § 36a-785 (g) when it credited the defendant
with the actual sale price of the vehicle, an amount lower than the
statutory fair market value as determined by the formula in § 36a-785
(g); the purpose of § 36a-785 (g) is not to calculate an amount that a
creditor must credit to a debtor’s account but, rather, to provide the
debtor with the tools to defend herself in a deficiency proceeding brought
by a secured party, and, where a secured party seeks a deficiency judg-
ment following a calculation pursuant to subsection (g) of the statute,
the secured party may rebut the presumed value of the vehicle with direct
in-court testimony, which the plaintiff did here, presenting testimony
regarding how the sale price represented the actual fair market value
of the vehicle due to damage sustained in an accident that prompted
the defendant’s surrender of the vehicle, and, additionally, the defendant
did not offer any evidence as to the vehicle’s value.
Argued September 16—officially released November 30, 2021
Procedural History
Action to recover damages for breach of contract,
and for other relief, brought to the Superior Court in
the judicial district of New Britain, where the defendant
filed a counterclaim; thereafter, the matter was tried to
the court, Aurigemma, J.; subsequently, the defendant
withdrew the counterclaim; judgment for the plaintiff,
from which the defendant appealed to this court.
Affirmed.
Garrett A. Denniston, with whom, on the brief, was
Marisa A. Bellair, for the appellant (defendant).
Robert C. Lubus, Jr., with whom were Andrew S.
Marcucci, and, on the brief, Stephanie Ann Palmer, for
the appellee (plaintiff).
Opinion
ALVORD, J. This appeal concerns the application of
the statutory schemes that govern a secured party’s
repossession and subsequent sale of a motor vehicle
in a consumer goods secured transaction. Connecticut
has adopted article 9 of the Uniform Commercial Code
(UCC), codified at General Statutes § 42a-9-101 et seq.,
which governs secured transactions. Specifically at
issue here is the section that governs a secured party’s
notification to a debtor regarding the repossession and
impending sale of collateral. Connecticut also has
enacted the Retail Installment Sales Financing Act
(RISFA), General Statutes § 36a-770 et seq., an act that
governs installment sales contracts—a specific type of
secured transaction. Specifically at issue here is the
section that pertains to a secured party’s notification
to a debtor regarding the proceeds of the sale of a
repossessed and sold motor vehicle. The underlying
lawsuit arose from the defendant debtor’s default on
her car payments and the plaintiff secured party’s subse-
quent repossession and sale of that vehicle. In essence,
we are tasked with answering two questions: (1) what
must a secured party tell a debtor prior to the sale of
repossessed collateral and (2) what must a secured
party do after the sale of a repossessed vehicle.
The defendant debtor, Michelle M. Thibodeau, appeals
from the judgment of the trial court rendered in favor
of the plaintiff secured party, Connex Credit Union, in
this breach of contract action. On appeal, the defendant
claims that the trial court erred in determining that the
plaintiff (1) provided notice of the right to an accounting
as required by article 9 of the UCC, (2) provided a
telephone number from which the defendant could
learn the full amount she would need to pay in order
to redeem her vehicle as required by article 9 of the
UCC,1 and (3) satisfied the requirements of RISFA
regarding the repossession and sale of a motor vehicle.
On the basis of these claims, the defendant argues that
the plaintiff was precluded from recovering any defi-
ciency upon resale due to its alleged failure to adhere
to the statutory requirements.2 We affirm the judgment
of the trial court.
The following facts, as found by the trial court in its
memorandum of decision, and procedural history are
relevant to our discussion of the claims on appeal. ‘‘On
April 7, 2014, the defendant . . . borrowed $19,993.12
[from the plaintiff] to be repaid with interest at 4.99
percent per annum over seventy-two months. The retail
installment sales contract . . . signed by the defendant
was secured by a security interest in the defendant’s
2013 Kia Rio [vehicle] . . . . In the [c]ontract the
defendant agreed to be responsible for repossession
and sales costs as well as attorney’s fees.’’
After her October 23, 2017 payment, the defendant
made no further payments on the loan, and the trial
court determined that, as a result, she had defaulted.
The defendant ‘‘contacted the plaintiff on or about Janu-
ary 16, 2018, and advised it that her vehicle had been
in an accident and she wished the plaintiff to come and
take possession of the vehicle.’’
