Carbone et al v. First NLC Financial Svc LLC et al
ORDER granting 41 Motion for Summary Judgment. Signed by Judge Alvin W. Thompson on 05/04/2010. (Jean-Louis, C)
UNITED STATES DISTRICT COURT DI S T R I C T OF CONNECTICUT ------------------------------------x W I L L I A M CARBONE and : J A C Q U E L Y N CARBONE, : : Plaintiffs, : : v. : Civil No.3:07CV01489(AWT) : F I R S T NLC FINANCIAL SERVICES, : L L C , and JOHN CASTODIO, : : Defendants. : ------------------------------------x O RD E R RE MOTION FOR SUMMARY JUDGMENT T h e plaintiffs, William Carbone and Jacquelyn Carbone, have m o v e d for summary judgment on the second count of their complaint a g a i n s t defendant John Castodio ("Castodio") for violation of the C o n n e c t i c u t Unfair Trade Practices Act, Conn. Gen. Stat. § 42-110a et seq. ("CUTPA"). For the reasons set forth below, the
m o t i o n for summary judgment is being granted. I . FACTUAL BACKGROUND The plaintiffs reside in North Haven, Connecticut. In October
2 0 0 6 , the plaintiffs contacted defendant First NLC Financial S e r v i c e s , LLC ("NLC") to refinance their residential mortgage. The
p l a i n t i f f s worked with defendant Castodio, who was an employee of NLC. During discussions about the loan application, Castodio told
t h e plaintiffs that, for the first two years of the loan, the p l a i n t i f f s ' monthly payments would be $1,550. O n or about October 19, 2006, a notary public arrived at the
plaintiffs' home for the closing on the refinance loan.
c l o s i n g , the plaintiffs saw for the first time that monthly p a y m e n t s were $1,850.52, i.e., approximately $300 more than C a s t o d i o told them. t h e closing. Jacquelyn Carbone contacted Castodio during
She discussed with Castodio the discrepancy in the Castodio informed Jacquelyn
a m o u n t of the monthly payments.
C a r b o n e that the first monthly payment would not be due until J a n u a r y 2007. He further informed her that NLC would do an in-
h o u s e refinance to lower the monthly payments to the agreed upon a m o u n t of $1,550. I n reliance upon Castodio's representation, the plaintiffs p r o c e e d e d with the closing. Thereafter, the plaintiffs received a
b i l l for the first monthly payment in the amount of $1,850.52, with a due date of December 1, 2006. C a s t o d i o to discuss the bill. Jacquelyn Carbone contacted Castodio informed her that there had
b e e n a computer glitch and that he would work with the mortgage s e r v i c e r to correct the bill. bill. He also told her not to pay the
Thereafter, the plaintiffs received numerous collection The plaintiffs paid
t e l e p h o n e calls related to the unpaid bill.
t h e bill and continued to ask Castodio about the in-house refinance t o reduce the amount of the bill for the monthly payment to $1,550. The in-house refinance was never done. Ultimately, the plaintiffs
w e r e unable to make the monthly mortgage payments and had to move o u t of their home.
L E G A L STANDARD
I n a motion for summary judgment, the burden is on the moving p a r t y to establish that there are no genuine issues of material f a c t in dispute and that it is entitled to judgment as a matter of law. See Rule 56(c), Fed. R. Civ. P.; Anderson v. Liberty Lobby, The moving party may satisfy this
I n c . , 477 U.S. 242, 256 (1986).
b u r d e n by demonstrating the absence of evidence supporting the n o n m o v i n g party's case. See PepsiCo, Inc. v. Coca-Cola Co., 315 The court construes the See
F . 3 d 101, 105 (2d Cir. 2002) (per curiam).
f a c t s in the light most favorable to the nonmoving party.
