Aviles et al v. Wayside Auto Body, Inc. et al

Filing 60

ORDER granting in part and denying in part 46 defendant Wayside Auto Body, Inc.'s Motion for Summary Judgment; and granting in part and denying in part 50 defendant Wells Fargo Bank, N.A.'s Motion for Summary Judgment. See attached memorandum of decision. Signed by Judge Vanessa L. Bryant on 09/30/14. (Rock, K.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
JACQUES AVILES, and SABRINA SOTO,
Plaintiffs,
v.
WAYSIDE AUTO BODY, INC., d/b/a
SKYLINE RECOVERY SERVICE; and
WELLS FARGO BANK, N.A., d/b/a
WELLs FARGO DEALER SERVICES,
Defendants.

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CIVIL ACTION NO.
3:12-CV-01520-VLB

SEPTEMBER 30, 2014

MEMORANDUM OF DECISION GRANTING IN PART AND DENYING IN PART
WAYSIDE AUTO BODY, INC.’S MOTION FOR SUMMARY JUDGMENT AND
GRANTING IN PART AND DENYING IN PART WELLS FARGO BANK, N.A.’s
MOTION FOR SUMMARY JUDGMENT
INTRODUCTION
Before the court are motions for summary judgment filed by defendants
Wayside Auto Body, Inc., d/b/a Skyline Recovery Service, (“Wayside”) and Wells
Fargo Bank, N.A., d/b/a Wells Fargo Dealer Services (“Wells Fargo”), in which
defendants seek summary judgment on all claims in plaintiffs Jacques Aviles
(“Aviles”) and Sabrina Soto’s (“Soto”) complaint. For the reasons stated
hereafter, Wayside’s motion for summary judgment is granted in part and denied
in part and Wells Fargo’s motion for summary judgment is granted in part and
denied in part.
I. FACTS
A. Facts as to Wayside
The following facts are undisputed unless otherwise noted. On July 2,
2009 Aviles purchased a 2006 Honda Accord (the “Honda”) from Carmax Auto
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Superstores, Inc., at which time he financed the purchase by entering into a retail
installment sales contract (the “RISC”). Wayside 56(a)(1) Statement ¶ 1. The
RISC provided by its terms that Aviles would be in default if he failed to make any
payment required by the RISC, and that upon default, the Honda could be
repossessed. Wayside 56(a)(1) Statement ¶¶ 2-3. The RISC states explicitly that
it cannot be orally modified. Wayside 56(a)(1) Statement ¶ 4.
As of August 2012, Aviles knew that he was “at least two months behind”
in his payments due under the RISC. Wayside 56(a)(1) Statement ¶ 5. In fact,
Aviles was four months behind on his payments due under the RISC in August
2012. Wayside 56(a)(1) Statement ¶ 6.
On August 7, 2012, Aviles called Wells Fargo to discuss the fact that he
was behind on his payments under the RISC, and spoke with someone known to
him only as “Cha.” Wayside 56(a)(1) Statement ¶ 7. Cha told Aviles that
“anything, we discuss, [she’s] going to take a note of.” Wayside 56(a)(1)
Statement ¶ 8. According to Aviles, Wells Fargo’s telephone representative told
Aviles that if he failed to make a payment by August 11, 2012, his car would be
released for repossession. Wayside 56(a)(1) Statement ¶ 9. However, according
to Wells Fargo’s notes regarding the August 7, 2012 conversation, Wells Fargo’s
telephone representative told Aviles that the order for repossession remained
active, and would be suspended only if Aviles made a payment of $650.46 and
made acceptable payment arrangements for the remaining balance. Wayside
56(a)(1) Statement ¶ 10. The telephone representative’s notes of the August 7,
2012 call with Aviles provide that Aviles was “fully aware” that the repossession

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order remained active and would be suspended only upon payment. Wayside
56(a)(1) Statement ¶ 12. The court need not and does not resolve the conflicting
accounts of the August 7 telephone dispute in this opinion. It is undisputed that
Wells Fargo sent Wayside a repossession order for the Honda on July 2, 2012.
Wayside 56(a)(1) Statement ¶ 13. T
On August 8, 2012, Aviles was driving the Honda with Soto, who is his
niece, riding as a passenger. Wayside 56(a)(1) Statement ¶ 14. Aviles drove the
Honda to Steben Auto Body Shop in West Hartford, Connecticut to get an
estimate for the cost of repairs for damage from an auto accident unrelated to
this litigation. Wayside 56(a)(1) Statement ¶ 14-15, 19. Aviles parked the Honda
and went inside the auto body shop while Soto remained in the vehicle, in a
reclined position. Wayside 56(a)(1) Statement ¶¶ 17-18.
Wayside received the order to repossess the Honda on July 2, 2012.
Wayside 56(a)(1) Statement ¶ 13. After searching for the Honda for approximately
three weeks, on August 8, 2012 Robert Penny (“Penny”), a tow truck driver
employed by Wayside, spotted the Honda in front of a body shop in West
Hartford, Connecticut. Wayside 56(a)(1) Statement ¶ 19-20.
When Penny found the Honda at the body shop it was parked “nosed [in]
front of one of the garages so [Penny] backed into it.” Wayside 56(a)(1)
Statement ¶ 21. Penny then “lowered the boom, and it made contact with the
[Honda’s] rear tires.” Wayside 56(a)(1) Statement ¶ 22. Soto was still in the
vehicle at that time, and felt something “slam into the car.” Wayside 56(a)(1)
Statement ¶ 23. Soto then sat up to see what was happening, and saw Penny