On January 17, 2018, the plaintiff sent a document
titled ‘‘Right to Redeem and Notice of Sale’’ (presale
notice) to the defendant via certified mail. This docu-
ment noted the repossession date, advised the defen-
dant of her right to redeem her vehicle, explained how
to redeem the vehicle, and listed the details of the defen-
dant’s outstanding debt.3 The defendant took no steps
to redeem the vehicle.
On February 28, 2018, the plaintiff sold the vehicle
in an arm’s-length transaction for $4000. On March 20,
2018, the plaintiff sent the defendant a letter (postsale
notice) advising her of the sale and informing her that
the sale price was less than the amount that she owed.
The postsale notice also informed the defendant that
the plaintiff might seek a deficiency judgment against
her. A named employee, identified as a collections spe-
cialist, signed the postsale notice which included the
plaintiff’s mailing address, website address, and phone
number, and closed with the words ‘‘[i]f you have any
questions, please call.’’ The defendant did not contact
the plaintiff with any questions.
In addition to the defendant’s outstanding debt, the
plaintiff incurred $760 in repossession and sales costs.
Along with the sale proceeds, the plaintiff recovered a
total of $1955.99 from the insurance it had on the vehi-
cle. The plaintiff also applied $9 from a savings account
that the defendant had with the plaintiff to the defen-
dant’s outstanding debt.
On August 30, 2018, the plaintiff commenced this
action against the defendant for breach of contract. The
plaintiff sought principal damages of $4495.07, prejudg-
ment interest in the amount of $263.22, and attorney’s
fees in the amount of $674. In response, the defendant
asserted several special defenses, including assertions
that the plaintiff had failed to inform her in its presale
notice that she was entitled to an accounting and had
not credited her with the correct value upon selling the
vehicle.4
The case was tried to the court, Aurigemma, J., on
September 11, 2019. At trial, the plaintiff called J. R.
Roy, the plaintiff’s collection manager. Roy testified as
to the vehicle’s condition and value. The defendant did
not present evidence on the value of the vehicle and
presented no witnesses and no exhibits. The parties
submitted simultaneous posttrial briefs.
On January 2, 2020, the court issued its memorandum
of decision, in which it found that ‘‘the plaintiff [had]
proved all the necessary elements of its cause of action.’’
In addition, the court rejected each of the defendant’s
special defenses. The court rendered judgment for the
plaintiff and awarded damages in the amount of
$5432.29. This appeal followed. Additional facts will be
set forward as necessary.
I
The defendant first claims that the court erred
because ‘‘(1) it ignored the plain language of [General
Statutes §§ 42a-9-614 (1) (A) and 42a-9-613 (1) (D)] by
excusing [the plaintiff’s] omission of language stating
[that the defendant] had the right to request a written
explanation of indebtedness and the cost for doing so
(if any); and (2) what the court called an ‘accounting’
in the presale notice falls well short of what the [Con-
necticut] UCC requires.’’ We disagree.
We first set forth the appropriate standard of review.
Here, the financial amounts listed in the notices are not
in dispute; in resolving the defendant’s various claims,
we are only tasked with determining what the relevant
statutes require of secured parties. Thus, our consider-
ation of this appeal requires only a review of the trial
court’s application of the law to the undisputed facts.
‘‘The process of statutory interpretation involves the
determination of the meaning of the statutory language
as applied to the facts of the case, including the question
of whether the language does so apply. . . . When con-
struing a statute, [o]ur fundamental objective is to
ascertain and give effect to the apparent intent of the
legislature. . . . In other words, we seek to determine,
in a reasoned manner, the meaning of the statutory
language as applied to the facts of [the] case, including
the question of whether the language actually does
apply. . . . In seeking to determine that meaning, Gen-
eral Statutes § 1-2z directs us first to consider the text
of the statute itself and its relationship to other statutes.
If, after examining such text and considering such rela-
tionship, the meaning of such text is plain and unambig-
uous and does not yield absurd or unworkable results,
extratextual evidence of the meaning of the statute shall
not be considered. . . . Furthermore, [t]he legislature
is always presumed to have created a harmonious and
consistent body of law . . . [so that] [i]n determining
the meaning of a statute . . . we look not only at the
provision at issue, but also to the broader statutory
scheme to ensure the coherency of our construction.