C i o f f i v. Averill Park Cent. Sch. Dist. Bd. of Educ., 444 F.3d 158, 1 6 2 (2d Cir. 2002), cert. denied, 127 S. Ct. 382 (2006). W h e n a motion for summary judgment is supported by documentary e v i d e n c e and sworn affidavits, the nonmoving party must do more t h a n vaguely assert the existence of an unspecified disputed m a t e r i a l fact or offer speculation or conjecture. See Western
W o r l d Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990). If the nonmoving party does not respond to the motion, the
c o u r t may accept as true the moving party's factual statements. See D. Conn. L. Civ. R. 56(a)1 ("All material facts set forth in [ t h e moving party's Rule 56(a)1] statement will be deemed admitted u n l e s s controverted....). Even if the motion is unopposed,
h o w e v e r , the court will not grant summary judgment unless it d e t e r m i n e d that the moving party is entitled to judgment as a m a t t e r of law. See Vermont Teddy Bear Co. v. 1-800 Beargram Co.,
373 F.3d 241, 242 (2d Cir. 2004). III. DISCUSSION
C U T P A provides that "[n]o person shall engage in unfair m e t h o d s of competition and unfair or deceptive acts or practices in t h e conduct of any trade or commerce." § 42-110b(a). Conn. Gen. Stat.
"Any person who suffers any ascertainable loss of
m o n e y or property, real or personal, as a result of the use or e m p l o y m e n t of a method, act or practice prohibited by section 4 2 - 1 1 0 b " may bring a civil action pursuant to CUTPA. S t a t . § 42-110g. Conn. Gen.
Connecticut courts have adopted the Federal Trade
C o m m i s s i o n ' s "cigarette rule" used to ascertain whether a practice i s unfair, looking at the following factors: ( 1 ) [w]hether the practice, without necessarily having been p r e v i o u s l y considered unlawful, offends public policy as i t has been established by statutes, the common law, or o t h e r w i s e - i n other words, it is within at least the p e n u m b r a of some common law, statutory, or other e s t a b l i s h e d concept of unfairness; (2) whether it is i m m o r a l , unethical, oppressive, or unscrupulous; (3) w h e t h e r it causes substantial injury to consumers, . . . All three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because o f the degree to which it meets one of the criteria or b e c a u s e to a lesser extent it meets all three. V e n t r e s v. Goodspeed Airport, LLC, 275 Conn. 105, 155 (2005) ( c i t a t i o n omitted). "[T]he ascertainable loss requirement is a threshold barrier w h i c h limits the class of persons who may bring a CUTPA action s e e k i n g either actual damages or equitable relief. . . . An
a s c e r t a i n a b l e loss is a deprivation, detriment [or] injury that is
capable of being discovered, observed or established. . . .
p l a i n t i f f need not prove a specific amount of actual damages in o r d e r to make out a prima facie case [under CUTPA]." Devan Motors
o f Fairfield, Inc. v. Infiniti Division of Nissan North America, I n c . , 579 F. Supp. 2d 294, 308 (D. Conn. 2008)(internal quotation m a r k s omitted; citations omitted). T h e plaintiffs contend that Castodio violated CUTPA by making i n t e n t i o n a l mispresentations to the plaintiffs. The court agrees.
In October 2006, Castodio agreed on behalf of NLC that the p l a i n t i f f s ' monthly payments would be $1,550 for the first two years. During the closing, the plaintiffs contacted Castodio and
w e r e reassured that an in-house refinance would be done so the b i l l s for their monthly payments were $1,550, as had been agreed. Additionally, after the plaintiffs received their first bill, C a s t o d i o reassured them that an in-house refinance was in progress. The plaintiffs suffered substantial injury as a result of C a s t o d i o ' s actions and misrepresentations. There is no issue of
m a t e r i a l fact as to whether Castodio misrepresented and misled the p l a i n t i f f s about what the amount of their monthly payments would be a n d thus engaged in conduct that was immoral, unethical, o p p r e s s i v e , or unscrupulous. See, e.g., IndyMac Bank, F.S.B. v.
R e y a d , No. 3:00CV835(CFD), 2006 WL 2092621, *5 (D. Conn. July 26, 2 0 0 6 ) ( f i n d i n g that in breach of contract "intentional and willful d i s h o n e s t y was immoral, unethical, oppressive, or unscrupulous."). B e c a u s e the court has concluded that there is no genuine issue
of material fact as to whether Castodio violated the second prong o f the "cigarette rule," it need not address whether an issue of m a t e r i a l fact exists as to the other two prongs. See Ventres v.