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standing at her window yelling at her, telling her to “get the [expletive deleted]
out of the car.” Wayside 56(a)(1) Statement ¶ 25. Penny also told Soto “you need
to get your [expletive deleted] out of the car. I’m taking the car,” and “I’m here to
take the car. I’m here to repossess the car.” Wayside 56(a)(1) Statement ¶¶ 26,
28. Penny did not open the door, reach through the open window of the car, or
take any physical acts to remove Soto from the vehicle. Wayside 56(a)(1)
Statement ¶ 29.
Aviles had been inside the body shop for approximately thirty seconds
when a woman ran into the body shop, and asked Aviles if he owned the Honda.
Wayside 56(a)(1) Statement ¶ 32. When he answered “yes,” the woman told him
“there’s some guy screaming at the girl inside.” Wayside 56(a)(1) Statement ¶ 33.
Aviles then ran outside to see what was happening, where he saw Penny telling
Soto “get the [expletive deleted] out of the car” and “[g]et your [expletive deleted]
things out of the car. Wayside 56(a)(1) Statement ¶¶ 34-35. Aviles then told
Penny to “[g]et away from her.” Wayside 56(a)(1) Statement ¶ 37. Penny then
asked Aviles if he was Jacques Aviles, and when Aviles answered affirmatively,
Penny told Aviles “[g]ive me the keys to your [expletive deleted] car and get your
[expletive deleted] out,” and “I’m repossessing your vehicle.” Wayside 56(a)(1)
Statement ¶¶ 38-39. Aviles then told Penny that Penny could not repossess the
vehicle because Aviles had “an agreement with the bank.” Wayside 56(a)(1)
Statement ¶ 40.
At some point during the encounter between Aviles and Penny, Aviles
asked Soto to retrieve some papers from the trunk of the Honda. Wayside

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56(a)(1) Statement ¶ 41. Soto then reached across the interior of the vehicle to
pull the trunk release latch, exited the vehicle, retrieved the papers from the trunk
and gave them to Aviles, and then returned to sitting inside the vehicle. Wayside
56(a)(1) Statement ¶¶ 42-43. At no point during the time she was outside of the
vehicle to retrieve the papers from the trunk did Penny approach her or prevent
her from doing anything. Wayside 56(a)(1) Statement ¶ 44.
Aviles told Penny to “call the bank,” at which point Penny returned to his
truck and called his office. Wayside 56(a)(1) Statement ¶¶ 45-46. Someone from
Penny’s office then called Wells Fargo, and was told that there were no
arrangements with Aviles, and reiterated its authorization to repossess the
vehicle. Wayside 56(a)(1) Statement ¶ 46. Penny then exited his truck and told
Aviles that he was taking the Honda. Wayside 56(a)(1) Statement ¶ 47.
Because of the way the Honda was parked at that time, Aviles could not
drive it forward, and the tow truck was blocking Aviles from driving the Honda
backwards. Wayside 56(a)(1) Statement ¶¶ 48-49. Aviles looked under the
vehicle and saw ““two steel forks jutting beyond the back tire...they weren’t
elevated to the car yet, they were on the floor but they were there in such a way
that [Aviles] wouldn’t be able to go back anyways.” Wayside 56(a)(1) Statement ¶
50.
Aviles then got back into the Honda, which Penny did not prevent him from
doing. Wayside 56(a)(1) Statement ¶¶ 52-53. While in the Honda, Aviles had a
conversation with Soto, told her “let’s just go,” and put the keys in the vehicle’s
center console. Wayside 56(a)(1) Statement ¶¶ 52, 54. Soto then picked up the

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keys and told Aviles “don't leave the keys” and “let’s go.” Wayside 56(a)(1)
Statement ¶ 56.
Although it is not relevant to this opinion, the court notes that the parties
dispute the fact of whether Aviles’s refusal to give the keys to Penny was Aviles’s
own idea, or whether he was influenced by Soto to keep the keys. According to
Wayside, Penny had told Aviles that Aviles could clean out the Honda if he gave
Penny the keys to the vehicle, and Aviles replied “okay.” Wayside 56(a)(1)
Statement ¶ 51. Wayside asserts that Aviles wanted to leave the keys in the
vehicle, thereby turning them over to Penny, but that Soto hold Aviles “hell, no.”
Wayside 56(a)(1) Statement ¶ 55. Plaintiffs dispute this characterization of the
facts. Wayside 56(a)(1) Statement ¶¶ 51, 55.
Aviles then removed his personal belongings from the Honda. Wayside
56(a)(1) Statement ¶ 57. Aviles told Penny that he would not give Penny the keys
to the Honda, and Aviles kept the keys as he and Soto walked away from the body
shop. Wayside 56(a)(1) Statement ¶¶ 57-58. Aviles was afraid that Penny would
chase after him and Soto and attempt to take the keys, so Aviles put the keys in a
bush in front of a nearby home. Wayside 56(a)(1) Statement ¶¶ 59-60.
Throughout the incident, Penny never touched Aviles or threatened him
with a weapon. Wayside 56(a)(1) Statement ¶¶ 61-62. The parties dispute
whether Penny threatened violence with his words. Wayside 56(a)(1) Statement ¶
63; Plaintiffs’ Wayside 56(a)(2) Statement ¶ 63. This factual dispute need not and
will not be resolved in this opinion.