. . . Because issues of statutory construction raise
questions of law, they are subject to plenary review on
appeal.’’ (Internal quotation marks omitted.) Robinson
v. Tindill, 208 Conn. App. 255, 264, A.3d (2021).
The first issue we address is the question of what
information a secured party must include in a notice
to a debtor prior to disposing of repossessed consumer
goods collateral. In consumer goods secured transac-
tions,5 a notification of disposition of collateral requires
a statement ‘‘that the debtor is entitled to an accounting
of the unpaid indebtedness and [a statement of] the
charge, if any, for an accounting . . . .’’ General Stat-
utes § 42a-9-613 (1) (D); see also General Statutes § 42a-
9-614 (1) (A). The parties agree that the notice in ques-
tion did not include language expressly stating that the
defendant was ‘‘entitled to an accounting . . . .’’ Gen-
eral Statutes § 42a-9-613 (1) (D). They disagree, how-
ever, as to whether the plaintiff’s notification conforms
to the statute’s requirement despite the lack of the spe-
cific statement.
The defendant argues that a secured party cannot
merely adhere to the ‘‘spirit’’ of §§ 42a-9-613 (1) (D)
and 42a-9-614 (1) (A), but rather it must strictly comply
with the requirements set out in the statute. The plaintiff
responds that its notice ‘‘exceeded the minimum neces-
sary contents to satisfy the statute by providing the
actual accounting free of charge, rather than the right
to request an accounting and the cost for the fulfillment
of that request, if any.’’ On the particular facts of this
case, we conclude that the plaintiff did not violate the
requirements of the statute.
We begin by setting forth the relevant provisions of
§ 42a-9-614, which governs the contents and form of
notification required before disposing of collateral in
consumer goods transactions, and § 42a-9-613,6 which,
although it governs the contents and form of notifica-
tion required before disposition of collateral in noncon-
sumer goods transactions, is incorporated in part into
§ 42a-9-614. Section 42a-9-614 provides that, ‘‘[i]n a
consumer-goods transaction, the following rules apply
. . . .’’7 Subsection (1) governs the information that
must be provided in a notification of disposition. Specif-
ically, a notification of disposition must provide four
categories of information, only one of which is relevant
to this discussion.8 See General Statutes § 42a-9-614 (1).
The relevant and first required category of information
is ‘‘[t]he information specified in subdivision (1) of sec-
tion 42a-9-613 . . . .’’ General Statutes § 42a-9-614 (1)
(a). Section 42a-9-613 (1) (D) is the provision at issue
and requires that a notification of disposition contain
a statement that ‘‘the debtor is entitled to an accounting
of the unpaid indebtedness’’ along with ‘‘the charge, if
any, for an accounting . . . .’’ The other three catego-
ries of required information in disposing of consumer
goods collateral, listed in § 42a-9-614 (1), are not rele-
vant to this discussion.
Section 42a-9-614 (2) further provides that ‘‘[a] partic-
ular phrasing of the notification is not required.’’ Lastly,
although § 42a-9-614 (3) provides an example of a suffi-
cient notification,9 § 42a-9-614 (4) provides that ‘‘even
if additional information appears at the end of the
form,’’ the notice remains sufficient.
We begin our analysis by noting that the question of
whether providing an actual accounting in lieu of a
statement of a right to an accounting satisfies the
requirements set out in § 42a-9-613 (1) (D) is a matter
of first impression in Connecticut. Although the statute
only requires a statement ‘‘that the debtor is entitled
to an accounting’’; General Statutes § 42a-9-613 (1) (D);
including additional information is permitted; see Gen-
eral Statutes § 42a-9-614 (4); and exact language is not
required. General Statutes § 42a-9-614 (2). Providing an
actual accounting in the notice instead of a statement
that such an accounting may be obtained on request is
the type of additional information that the statute
allows. Indeed, providing the actual accounting, espe-
cially when provided free of charge as was done here,
instead of a notice of a right to an accounting serves
as a consumer focused means of meeting the statutory
purpose of notification to the debtor.
