Dina v. Cuda & Associates

950 F. Supp. 2d 396, 2013 WL 2995439, 2013 U.S. Dist. LEXIS 85757
CourtDistrict Court, D. Connecticut
DecidedJune 13, 2013
DocketCivil Action No. 3:12-cv-0523 (JCH)
StatusPublished
Cited by3 cases

This text of 950 F. Supp. 2d 396 (Dina v. Cuda & Associates) is published on Counsel Stack Legal Research, covering District Court, D. Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dina v. Cuda & Associates, 950 F. Supp. 2d 396, 2013 WL 2995439, 2013 U.S. Dist. LEXIS 85757 (D. Conn. 2013).

Opinion

RULING RE: PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT (Doc. No. 41) AND DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (Doc. No. 53)

JANET C. HALL, District Judge.

I. INTRODUCTION

Plaintiff Juno N. Dina (“Dina”) brings this suit against defendant Cuda & Associates (“Cuda”) for violations of the Federal Debt Collection Practices Act, 15 U.S.C. § 1692e (“FDCPA”), the Connecticut Creditor’s Collection Practices Act, Conn. Gen.Stat. § 36a-648 (“CCPA”), and the Connecticut Unfair Trade Practices Act, Conn. GemStat. § 42-110g (“CUTPA”). Dina’s claims stem from Cuda’s issuance of a bank execution to collect a judgment entered against Dina in small claims court.

Before the court is Dina’s Motion for Partial Summary Judgment (Doc. No. 41) for a finding of liability and statutory damages as well as Cuda’s Motion for Summary Judgment (Doc. No. 53) as to all three claims.

II. STATEMENT OF FACTS

Cuda is a Connecticut limited liability company. Def. Local Rule (“L.R.”) 56(a)(2) St. ¶ 1. Benjamin Morris (“Morris”) was the managing member of Cuda for many years. Id. at ¶ 2. He was also an attorney admitted to practice in Connecticut and was the managing member of The Law Offices of Benjamin Morris, LLC. Id. Dina was the holder of personal credit cards from Chase Bank. Id. at ¶ 3.

Cuda is in the business of purchasing defaulted consumer debt and purchased Dina’s credit card debt after they went into default. Id. at ¶¶ 3-4, 8. Cuda has over 1,000 collection lawsuits on file in Connecticut state courts and engages legal counsel to undertake collection efforts.1 PI. L.R. 56(a)(1) ¶¶ 5-7.

Cuda took Dina to Bridgeport Small Claims Court on her defaulted credit card debt. Def. 56(a)(2) St. ¶ 8. The claim number for the case was SCC-372134. Id. at ¶ 10. Dina claims that Cuda was represented in small claims court by Morris in his capacity as managing member of Cuda and not as an attorney with The Law Offices of Benjamin Morris, LLC. PI. 56(a)(1) St. ¶ 9. Cuda denies this assertion, instead stating that Cuda was represented by The Law Offices of Benjamin Morris, LLC. Def. 56(a)(2) St. ¶ 9.

Default judgment in favor of Cuda entered against Dina on January 25, 2011, on one of the purchased Chase Bank credit card accounts (account number ending in 7133). Id. at ¶ 10. Donna Garamella, Vice President of Cuda, signed and submitted an Affidavit of Debt for the purposes of obtaining judgment. Id. at ¶ 11. According to Dina, she was never served in that action. PI. 56(a)(1) St. ¶ 12. However, according to Cuda, Dina must have been served because the Superior Court would not have entered judgment against Dina had it not been satisfied that she was properly served and provided sufficient notice. Def. L.R. 56(a)(2) St. ¶ 12. Judgment and costs were awarded for $1,697.80. PI. Mot. Summ. J., Ex. A.