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Penny never tried to remove the keys from Aviles’s person, never entered
the vehicle to search for the keys, and did not pursue Aviles and Soto when they
left the body shop parking lot. Wayside 56(a)(1) Statement ¶¶ 64-66.
Neither plaintiff has seen a doctor for any medical treatment, or a
psychiatrist or psychologist about any emotional distress, from the encounter
with Penny. Wayside 56(a)(1) Statement ¶¶ 67-68, 70-71. Aviles has not spoken to
any family members or friends about any emotional distress from the encounter
with Penny, and Soto has not spoken to any family members about any emotional
distress from the incident with Penny. Wayside 56(a)(1) Statement ¶ 69, 72.
B. Facts as to Wells Fargo
The following facts are undisputed unless otherwise noted. On July 2,
2009 Aviles purchased a 2006 Honda Civic (the “Honda”) from Carmax Auto
Superstores, Inc., at which time he financed the purchase by entering into a retail
installment sales contract (the “RISC”), which was co-signed by Aviles’s mother,
Olga Amador. Wells Fargo 56(a)(1) Statement ¶¶ 1-2. The RISC was then
assigned to defendant Wells Fargo, at which time Wells Fargo filed a UCC-1 with
the Connecticut Office of the Secretary of State, reflecting Well Fargo’s status as
a first lienholder on the Honda. Wells Fargo 56(a)(1) Statement ¶¶ 3-4. Under the
terms of the RISC, plaintiff was obligated to make 72 monthly payments of
$325.23, beginning August 16, 2009. Wells Fargo 56(a)(1) Statement ¶ 5.
The RISC contains several provisions relevant to this litigation: (1) it
explicitly states that there shall be no oral modifications of its terms, Wells Fargo
56(a)(1) Statement ¶ 6; (2) it provides that plaintiff will be in default if he fails to

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make any payment under the contract, Wells Fargo 56(a)(1) Statement ¶ 7; and (3)
by the terms of the contract Aviles agrees to pay an annual percentage rate, all
late fees on untimely payments, and upon default, all reasonable collection costs,
including reasonable attorneys’ fees, repossession expenses, and storage costs,
Wells Fargo 56(a)(1) Statement ¶ 8.
On May 18, 2012, Wells Fargo mailed Aviles a Notice of Right to Cure
(“Cure Notice”), notifying Aviles that he was in default on the RISC and warning
him that if he failed to cure the default, the Honda could be repossessed pursuant
to the RISC. Wells Fargo 56(a)(1) Statement ¶ 15. As of May 18, 2012, Aviles had
missed certain monthly scheduled payments, and had incurred other obligations,
fees, and charges, such that he had an outstanding balance of $827.82. Wells
Fargo 56(a)(1) Statement ¶ 14. Aviles continued to miss his monthly payments;
as of August 7, 2012, had missed four payment obligations from April through
July 2012, and other fees and charges. Wells Fargo 56(a)(1) Statement ¶¶ 17-19.
Aviles called Wells Fargo on the morning of August 7, 2012. Wells Fargo
56(a)(1) Statement ¶ 20. Although it is undisputed that the call occurred, the
parties dispute the contents of that call. Wells Fargo, relying on a Customer Call
Log (the “CCL”), asserts that Aviles stated on the call that a neighbor had told
him that the neighbor had seen some people asking about the Honda. Wells
Fargo 56(a)(1) Statement ¶ 20. Wells Fargo represents that it did not make an oral
agreement that Wells Fargo would not repossess the vehicle in response to
Aviles’s promise to pay. Id. According to Wells Fargo, Aviles indicated that he
wanted to pay half of his outstanding balance of $1,300.02 and make

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arrangements to pay the remainder. Id. Wells Fargo asserts that Aviles was told
that there was an active order for repossession of the Honda, and that the order
for repossession would not be put on hold until and unless Aviles made a
payment of $651.00. Id. Wells Fargo’s notes on the call indicate that “cust fully
aware” that the repossession would only be put on hold if Aviles complied with
the plan to pay the outstanding balance. Id. Plaintiffs, relying on Aviles’s
affidavit submitted in opposition to Wells Fargo’s motion for summary judgment,
dispute Wells Fargo’s description of the content of the August 7 telephone call.
Plaintiffs’ Wells Fargo 56(a)(2) Statement ¶ 20.
As a result of Aviles’s default and his failure to cure that default, Wells
Fargo hired Wayside to repossess the Honda. Wells Fargo 56(a)(1) Statement ¶
23. Wayside’s work for Wells Fargo was done pursuant to a Repossession
Services Agreement (the “RSA”) the two entered into on November 5, 2010. The
RSA provides that it is governed by California law. Wells Fargo 56(a)(1)
Statement ¶ 27. The RSA explicitly provides that Wells Fargo and Wayside are
independent contractors, that Wayside has sole control of its employees, that
Wells Fargo cannot control how repossessions are handled, and that Wayside is
prohibited from engaging in tortious or criminal behavior in performing its
services under the agreement. Wells Fargo 56(a)(1) Statement ¶¶ 25-26. Wells
Fargo has no ownership interest in Wayside and Wayside is not a parent,
subsidiary or affiliated company of Wells Fargo. Wells Fargo 56(a)(1) Statement
¶¶ 29-30. Wells Fargo does not have the right to direct and control Wayside’s
work, nor does Wells Fargo give Wayside’s to truck driver instructions as to how

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to conduct the repossession. Wells Fargo 56(a)(1) Statement ¶¶ 31-32. Wells
Fargo 56(a)(1) Statement ¶ 33. Wayside provides its drivers with a list of orders
for repossessions in a driver’s area, and the driver searches for the vehicles.
Wells Fargo 56(a)(1) Statement ¶ 34. Wells Fargo does not provide the
instrumentalities, tools, or the place of work for Wayside, and Wayside conducts
repossessions for other clients in addition to Wells Fargo. Wells Fargo 56(a)(1)
Statement ¶¶ 35-36. Pursuant to the RSA, Wells Fargo pays Wayside fees for the
services Wayside provides; in this case Wayside charged Wells Fargo $375.00 for
repossessing the Honda, as well as $35.00 per day in storage fees. Wells Fargo
56(a)(1) Statement ¶¶ 37-38.
Wayside repossessed the Honda on August 8, 2012. . Wells Fargo 56(a)(1)
Statement ¶ 39. Aviles and Penny had a conversation during the repossession, in
which Aviles told Penny that he had an agreement with the bank. Wells Fargo
56(a)(1) Statement ¶ 40. Although Penny typically has no communications with
Wells Fargo while conducting repossessions, in this case Penny called Wayside’s
operation manager to ask if it was true that Aviles had some agreement with
Wells Fargo. Wells Fargo 56(a)(1) Statement ¶¶ 33, 41. Wayside’s operation
manager then called Wells Fargo, after which he called Penny and told him that
Aviles did not have an agreement with the bank, and that the repossession
remained authorized and Penny should continue with the repossession. Wells
Fargo 56(a)(1) Statement ¶ 41.