An accounting is defined, inter alia, as ‘‘the aggregate
unpaid secured obligations’’ and identifies ‘‘the compo-
nents of the obligations in reasonable detail.’’ General
Statutes § 42a-9-102 (4) (B) and (C). In the present case,
the presale notice stated the principal ($9700.06), the
interest ($114.05 with a $1.33 per diem accrual), late
fees ($30), and cost of towing ($200), for a total out-
standing balance of $10,044.11. The notice also closed
with ‘‘[i]f you have any questions, please contact me,’’
and provided a phone number and address. In addition,
the notice provided a three page long description of
the defendant’s redemption rights and outstanding debt.
The plaintiff provided an actual accounting in compli-
ance with the statute, comprised of ‘‘the principal, inter-
est, per diem, late fees, [and] repossession costs . . . .’’
See General Statutes § 42a-9-102 (4).
On these facts, we conclude that the plaintiff’s presale
notice, which provided detailed information, including
details of the defendant’s debt and the amount she owed
to the plaintiff, and actively invited questions, adhered
to the requirements of §§ 42a-9-614 (1) (A) and 42a-9-
613 (1) (D) and thus satisfied the accounting provision
of the statute.
II
The defendant’s second claim is that the court erred
in finding that the plaintiff provided a telephone number
that she could call to determine the total amount that
she would need to pay to redeem the vehicle as required
by § 42a-9-614 (1) (C).10 Because this claim is not prop-
erly preserved for appellate review, we decline to reach
the merits of this argument.
The following facts are relevant to our resolution
of this claim. The defendant asserted several special
defenses relating to the sufficiency of the plaintiff’s
presale notice and postsale notice in her amended
answer. Although the defendant raised other defenses
based upon §§ 42a-9-613 and 42a-9-614, she did not
assert the defense that the plaintiff failed to provide a
number that she could call in order to learn the total
amount she would need to pay to redeem her vehicle.11
See footnote 4 of this opinion. The defendant did not
raise this issue until her posttrial brief, which was filed
simultaneously with the plaintiff’s brief. Further, our
careful review of the record reveals that this issue was
not raised at trial and is not addressed in the trial court’s
memorandum of decision, of which no further articula-
tion was sought.
Because the trial court did not consider this issue,
the factual record is wholly inadequate for our review.
The court did not make findings of fact relevant to this
specific issue. Therefore, in asking us to review this
claim, the defendant is essentially asking us to make
factual findings—a request with which we cannot com-
ply. See Byrne v. Spurling, 105 Conn. App. 99, 103,
937 A.2d 70 (2007). ‘‘[A]n examination of the plaintiff’s
belated arguments demonstrates the need for factual
findings that the record does not contain.’’ Id. For these
reasons, we cannot address the merits of this claim.
‘‘The court shall not be bound to consider a claim
unless it was distinctly raised at the trial or arose subse-
quent to the trial. . . .’’ Practice Book § 60-5. ‘‘[T]he
reason for the rule is obvious: to permit a party to raise
a claim on appeal that has not been raised at trial—
after it is too late for the trial court or the opposing
party to address the claim—would encourage trial by
ambuscade, which is unfair to both the trial court and
the opposing party. . . . [T]o permit the appellant first
to raise posttrial an issue that arose during the course
of the trial would circumvent the policy underlying the
requirement of timely preservation of issues.’’ (Empha-
sis in original; internal quotation marks omitted.) Car-
roll v. Yankwitt, 203 Conn. App. 449, 479 n.23, 250 A.3d
696 (2021). This court previously has declined to review
a claim raised for the first time in a posttrial brief
because doing so would ‘‘contravene the purpose of
the preservation requirement,’’ noting that it was ‘‘not
surprising that the trial court did not address the defen-
dant’s [claim] in any manner in its memorandum of
decision.’’ AS Peleus, LLC v. Success, Inc., 162 Conn.
App. 750, 759–60, 133 A.3d 503 (2016). Thus, because
the issue was only raised in the defendant’s posttrial
brief and because the record is inadequate for review,
we do not reach the merits of this claim.
III
Finally, the defendant claims that the trial court erred
by ‘‘implicitly’’ finding that the plaintiff complied with
RISFA, specifically, General Statutes § 36a-785 (e), and
provided the defendant with a ‘‘ ‘written statement item-
izing the disposition of the proceeds’ ’’ from the vehi-
cle’s sale. In addressing this claim, we move away from
the adequacy of the presale notice and examine the
defendant’s actions after the vehicle was sold. The
defendant further argues that, even if the plaintiff had
satisfied § 36a-785 (e), the court erred in finding that
the plaintiff credited the defendant the proper amount
from the sale of the vehicle. As to the claim that the
plaintiff failed to provide an itemization in the postsale
notice, the defendant’s argument was not properly pre-
served, and, therefore, we do not reach the merits of
the claim. As to the argument that the plaintiff failed
to credit the defendant with the proper amount, we
disagree.