On March 11, 2011, Cuda — either via Morris, himself, see PL 56(a)(2) St. ¶ 2, or the Law Offices of Benjamin Morris, LLC, [399]*399see Def. 56(a)(1) St. ¶ 2 — executed a Financial Institution Execution. The Connecticut State Court received the execution on March 22, 2011. Pl. 56(a)(2) St. ¶ 3. On March 31, 2011, the clerk granted ■ and issued the Financial Institution Execution. Id. at ¶ 13. According to Dina, Cuda, acting through its managing member and attorney, Morris, forwarded the execution to a Marshal, Winthrop W. Fry (“Marshal Fry”), for service; Marshal Fry received it on April 5, 2011. Pl. 56(a)(1) St. ¶ 14. According to Cuda, the Law Offices of Benjamin Morris, LLC — not Morris personally-forwarded the bank execution to Marshal Fry for service. Def. 56(a)(2) St. ¶ 14. Marshal Fry returned the execution as wholly unsatisfied on June 12, 2011.2 Id. at ¶ 15.

On July 5, 2011, Marshal Fry received the same execution for service on behalf of Cuda as judgment creditor as to Dina. Id. at ¶ 16; Marshal Fry Aff. 9 at ¶ 5. He again served the execution on plaintiffs bank on July 18, 2011. Def. 56(a)(2) St. at ¶ 17. The bank took a $100 processing fee out of plaintiffs account.3 Id. at ¶ 18. However, Marshal Fry returned the execution unsatisfied to Cuda’s attorney on September 28, 2011.4 Pl. Mot. Summ. J., Ex. C, Fry Aff. 9 at ¶ 7.

•Cuda, then, forwarded the same execution for service to Marshal Fry, Def. 56(a)(2) ¶ 21, however, Dina states that Cuda acted through its manager member and attorney, Morris, Pl. 56(a)(1) St. ¶ 21, whereas Cuda states that Cuda’s lawyer, the Law Offices of Benjamin Morris, LLC, forwarded the bank execution. Def. 56(a)(2) ¶ 21. Marshal Fry received the bank execution on , January 24, 2012 and served it on thg same bank on January 27, 2012. Id. at ¶ 22. The bank again took a $100 processing fee out of plaintiffs account. Id. at ¶ 23. Dina claimed and was granted an exemption, but did not receive the $100 processing fee back. Id. at ¶ 24; Dina Aff. ¶ 10.

Default judgment in favor of Cuda entered on March 2, 2011, against plaintiff on another purchased Chase account. Def. 56(a)(2) St. ¶ 26. The claim number for this case was SCC-378501. Pl. 56(a)(1) St. at ¶ 27: According to plaintiff, Garamella signed and submitted an Affidavit of Debt dated December 9, 2010, which referenced the same underlying account number (account number 7133) and balance as the earlier small claims case, SCC-372134. Id. However, according, to Dina, the SCC-378501 case involved a different account with a different balance.5 Id. Again, Dina [400]*400was not served in the case.6 Id. at ¶ 28. Judgment and costs were awarded for $2,026.36. PI. Mot. Summ. J., Ex. B.

Dina sued Marshal Fry in the United States District Court for the District of Connecticut for violating the FDCPA and CUTPA, based on Fry’s failure to abide by Connecticut General Statute section 52-367b. PL 56(a)(2) ¶¶ 8-9. The action against Marshal Fry was settled by the parties. Id. at ¶ 10. As part of the settlement, Marshal Fry paid to Dina and/or her attorney the sum of $3,500 in full and final settlement of all claims. Id. at ¶ 11.

III. STANDARD OF REVIEW

A motion for summary judgment “may properly be granted ... only where there is no genuine issue of material fact to be tried, and the facts as to which there is no such issue warrant judgment for the moving party as a matter of law.” In re Dana Corp., 574 F.3d 129, 151 (2d Cir.2009). Thus, the role of a district court in considering such a motion “is not to resolve disputed questions of fact but only to determine whether, as to any material issue, a genuine factual dispute exists.” Id. In making this determination, the trial court must resolve all ambiguities and draw all inferences in favor of the party against whom summary judgment is sought. See Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268, 274 (2d Cir.2009).

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Cite This Page — Counsel Stack

Bluebook (online)
950 F. Supp. 2d 396, 2013 WL 2995439, 2013 U.S. Dist. LEXIS 85757, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dina-v-cuda-associates-ctd-2013.