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Plaintiff Soto is not a party to the RISC, nor is she listed as an owner on the
Honda’s registration or certificate of title. Wells Fargo 56(a)(1) Statement ¶¶ 4849.
II.LEGAL STANDARD
Summary judgment should be granted “if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). The moving party bears the burden of
proving that no factual issues exist. Vivenzio v. City of Syracuse, 611 F.3d 98,
106 (2d Cir. 2010). “In determining whether that burden has been met, the court is
required to resolve all ambiguities and credit all factual inferences that could be
drawn in favor of the party against whom summary judgment is sought.” Id.
(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Matsushita
Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). “If there is any
evidence in the record that could reasonably support a jury's verdict for the
nonmoving party, summary judgment must be denied.” Am. Home Assurance
Co. v. Hapag Lloyd Container Linie, GmbH, 446 F.3d 313, 315-16 (2d Cir. 2006)
(internal quotation marks and citation omitted).
“A party opposing summary judgment cannot defeat the motion by relying
on the allegations in his pleading, or on conclusory statements, or on mere
assertions that affidavits supporting the motion are not credible. At the summary
judgment stage of the proceeding, Plaintiffs are required to present admissible
evidence in support of their allegations; allegations alone, without evidence to
back them up, are not sufficient.” Welch–Rubin v. Sandals Corp., No. 3:03-cv-

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00481, 2004 U.S. Dist. LEXIS 22112, at *4 (D. Conn. Oct. 20, 2004) (internal
quotation marks and citations omitted); Martinez v. State of Connecticut, 817 F.
Supp. 2d 28, 37 (D. Conn. 2011). Where there is no evidence upon which a jury
could properly proceed to find a verdict for the party producing it and upon whom
the onus of proof is imposed, such as where the evidence offered consists of
conclusory assertions without further support in the record, summary judgment
may lie. Fincher v. Depository Trust and Clearance Co., 604 F.3d 712, 726-27 (2d
Cir. 2010).
III. ANALYSIS
Plaintiffs assert six claims against Wayside in their complaint: (1)
violations of the FDCPA; (2) a state law claim for intentional infliction of
emotional distress; (3) state law claim for conversion asserted only by Aviles; (4)
violation of the Connecticut Unfair Trade Practices Act (“CUTPA”); (5) violation of
the Connecticut Retail Installment Sales Financing Act (“RISFA”); and (6) a
violation of Article Nine of the Connecticut Uniform Commercial Code (“UCC”);
and five claims against the defendant Wells Fargo: (1) a state law conversion
claim; (2) violation of the Connecticut Creditors Collection Practices Act
(“CCPA”); (3) violation of CUTPA; (4) violation of RISFA; (5) violation of the UCC.
A. Aviles’s FDCPA Claim Against Wayside
Plaintiffs allege that Wayside violated 15 U.S.C. § 1692f(6) by breaching the
peace when repossessing the Honda. Wayside argues that they did not breach
the peace, and that they thus cannot be liable under the FDCPA.

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A claim for violation of the FDCPA requires the plaintiff to allege the
following three elements: (1) that the plaintiff is a “consumer” who allegedly owes
a debt or a person who has been the object of efforts to collect a consumer debt;
(2) the defendant collecting the debt is a “debt collector” as that term is defined
by the FDCPA; and (3) that the defendant has engaged in any act or omission in
violation of the FDCPA. See Pape v. Amos Fin., LLC, No. 13cv63, 2014 U.S. Dist.
LEXIS 27047, at *7 (D. Conn. Mar. 4, 2014). Here the first prong is satisfied, as no
party disputes that Aviles is a “consumer” who allegedly owes a debt. Nor does
Wayside dispute that it is a “debt collector” as that term is defined in the FDCPA,
15 U.S.C. § 1692a(6). The only question is whether Wayside engaged in any act or
omission in violation of the FDCPA.
“Repossession companies are ordinarily beyond the scope of the FDCPA.”
Clark v. Auto Recovery Bureau, 889 F. Supp. 543, 546 (D. Conn. 1994). However,
federal law provides:
A debt collector may not use unfair or unconscionable means to collect or
attempt to collect any debt. Without limiting the general application of the
foregoing, the following conduct is a violation of this section:
(1) The collection of any amount (including any interest, fee, charge, or
expense incidental to the principal obligation) unless such amount is
expressly authorized by the agreement creating the debt or permitted by
law.
(2) The acceptance by a debt collector from any person of a check or other
payment instrument postdated by more than five days unless such person
is notified in writing of the debt collector's intent to deposit such check or
instrument not more than ten nor less than three business days prior to
such deposit.
(3) The solicitation by a debt collector of any postdated check or other
postdated payment instrument for the purpose of threatening or instituting
criminal prosecution.
(4) Depositing or threatening to deposit any postdated check or other
postdated payment instrument prior to the date on such check or
instrument.
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(5) Causing charges to be made to any person for communications by
concealment of the true purpose of the communication. Such charges
include, but are not limited to, collect telephone calls and telegram fees.
(6) Taking or threatening to take any nonjudicial action to effect
dispossession or disablement of property if-(A) there is no present right to possession of the property claimed as
collateral through an enforceable security interest;
(B) there is no present intention to take possession of the property;
or
(C) the property is exempt by law from such dispossession or
disablement.
15 U.S.C. § 1692f(1)-(6). Thus, the exception to this general rule is that a
repossession company may be held liable under section 1962f(6), which prohibits
“[t]aking or threatening to take any nonjudicial action to effect dispossession or
disablement of property if--(A) there is no present right to possession of the
property claimed as collateral through an enforceable security interest.” Clark,
889 F. Supp. at 546 (quoting 15 U.S.C. § 1692f(6)).
Determination of whether Wayside had a “present right” to the Honda via
an enforceable security interest turns on Article Nine of the UCC. Clark, 889 F.
Supp. at 546. A secured party's right to use self-help to take possession of its
collateral after default is restricted by Connecticut General Statute Section 42a-9609 which provides:
(a) After default, a secured party:
(1) May take possession of the collateral; and
(2) Without removal, may render equipment unusable and dispose of
collateral on a debtor's premises under section 42a-9-610.
(b) A secured party may proceed under subsection (a):
(1) Pursuant to judicial process; or
(2) Without judicial process, if it proceeds without breach of the
peace.