A
Similar to the defendant’s claim detailed in part II of
this opinion, the defendant’s claim that the postsale
notice failed to provide a proper itemization as required
by § 36a-785 (e)12 is not properly preserved for appel-
late review.
Although the defendant raised other defenses based
on § 36a-785 in her amended answer, she did not assert
the defense of failing to provide a statement itemizing
the proceeds of the disposition. See footnote 4 of this
opinion. The defendant did not raise the issue until her
posttrial brief—filed simultaneously with the plaintiff’s
posttrial brief. Again, the record is unclear how, if at
all, this issue was raised at trial since the issue is not
addressed in the trial court’s memorandum of deci-
sion.13 The defendant herself acknowledges that ‘‘nei-
ther [the plaintiff] nor the trial court addressed the
postsale RISFA argument . . . .’’ Perhaps neither
addressed this argument because each was mindful of
the precept that raising an issue only in a posttrial brief
‘‘circumvent[s] the policy underlying the requirement
of timely preservation of issues.’’ (Internal quotation
marks omitted.) Carroll v. Yankwitt, supra, 203 Conn.
App. 479 n.23.
Although each party briefed this issue on appeal, we
decline to review the claim as it was neither properly
raised nor considered at trial. Therefore, because per-
mitting this claim ‘‘ ‘would encourage trial by ambus-
cade’ ’’ and would ‘‘ ‘contravene the purpose of the pres-
ervation requirement,’ ’’; id.; we conclude that the
defendant has failed to properly preserve the claim for
appellate review. See AS Peleus, LLC v. Success, Inc.,
supra, 162 Conn. App. 759–60.
B
In addition to the claim that the plaintiff provided no
itemized statement of disposition, the defendant claims
that, even if there were such a statement, the plaintiff
necessarily violated the statute’s mandate by crediting
her with the incorrect value of the vehicle.14 Specifically,
the defendant claims that § 36a-785 (g) requires a
secured party to credit a debtor with the fair market
value as determined by the formula set forth in the
statute (statutory fair market value) at the time the
collateral is disposed of and that the trial court erred
in concluding that the postsale notice properly credited
her with $4000 in actual sales proceeds rather than the
statutory fair market value as required under § 36a-785
(g). We disagree.
For the same reasons set forth in part I of this opinion,
this claim is subject to plenary review. See Wells Fargo
Bank, N.A. v. Fratarcangeli, 192 Conn. App. 159, 165,
217 A.3d 649 (2019).
The following facts are relevant to our resolution of
this claim. At trial, the plaintiff called its collection
manager, Roy, as a witness. Roy testified that the statu-
tory fair market value of the vehicle was $6225. He
also testified, however, that, according to the vehicle
condition report, the vehicle’s driver side front door
and rear quarter panel as well as the passenger side
front quarter panel, rear door, and rear quarter panel
all were scratched and dinged. According to Roy, the
sale price of $4000—not the statutory fair market value
of $6225—represented the vehicle’s actual fair market
value. The defendant did not present any evidence
regarding the vehicle’s value. The trial court found that
the plaintiff rebutted the fair market value presumption
of § 36a-785 (g), and found that the sale price ($4000)
was the vehicle’s actual fair market value.
Section 36a-785 (g), titled ‘‘Fair market value,’’ pro-
vides in relevant part: ‘‘If the goods retaken consist of
a motor vehicle the aggregate cash price of which was
more than four thousand dollars, the prima facie fair
market value of such motor vehicle shall be calculated
by adding together the average trade-in value for such
motor vehicle and the highest-stated retail value for
such motor vehicle and dividing the sum of such values
by two. Such average trade-in value and highest-stated
retail value shall be determined by the values as stated
in the National Automobile Dealers Association Used
Car Guide [(NADA)] . . . as of the date of reposses-
sion. . . . The prima facie evidence of fair market
value of such motor vehicle . . . so determined may
be rebutted only by direct in-court testimony. If such
value of the motor vehicle . . . is less than the balance
due under the contract . . . the holder of the contract
may recover from the retail buyer . . . the amount by
which such liability exceeds such fair market value
. . . .’’ In essence, the statute creates a rebuttable pre-
sumption that the NADA value, the statutory fair market
value, is the actual fair market value.