G o o d s p e e d Airport, LLC, 275 Conn. 105, 154 (Conn. 2005) (explaining t h a t "[a]ll three criteria do not need to be satisfied to support a f i n d i n g of unfairness" and "[a] practice may be unfair because of t h e degree to which it meets one of the criteria or because to a l e s s e r extent it meets all three"). T h u s , Castodio violated CUTPA, and the plaintiffs are entitled t o summary judgment on the second count of their complaint. Pursuant to Conn. Gen. Stat. § 42-110g(a), the plaintiffs are e n t i t l e d to actual damages for any ascertainable loss of money or p r o p e r t y resulting from Castodio's misrepresentations. The
p l a i n t i f f s are entitled to actual damages in the amount of $ 7 , 2 1 2 . 4 8 , which is the difference between the agreed upon monthly p a y m e n t of $1,550 and the charged monthly payment of $1,840.52, o v e r a two year period. T h e plaintiffs also seek punitive damages pursuant to Conn. G e n . Stat. § 42-110g(a). In order to award punitive or exemplary damages, evidence m u s t reveal a reckless indifference to the rights of others o r an intentional and wanton violation of those rights. . .. Accordingly, when the trial court finds that the d e f e n d a n t has acted recklessly, [a]warding punitive damages a n d attorney's fees under CUTPA is discretionary. C h i v e r t o n v. Federal Financial Group, Inc., 399 F. Supp. 2d 96, 1 0 2 - 1 0 3 (D. Conn. 2005).
CUTPA itself provides no guidance as to a method for d e t e r m i n i n g the amount of a punitive damages award. . . . Nevertheless, several methods have gained acceptance by the c o u r t s in Connecticut. . . . By common practice, courts g e n e r a l l y award punitive damages in amounts equal to actual d a m a g e s or multiples of the actual damages. . . . Many c o u r t s have followed the lead of the district court in B a i l e y Employment Sys. v. Hahn, 545 F.Supp. 62, 73 (D. C o n n . 1982), in doubling the amount of actual or c o m p e n s a t o r y damages. ... I n the absence of an explicit formula or prescribed method f o r determining the amount of punitive damages in this c a s e , the court takes as its guiding principle that the p u r p o s e of awarding punitive damages under CUTPA is to d e t e r future deceptive or unfair business practices by the d e f e n d a n t s and others. . . . Thus, federal courts in this d i s t r i c t have noted that, although "Section 42-110g does n o t specify how punitive damages are to be measured ... the a w a r d should serve the broad remedial goals of eliminating o r discouraging unfair methods of competition and unfair o r deceptive acts or practices." . . . Similarly, C o n n e c t i c u t courts have also held that a defendant's f i n a n c i a l standing is relevant to a determination of the a m o u n t of punitive damages to award for a CUTPA violation. . . . Accordingly, a punitive damages award under CUTPA s h o u l d take account of the financial status and size of the d e f e n d a n t to ensure that the damage award will have the d e t e r r e n t effect on the defendant and others that it is d e s i g n e d to achieve. Emerald Investments, LLC v. Porter Bridge Loan Co., No. 3:08-cv1 5 9 8 ( J C H ) , 2007 WL 1834507, *8-9 (D. Conn. June 25, 2007). H e r e , Castodio made misrepresentations to the plaintiffs with a reckless indifference to the plaintiffs' rights. Considering the
d e t e r r e n t effect of awarding punitive damages, and the plaintiffs' a c t u a l damages, the court concludes that an award of $5,000 in p u n i t i v e damages is appropriate. L a s t l y , the plaintiffs seek an award of attorneys' fees and
costs, pursuant to Conn. Gen. Stat. § 42-110g(d), totaling $7,730.80. The court finds the requested amount for attorneys'
f e e s and costs to be reasonable, and substantiated by the records s u b m i t t e d by the plaintiffs. See, e.g., Emerald Investments, LLC
v . Porter Bridge Loan Co., 2007 WL 1834507 (D. Conn. June 25, 2007). IV. CONCLUSION
F o r the reasons set forth above, plaintiffs' Motion for S u m m a r y Judgment (Doc. No. 41) is hereby GRANTED. The Clerk shall
e n t e r judgment, with respect to the second cause of action, i.e., t h e CUTPA claim, in favor of the plaintiffs against defendant John C a s t o d i o in the amount of $19,943.28, representing $7,212.48 in a c t u a l damages, $5,000 in punitive damages, and $7,730.80 for a t t o r n e y s ' fees and costs. The Clerk shall close this case. It is so ordered. S i g n e d this 4th day of May, 2010 at Hartford, Connecticut.
/s/AWT Alvin W. Thompson U n i t e d States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?