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Conn. Gen. Stat.. § 42a-9-609. Thus, after a default, a secured party may “take
possession of the collateral,” only if it can do so without judicial process “if it
proceeds without breach of the peace.” Conn. Gen. Stat. § 42a-9-609(a)(1), (b)(1).
It is undisputed that Wells Fargo had a valid and enforceable security
interest in the Honda, and that plaintiff was in default on the RISC. It is also
undisputed that pursuant to the RSA, Wayside was entitled to act on behalf of
Wells Fargo in taking possession of the Honda. The only question at issue is
whether Wayside breached the peace when repossessing the vehicle, thereby
forfeiting the right to take possession of the vehicle without judicial process. If
no breach of the peace occurred, then Wayside had a “present right” to
possession of the vehicle pursuant to the UCC, and could not be liable under the
FDCPA. See Clark, 889 F. Supp. at 547.
Wayside argues that it did not breach the peace because there was no
physical contact with either of the plaintiffs, the police were not called, Wayside
did not use trickery or deception, Aviles would have surrendered his keys had it
not been for Soto’s instructions to keep the keys, and because the plaintiffs were
allowed to remove their personal belongings before the vehicle was removed.
Wayside Mem. at 14-15.
The UCC does not define what it means to breach the peace. Connecticut
precedent suggests that a repossessor may breach the peace if they repossess a
vehicle in the face of oral protest from the owner of the vehicle. See, e.g., State v.
Indrisano, 613 A.2d 1375, 1380 n.7 (Conn. App. Ct. 1992), rev’d on other grounds,
640 A.2d 986 (Conn. 1994) ("When the creditor repossesses in disregard of the

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debtor's oral protest, most courts find the creditor guilty of breach of peace. A
rule that an oral protest is sufficient to foreclose nonjudicial repossession is wise
because it does not beckon the repossessing creditor to the brink of violence.")
(quoting 4 James J. White & Robert S. Summers, Uniform Commercial Code § 348 at 447 (6th ed. 2010); Clark, 889 F. Supp. at 546 (“By orally protesting the
repossession, a debtor can undermine the creditor's right to repossess
collateral.”) (citing Indrisano, 613 A.2d at 1380 n.7); Vitale v. First Fidelity Leasing
Group, 35 F. Supp. 2d 78, 81 (D. Conn. 1998) (noting that “[a] breach of the peace
can occur when the debtor raises an oral objection to the repossession.”) (citing
Clark, 889 F. Supp. at 546-47); cf. Boles v. County of Montgomery, No. 6:11-cv522, 2014 U.S. Dist. LEXIS 18265, at *25-26 (N.D.N.Y. Feb. 13, 2014) (stating that
“[i]t is clear that a mere verbal objection to the removal of property constitutes a
breach of the peace” and declining to grant summary judgment on plaintiff’s state
law conversion and UCC claims because "choices between conflicting versions
of events, and the weighing of evidence are matters for the jury, not for the court
on a motion for summary judgment,") (quoting Fischl v. Armitage, 128 F.3d 50, 55
(2d Cir. 1997)); Hensley v. Gassman, 693 F.3d 681, 689-90 (6th Cir. 2012) ("[A]n
objection, particularly when it is accompanied by physical obstruction, is the
debtor's most powerful (and lawful) tool in fending off an improper repossession
because it constitutes a breach of the peace requiring the creditor to abandon his
efforts to repossess.").
Wayside acknowledges this precedent, but argues that it was overruled by
a 2010 decision from this court, In re Bolin & Co. LLC, 437 B.R. 731, 755-56 (D.

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Conn. 2010). This argument is unpersuasive for two reasons: (1) In re Bolin was
decided by this court, which lacks the ability to explicitly overturn a state court
precedent; and (2) regardless of this court’s ability to set state law, a review of In
re Bolin shows that it does not does not abrogate the rule that oral protest is
enough to establish breach of the peace.
The In re Bolin opinion provides a list of examples of breach of the peace,
but it does not represent that the list is all inclusive: “Examples of breach of the
peace include . . . .” In re Bolin, 437 B.R. at 755 (emphasis added). Although the
In re Bolin court did not include oral objection in its list of examples of conduct
that breaches the peace, the text of the opinion demonstrates that the court was
not attempting to set forth an exhaustive list of the ways in which the peace may
be breached. Further, the facts of In re Bolin are not analogous to the facts at
hand, as there was no oral objection to the repossession in that case. The In re
Bolin court notes that the debtor owners of a jewelry store authorized the debt
collector’s admission to the store, and did not attempt to stop the debt collector
from taking possession of the store-owned jewels. The court’s conclusion that
no breach of the peace occurred was based upon “[the debt collector’s]
admission to the store, coupled with the absence of any and violence, force, or
struggle in taking [debtor’s] inventory.” In re Bolin, 437 B.R. at 757. Thus, In re
Bolin is not factually analogous to this case as there was no resistance and thus
no confrontation in that case, no loud words, nothing even close to the sort of
confrontation that occurred in the instant case.