On appeal, the defendant claims that the plaintiff was
required to credit her account with the statutory fair
market value rather than the actual sale proceeds and
was precluded from contesting the statutory fair market
value until the matter was before a court. It is the
defendant’s position that the plaintiff is barred from
recovering a deficiency judgment in this case because
of its failure to credit her with the statutory fair market
value when it sold the vehicle. The plaintiff essentially
relies on the fact that the trial court found that Roy’s
testimony rebutted the presumption of fair market value
in arguing that it complied with the statute.
We disagree with the defendant’s interpretation of
§ 36a-785 (g). The purpose of subsection (g) is not to
calculate an amount that a creditor/secured party must
credit to a debtor’s account, but rather to provide the
debtor with the tools to defend herself in a deficiency
proceeding brought by a secured party. See General
Statutes § 36a-785 (g). Where a secured party seeks a
deficiency judgment, following a calculation pursuant
to subsection (g), the secured party may rebut the pre-
sumed value of the vehicle with direct in-court testi-
mony. See General Statutes § 36a-785 (g). In the present
case, the plaintiff presented evidence of the statutory
fair market value ($6225) and then rebutted the pre-
sumed value with Roy’s testimony on the vehicle’s sale
price ($4000) and how that value represented the actual
fair market value of the vehicle due to damage sustained
in the accident that prompted the defendant’s surrender
of the vehicle. Finally, although the plaintiff presented
ample evidence to rebut the statutory fair market value,
the defendant did not offer any evidence as to the vehi-
cle’s value. We conclude that the plaintiff did not violate
§ 36a-785 (g).
The judgment is affirmed.
In this opinion the other judges concurred.
1
Despite the phrasing of this claim, we note that the trial court made no
such determination.
2
Because we find that the plaintiff did not violate these statutes, we need
not address the effects of such violations.
3
‘‘The document indicated that the repossession date was [January 16,
2018] and advised the defendant that she could ‘still redeem (get back) [her]
vehicle by curing [her] default.’ It further advised that the defendant needed
to pay $985.48 to the Credit Union for principal, interest and late fees and
$200 to the Repossession agent ‘on or before the REDEMPTION DATE,’
which the document listed as [February 5, 2018].’’
4
In toto, the defendant asserted six special defenses. Specifically, she
argued: (1) the plaintiff did not credit her with the fair market value of the
vehicle, in violation of General Statutes § 36a-785 (g); (2) the plaintiff did
not provide written notice explaining that she was responsible for retrieving
personal property from the vehicle, in violation of § 36a-785 (c) (2); (3) the
plaintiff failed to inform her that she was entitled to an accounting, in
violation of General Statutes §§ 42a-9-613 (1) (D) and 42a-9-614; (4) the
plaintiff failed to provide an accurate description of her liability for defi-
ciency, in violation of § 42a-9-614 (1) (B); (5) the plaintiff’s sale restricted
her right to redeem under General Statutes § 42a-9-623 by requiring payment
by cash or bank teller’s check; and (6) the plaintiff misrepresented her right
to redeem, in violation of § 42a-9-614 (5).
In addition, the defendant brought a counterclaim alleging violations of
various consumer protection statutes. At trial, however, the defendant with-
drew her counterclaim.
5
‘‘‘Consumer goods’ means goods that are used or bought for use primarily
for personal, family or household purposes.’’ General Statutes § 42a-9-102
(23).
6
General Statutes § 42a-9-613 provides in relevant part: ‘‘Except in a con-
sumer-goods transaction, the following rules apply: (1) The contents of a
notification of disposition are sufficient if the notification: (A) Describes
the debtor and the secured party; (B) Describes the collateral that is the
subject of the intended disposition; (C) States the method of intended dispo-
sition; (D) States that the debtor is entitled to an accounting of the unpaid
indebtedness and states the charge, if any, for an accounting; and (E) States
the time and place of a public disposition or the time after which any other
disposition is to be made. . . .’’
