DocketNumber: No. CV95-0068142
Citation Numbers: 1996 Conn. Super. Ct. 1323-EEEEE
Judges: PICKETT, J.
Filed Date: 2/23/1996
Status: Non-Precedential
Modified Date: 4/17/2021
The plaintiff, Ford Motor Credit Company, commenced the present action against the defendant, Phyllis I. Britton, by service of a writ of summons and complaint on May 8, 1995. Attached to the complaint at the time of service was a copy of a document entitled "Assignment" which is a blank, unsigned form, and a copy of the original "Retail Installment Contract" complete with signatures. The complaint is an action for collection of a debt.
On July 26, 1995, the defendant filed an answer, special defense and counterclaim. The special defense and counterclaim allege breach of express warranties made by Torrington Ford, [footnote omitted] the seller of the vehicle.
The plaintiff filed the present motion for summary judgment on January 3, 1996, wherein it argues that there are no facts in the special defense or counterclaim which apprise Ford Motor Credit Company of the basis for defendant's claim against the plaintiff, Ford Motor Credit Company. In addition, the plaintiff argues that the special defense and counterclaim appear to be CT Page 1324 based on Connecticut General Statutes §
The defendant . . . relies on the language of the "Retail Installment Contract" for the proposition Ford Motor Credit Company is responsible for a dealer warranty as alleged by the defendant. The pertinent language of the Retail Installment Contract which was appended to the complaint and now relied upon by the defendant, is as follows: "Any holder of this consumer credit contract is subject to all claims and defenses which the debtor could assert against the seller of goods or services obtained pursuant hereto or with the proceeds hereof." . . .
Discussion: . . . Use of Summary Judgment to Test LegalSufficiency of Complaint
"The office of a motion for summary judgment is not to test the legal sufficiency of the complaint, but is to test for the presence of contested factual issues. Practice Book § 384."Burke v. Avitabile,
There is a split of agreement at the superior court level on whether a motion for summary judgment is the proper vehicle for challenging the sufficiency of the pleadings.2 This court, however relying on Boucher Agency v. Zimmer,
In the present case, the defendant filed an answer, special defense and counterclaim and the plaintiff has filed its reply to the special defense and the counterclaim. Therefore, the court will allow the motion for summary judgment to contest the sufficiency of the counterclaim. The court, however, finds that the plaintiff has not sustained its burden of demonstrating the absence of the genuine issues of material fact for several reasons.
First, the affidavit submitted in support of the motion for summary judgment states that Ford motor credit Company "was merely the finance company in the transaction" at issue and that "any warranties given to the [d]efendant . . . would have issued from the dealer, Torrington Ford., Inc." The plaintiff argues that it is not a dealer under Connecticut General Statutes §
Genuine issues of material fact exists not only with regard CT Page 1326 to whether Ford Motor Credit Company would become liable for the claims of the defendant under the contract, there also exists a question of fact with regard to the assignment between Ford Motor Credit Company as an assignee and the assignor, presumably Torrington Ford. The question of fact is raised by virtue of the assignment itself. The assignment appended to the plaintiff's complaint is a blank form document completely devoid of information and signatures. "[S]ummary judgment is to be denied where there exist `genuine issues of fact and inference of mixed law and fact to be drawn from the evidence before the Court.'"United Oil Co. v. Urban Redevelopment Commission, supra,
Because genuine issues of material fact exists with regard to the defendant's counterclaim the plaintiff's motion for summary judgment is denied.
Pickett, J.