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Wayside also places great weight on an Eighth Circuit case, Clarin v.
Minnesota Repossessors, Inc., 198 F.3d 661, 664 (8th Cir. 1999). Wayside asserts
that they may rely on this case because the In re Bolin court cited to authority
from the Eighth Circuit. The Clarin decision is not controlling in this district, but
more importantly, it is not sufficiently analogous to the facts at hand to be
persuasive. Although the plaintiff in Clarin protested the repossession, there was
no indication that the repossessors themselves ever raised their voices or used
expletives. Further, the plaintiff in that case ceased protesting the repossession
before the vehicle was removed, which the court construed as constructive
consent. Clarin, 198 F.3d at 663-65.
Wayside also argues that even if a breach of peace did occur, that breach
did not occur until after Wayside had taken possession of the Honda, and
therefore they cannot be liable under the FDCPA. However, the question of when
Wayside took possession of the vehicle, and whether they had repossessed the
vehicle before any oral objection is a material disputed question of fact that must
be decided by the jury. Cf. Boles, 2014 U.S. Dist. LEXIS 18265, at *24 (denying
summary judgment where the parties disputed when repossession was
completed). This case is clearly distinguishable from Clark, as in that case the
towing company had “already removed the [vehicle] from its parking place” at the
time the debtor objected to the repossession. Clark, 889 F. Supp. at 548.
Because there is a material disputed question of fact as to whether and when
Wayside breached the peace in repossessing the Honda, Wayside’s motion for
summary judgment as to this claim is denied.

18 

B. Soto’s FDCPA Claim Against Wayside
Wayside argues that Soto cannot maintain an FDCPA claim, as she is not a
“consumer” as defined by the FDCPA. Wayside Mem. at 16. Plaintiffs do not
dispute that Soto is not a “consumer” as defined by the FDCPA. Instead,
plaintiffs argue that pursuant to section 1692k(a), “any person” has standing to
sue, and need not meet the definition of “consumer.” Pl. Wayside Obj. at 17.
Although this court has not found controlling authority from the Second
Circuit on this question, many courts from other circuits have held that standing
under section 1692f is not limited to “consumers” and instead extends to
“anyone aggrieved by a debt collector's unfair or unconscionable collection
practices.” Todd v. Collecto, Inc., 731 F.3d 734, 738-39 (7th Cir. 2013) (finding that
third party had standing to sue under section 1692f); see also Corson v. Accounts
Receivable Mgmt., No. 13-01903, 2013 U.S. Dist. LEXIS 112282, at *13-14 (D.N.J.
Aug. 9, 2013) (finding that non-consumer plaintiff had standing to under section
1692f because “[that] section [is] not restricted to ‘consumers’”); Strouse v.
Enhanced Recovery Co., LLC, 956 F. Supp. 2d 627, 633 n.5 (E.D. Pa. 2013) (noting
that a plaintiff may have standing to bring a section 1692f claim even if they are
not a “consumer” under the FDCPA). This court finds this authority persuasive,
as allowing third parties standing under section 1692f serves the aim of
eliminating unfair or unconscionable collection practices which may injure third
parties. This conclusion is particularly compelling under the facts of this case
where the third party was the subject of the conduct which is alleged to have
breached the peace. Soto was in the vehicle when Penny approached it to

19 

complete the process of repossession. When he noticed her Penny profanely
instructed Soto to exit the vehicle which she alleges caused her alarm. These
facts distinguish this case from those in which the conduct forming the basis of
the claim was remote in time, place and foreseeability from the ultimate harm
allegedly suffered by the claimant. Wayside’s motion for summary judgment on
Soto’s FDCPA claim is denied.
C. Both Plaintiffs’ Intentional Infliction of Emotional Distress Claim Against
Wayside
Wayside argues that Penny’s conduct was not sufficiently extreme and
outrageous to support a claim for intentional infliction of emotional distress.
Wayside Mem. at 22-23. In support of this Wayside argues that it is undisputed
that Penny never touched either plaintiff, neither plaintiff sought any sort of
mental health treatment or have any conversations with anyone regarding any
emotional distress, and that no witness at the auto body shop felt compelled to
call the police or intervene. Wayside Mem. at 23-24. Plaintiffs argue that the
issue must be resolved by the jury because a reasonable mind could find that
Penny’s conduct was extreme and outrageous. Pl. Wayside Obj. at 20.
Connecticut law requires a plaintiff to establish the following four
elements: “(1) that the actor intended to inflict emotional distress or that he knew
or should have known that emotional distress was the likely result of his conduct;
(2) that the conduct was extreme and outrageous; (3) that the defendant's
conduct was the cause of the plaintiffs distress; and (4) that the emotional
distress sustained by the plaintiff was severe.” Appleton v. Bd. Of Ed. Of Town of

20 

Stonington, 757 A.2d 1059, 1062 (Conn. 2000) (quoting Petyan v. Ellis, 510 A.2d
1337, 1342 (1986)).
Quoting Mellaly v. Eastman Kodak Co., 597 A.2d 846, 847 (Conn. 1991),
Wayside argues that behavior that is “merely insulting or displays bad manners
or results in hurt feelings,” is insufficient to support a claim for intentional
infliction of emotional distress. Wayside Mem. at 24. The Mellaly court further
articulated the standard for evaluating a claim for intentional infliction of
emotional distress: “So far as it is possible to generalize from the cases, the rule
which seems to have emerged is that there is liability for conduct exceeding all
bounds usually tolerated by decent society, of a nature which is especially
calculated to cause, and does cause, mental distress of a very serious kind."
Mellaly, 597 A.2d at 847 (quoting W. Prosser & W. Keeton, Torts (5th Ed. 1984), §
12, p. 60). "Whether the defendant's conduct and the plaintiff's resulting distress
are sufficient to satisfy . . . these elements is a question, in the first instance, for
[the] court. Only where reasonable minds can differ does it become an issue for
the jury.” Bell v. Bd. Of Ed., 739 A.2d 321, 327 (Conn. App. Ct. 1999) (quoting
Mellaly, 597 A.2d at 847).
This court finds that in the absence of the plaintiffs having demonstrated
that they suffered mental distress of a very serious kind, as they failed to allege
any facts to support the severity of their distress such as medical treatment or
the testimony of family members’ or friends’ observations of behavior
manifesting mental distress of a very serious kind, plaintiffs have not raised a
triable issue of fact as to this essential element and therefore the claims must be