7
The requirements differ depending upon whether the transaction is a
consumer goods transaction or not. See General Statutes §§ 42a-9-613 and
42a-9-614.
8
General Statutes § 42a-9-614 (1) provides: ‘‘A notification of disposition
must provide the following information: (A) The information specified in
subdivision (1) of section 42a-9-613; (B) A description of any liability for a
deficiency of the person to which the notification is sent; (C) A telephone
number from which the amount that must be paid to the secured party to
redeem the collateral under section 42a-9-623 is available; and (D) A tele-
phone number or mailing address from which additional information con-
cerning the disposition and the obligation secured is available.’’
9
General Statutes § 42a-9-614 (3) provides: ‘‘The following form of notifica-
tion, when completed, provides sufficient information:
‘‘(Name and address of secured party.)
‘‘(Date)
NOTICE OF OUR PLAN TO SELL PROPERTY
‘‘ .... (Name and address of any obligor who is also a debtor.)
‘‘Subject: .... (Identification of transaction)
‘‘We have your .... (describe collateral), because you broke promises in
our agreement.
‘‘(For a public disposition:)
‘‘We will sell .... (describe collateral) at public sale. A sale could include
a lease or license. The sale will be held as follows:
‘‘Date: ....
‘‘Time: ....
‘‘Place: ....
‘‘You may attend the sale and bring bidders if you want.
‘‘(For a private disposition:)
‘‘We will sell .... (describe collateral) at private sale sometime after ....
(date). A sale could include a lease or license.
‘‘The money that we get from the sale (after paying our costs) will reduce
the amount you owe. If we get less money than you owe, you (will or will
not, as applicable) still owe us the difference. If we get more money than
you owe, you will get the extra money, unless we must pay it to someone else.
‘‘You can get the property back at any time before we sell it by paying us
the full amount you owe (not just the past due payments), including our
expenses. To learn the exact amount you must pay, call us at .... (tele-
phone number).
‘‘If you want us to explain to you in writing how we have figured the amount
that you owe us, you may call us at .... (telephone number) or write us at
.... (secured party’s address) and request a written explanation. (We will
charge you $.... for the explanation if we sent you another written explanation
of the amount you owe us within the last six months.)
‘‘If you need more information about the sale call us at .... (telephone
number) or write us at .... (secured party’s address).
‘‘We are sending this notice to the following other people who have an
interest in .... (describe collateral) or who owe money under your agreement:
‘‘.... (Names of all other debtors and obligors, if any.)’’
10
General Statutes § 42a-9-614 (1) provides that ‘‘[a] notification of disposi-
tion must provide the following information . . . .’’ Subdivision (C) requires
that such notice include ‘‘[a] telephone number from which the amount that
must be paid to the secured party to redeem the collateral under section 42a-
9-623 is available . . . .’’ General Statutes § 42a-9-614 (1) (C).
11
The presale notice provides, beneath the list of money past due and
repossession costs: ‘‘In addition to the charges listed above, you will incur
storage fees. Please contact the [r]epossession agent to determine the amount
of the charge.’’ The defendant argues that because the presale notice only
provided contact information for the credit union and not for the repossession
agent, the defendant was not provided with a number with which she could
learn the amount she needed to pay to redeem the vehicle.
12
General Statutes § 36a-785 (e), titled ‘‘Proceeds of resale,’’ provides in
relevant part: ‘‘Not later than thirty days after the resale, the holder of the
contract shall give the retail buyer a written statement itemizing the disposition
of the proceeds. . . .’’
13
After filing the present appeal, the defendant filed a motion for articulation
with the trial court on February 27, 2020. Specifically, the defendant requested
articulation of the trial court’s ‘‘basis for rejecting [the defendant’s] contention
‘[that the plaintiff] didn’t send [the defendant] a written statement itemizing
the disposition of the vehicle’s sales proceeds,’ which violates § 36a-785 (e)
of RISFA and bars recovery.’’ This contention was not raised in the defendant’s
amended answer, but was argued in her posttrial brief. The trial court did
not rule on the motion for articulation and the defendant did not file a motion
to compel the court to issue a ruling.
14
Although the defendant articulates this argument as part of her itemized
statement claim, because this question was, in fact, properly preserved, we
reach the merits of this claim.