DocketNumber: No. CV 91-0283291
Citation Numbers: 1992 Conn. Super. Ct. 10446, 7 Conn. Super. Ct. 1323
Judges: LEHENY, J.
Filed Date: 11/18/1992
Status: Non-Precedential
Modified Date: 4/17/2021
On May 14, 1991, the plaintiff filed a complaint and application for a prejudgment remedy against Smulley, which the court, Thim J., granted on June 4, 1991. On July 17, 1991, the plaintiff filed a CT Page 10447 demand for disclosure of defense or judgment pursuant to Practice Book section 236. On July 23, 1991, the defendant filed a disclosure of defense. Subsequently, on September 10, 1991, the defendant filed an answer and asserted as a special defense violations of the Fair Credit Billing Act and requested a set-off. In addition, she brought a counterclaim against People's alleging violations of CUTPA.
People's filed a motion to strike the defendant's special defense and counterclaim together with a memorandum of law in support of its motion. The plaintiff filed the motion on the grounds that (1) the special defense fails to allege all of the essential elements necessary to trigger the provisions of the Fair Credit Billing Act; (2) CUTPA does not apply to banking institutions; and (3) banking institutions are exempted from CUTPA pursuant to General Statutes section
A motion to strike may be used to test the legal sufficiency of a complaint or any count therein to state a claim upon which relief can be granted. Practice Book sec. 152(1); see also Ferryman v. Groton,
AS TO THE SPECIAL DEFENSE
The plaintiff moves to strike the special defense as legally insufficient because the defendant has failed to allege all of the essential elements necessary to trigger the provisions of the Fair Credit Billing Act. "[The] Fair Credit Billing Act seeks to prescribe an orderly procedure for identifying and resolving disputes between CT Page 10448 a cardholder and a card issuer as to the amount due at any given time." Gray v. American Express Co.,
(1) setting forth or otherwise enabling the creditor to identify the name and account number of the cardholder;
(2) indicating the belief that there is an error and the amount of the error; and
(3) the reasons, to the extent applicable, supporting his belief that an error has been made.
The defendant's special defense alleges that the defendant, within sixty (60) days of receiving a statement of her account, sent People's written notification identifying herself and the account number and indicating that the amount set forth in the statement was inaccurate and that there was a billing error. The defendant, in her answer, has sufficiently alleged the first two requirements of section 1666(a). However, she has not alleged that the notice stated the reasons, to the extent applicable, supporting her belief that an error was made. Since she has failed to adequately allege the third requirement of section 1666(a) the motion to strike the special defense is granted.
AS TO THE COUNTERCLAIM
The plaintiff moves to strike the counterclaim on two grounds. The first is that CUTPA does not apply to banking institutions.
CUTPA is a remedial statute and must be construed liberally to effectuate its public policy objectives. Web Press Services Corp. v. New London Motors, Inc.,
"There is a split of authority, however, among the Superior Court decisions, and a majority of the cases hold that CUTPA does apply to banks.: (Citations omitted.) Andrus v. North American Bank,
that the language of the statute favors liberal construction (section
42-110b (d); that the activities intended for exemption are specifically enumerated (section42-110c ); that it is possible "to find methods, acts or practices not heretofore specifically declared unlawful by the FTC or the federal courts to be prohibited by the CUTPA." Wilson v. Fireman's Fund Ins. Co.,40 Conn. Sup. 336 ,338 (1985); that the holding of Mead v. Burns,199 Conn. 651 (1986) (insurance companies are subject to CUTPA. . .) may be analogized to the banking industry; and that the public policy underlying CUTPA (protection of the state's citizens from unscrupulous business practices) may not be fully realized by reposing all authority over banking activities in regulatory bodies.
Financial Federal Savings Bank v. Breen,
Secondly, the plaintiff asserts that, even if CUTPA applies to banking institutions, banks are exempted from CUTPA pursuant to General Statutes section
The plaintiff argues that Connelly v. Housing Authority,
This court agrees with the court in Andrus, supra, in which the court held that activities of banks do not fall within the exemption provided by section
Leheny, J.
American Express Co. v. Koerner , 101 S. Ct. 2281 ( 1981 )
Passini v. Decker , 39 Conn. Super. Ct. 20 ( 1983 )
Oscar S. Gray v. American Express Company , 743 F.2d 10 ( 1984 )
Wilson v. Firemen's Fund Insurance , 40 Conn. Super. Ct. 336 ( 1985 )
Norwich Savings Society v. Independent Bank & Trust Co. , 39 Conn. Super. Ct. 39 ( 1983 )