21 

dismissed. As the Second Circuit observed when considering a plaintiff’s claims
for emotional distress in a section 1983 case:
“[A] plaintiff's testimony of emotional injury must be substantiated by other
evidence that such an injury occurred, such as the testimony of witnesses
to the plaintiff's distress, see Miner v. City of Glens Falls, 999 F.2d 655, 663
(2d Cir. 1993), or the objective circumstances of the violation itself. See id.;
Walz v. Town of Smithtown, 46 F.3d 162, 170 (2d Cir.1995). Evidence that a
plaintiff has sought medical treatment for the emotional injury, while
helpful, see, e.g., Carrero v. New York City Hous. Auth., 890 F.2d 569, 581
(2d Cir.1989), is not required. Miner, 999 F.2d at 663.”
Patrolmen’s Benevolent Association of the City of New York v. City of New York,
310 F.3d 43, 55 (2d Cir. 2002); see also Caltabiano v. BSB Bank & Trust Co., 387 F.
Supp. 2d 135, 142 (E.D.N.Y. 2005) dismissing plaintiff’s claim for emotional
damages under the Fair Credit Reporting Act where plaintiff’s only evidence
consisted of his own testimony and the potential testimony that could be offered
at trial by a physician that plaintiff began seeing only after commencing
litigation). Accordingly the court grants Wayside’s motion for summary judgment
as to both plaintiffs’ claims for intentional infliction of emotional distress.
D. Aviles’s State Law Conversion Claim Against Wayside
Wayside argues that it is not liable for conversion because it did not breach
the peace in repossessing the Honda. Wayside Mem. at 21. Aviles does not
respond directly to Wayside’s arguments regarding his conversion claim.
Regardless, a failure to respond does not necessarily constitute a waiver of that
claim in this case, as plaintiff responded indirectly by establishing a genuine
question of material fact as to whether there was a breach of the peace during the
repossession.

22 

“Conversion is defined as ‘an unauthorized assumption and exercise of the
right of ownership over goods belonging to another, to the exclusion of the
owner's rights.’” Clark, 889 F. Supp. at 548 (quoting Moore v. Waterbury Tool Co.,
199 A. 97, 100 (Conn. 1938)). A claim of conversion requires a plaintiff to
establish four elements: “(1) the items [defendant] took belonged to [plaintiff], (2)
[defendant] deprived [plaintiff] of the items for an indefinite period of time, (3)
[defendant’s] conduct was not authorized, and (4) [defendant’s] conduct harmed
[plaintiff].” In re Bolin, 437 B.R. at 752 n.12 (citing Label Sys. Corp. v.
Aghamohammadi, 852 A. 2d 703, 729 (Conn. 2004)).
By asserting that they did not breach the peace in repossessing the Honda,
Wayside appears to be arguing that their conduct was authorized, and thus
plaintiff cannot satisfy the third element. Cf. Bruneau v. W. & W. Transp., 82 A.2d
923, 924 (Conn. 1951) (finding that plaintiff failed to prove conversion where
plaintiff’s truck was lawfully repossessed). As the question of whether Wayside
breached the peace in repossessing the Honda, and thus carried out an unlawful
repossession, is a disputed question of material fact to be decided by the jury,
the court denies Wayside’s motion for summary judgment on this claim.
Finally, as Wayside notes in its memorandum, plaintiffs’ conversion claim
appears to have been brought only on behalf of Aviles. Although the introduction
to the complaint states that “[p]laintiffs assert claims against [Wayside], for . . .
conversion, . . . ,” Compl. ¶ 1 (emphasis added), the body of the complaint alleges
that “[b]ecause [Wayside] was unable to repossess the Vehicle without breach of
the peace, it was not entitled to repossess the Vehicle, and [Wayside] is liable to

23 

Aviles for conversion.” Compl. ¶ 68. The court agrees that the complaint pleads
a conversion claim only on behalf of Aviles and plaintiffs have not addressed and
appear to have conceded this issue in their objection to Wayside’s motion for
summary judgment. Further, plaintiffs do not claim that Soto owned the property
at issue, thereby failing to assert an essential element of the claim.
E. Aviles’s CUTPA Claim Against Wayside
Wayside argues that a mere breach of the peace is insufficient to support
liability under CUTPA. Wayside Mem. at 18. Wayside also argues that it
committed no unfair practice, as it had authority to repossess Aviles’s vehicle,
and it later released the vehicle to Aviles when he redeemed it. Wayside Mem. at
8. Plaintiff argues that Wayside is liable under CUTPA if it breached the peace
while repossessing the Honda, as it is against the public policy of Connecticut to
breach the peace during repossession. Pl. Wayside Obj. at 17.
To determine whether a practice violates CUTPA, courts in Connecticut
consider: “(1) Whether the practice, without necessarily having been previously
considered unlawful, offends public policy as it has been established by statutes,
the common law, or otherwise--in other words, it is within at least the penumbra
of some common law, statutory, or other established concept of unfairness; (2)
whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it
causes substantial injury to consumers, [competitors or other businesspersons].
. . . All three criteria do not need to be satisfied to support a finding of [a violation
of CUTPA]." Macomber v. Travelers Prop. & Cas. Corp., 804 A.2d 180, 196 (Conn.

24 

2002) (quoting Hartford Elec. Supply Co. v. Allen-Bradley Co., 736 A.2d 824, 842
(Conn. 1999)).
“While it is true, as the defendant argues, that a violation of the
repossession statutes does not automatically constitute a violation of CUTPA and
an isolated instance of failing to comply with these statutes need not be deemed
to violate CUTPA, it is also true that allegations concerning a repossession
carried out in breach of the peace may constitute a CUTPA violation.” Negri v.
Auto Lock Unlimited, Inc., No. CV040198688, 2004 Conn. Super. LEXIS 1530, at *89 (Conn. Super. Ct. June 9, 2004) (declining to dismiss plaintiff’s CUTPA claim
based on allegation of repossession carried out in breach of the peace); Becker v.
Ford Motor Credit Co., No. CV 970082522S, 2000 Conn. Super. LEXIS 69, at *4-6
(Conn. Super. Ct. Jan. 10, 2010) (declining to grant summary judgment on
plaintiff’s CUTPA claims where plaintiffs raised a genuine issue of material fact
about the reasonableness and fairness of defendant’s conduct in repossessing
their vehicle).
Wayside’s citation to Behrens v. Fountain Village Associates, No.
CV030825248, 2004 Conn. Super. LEXIS 3653 (Conn. Super. Ct. Dec. 8, 2004) is
unpersuasive. That case is distinguishable from this case, as there was no
allegation that the towing company breached the peace in towing plaintiff’s car,
there was no confrontation between the plaintiff and the towing company as
plaintiff was not present when the car was towed, and the judge in that case
explicitly noted that “[t]here is no evidence that Whitey's employee was
discourteous or abusive to the plaintiff.” 2004 Conn. Super. LEXIS 3653, at *2.

25 

As there is a genuine question of material fact as to whether Wayside
breached the peace in repossessing the Honda, the court denies Wayside’s
motion for summary judgment on this claim.
F. Soto’s CUTPA Claim Against Wayside
Defendant argues that Soto has no standing to assert a claim against
Wayside under CUTPA because here claims were “too remote” because Soto had
no interest in the Honda. Wayside Mem. at 20. Plaintiff argues that Soto’s claims
are not “too remote” because her injuries arose directly from Wayside’s conduct.
Pl. Wayside Obj. at 19.
The Connecticut courts apply “traditional common-law principles of
remoteness and proximate causation to determine whether a party has standing
to bring an action under CUTPA." Conn. Pediatric Med. Ass’n v. Health Net of
Conn., Inc., 28 A.3d 958, 962 (Conn. 2011) (quoting Vacco v. Microsoft Corp., 793
A.2d 1048, 1065 (Conn. 2002)). “if the injuries claimed by the plaintiff are remote,
indirect or derivative with respect to the defendant's conduct, the plaintiff is not
the proper party to assert them and lacks standing to do so. [When], for example,
the harms asserted to have been suffered directly by a plaintiff are in reality
derivative of injuries to a third party, the injuries are not direct but are indirect,
and the plaintiff has no standing to assert them." Conn. Podiatric Med. Ass’n, 28
A.3d at 962 (quoting Ganim v. Smith & Wesson Corp., 780 A.2d 98,119-20 (Conn.
2001)).
Wayside relies on Vacco v. Microsoft Corp. in support of its argument that
Soto’s claims are too remote to sustain a CUTPA claim. Vacco is distinguishable

26 

here, because the plaintiff in Vacco was an indirect purchaser. The plaintiff in
Vacco was an indirect purchaser as he did not purchase the disputed software
directly from the defendant, but instead purchased a computer containing the
challenged software from a third-party retail store. The Connecticut Supreme
Court found that the plaintiff’s injuries were too remote in relation to the
defendant’s conduct to assert a CUTPA claim. Vacco, 793 A.2d at 1067.
Wayside’s citation to Vacco is unpersuasive. This is not a case in which the
plaintiff’s alleged injuries are indirect, or in which Soto is attempting to recover
for harms suffered by a third party. Soto is not alleging injuries that are “remote,
indirect or derivative.” She is alleging direct injuries arising from Wayside’s
conduct toward her personally.
However, the inquiry does not end there. As Wayside’s co-defendant Wells
Fargo points out, standing under CUTPA requires that the plaintiff have “some
sort of business relationship” with the defendant business “such that he suffers
injury as either a consumer or competitor of the defendant or as some other
businessperson affected by its unfair or deceptive acts.” Gersich v. Enter. Rent a
Car, No.3:95-cv-01053, 1995 U.S. Dist. LEXIS 22277, at *14 (D. Conn. Nov. 20,
1995); see also Larsen Chelsey Realty Co. v. Larsen, 656 A.2d 1009, 1019 (Conn.
1995).
Although Wayside did not raise a challenge under this line of argument, the
court may address the issue of standing sua sponte. See, e.g., Mancuso v.
Consolidated Edison Co. of N.Y., 130 F. Supp. 2d 584, 588 (S.D.N.Y. 2001) (citing
United States v. Hays, 515 U.S. 737, 742 (1995)). Further, Soto had a chance to

27 

respond to this line of argument in response to Wells Fargo’s challenge to her
standing under CUTPA. See Pl. Wells Fargo Obj. at 7-11. Plaintiff argues in her
objection to Wells Fargo’s motion for summary judgment that standing under
CUTPA is not limited to customers, competitors, and businesspeople, and that
instead, the proper standing inquiry is whether plaintiff had some “direct
interaction” with the business. Pl. Wells Fargo Obj. at 11. Plaintiff cites to no
authority in support of her argument for expanding the scope of standing under
CUTPA, and the court declines to adopt this position, as it is not consistent with
the weight of authority and is wholly unsupported by any legal authority what so
ever and the plaintiff has failed to show an basis for a good faith belief in the
argument. See, e.g., Gersich, 1995 U.S. Dist. LEXIS 22277, at *15 (dismissing
plaintiff’s CUTPA claims because “plaintiffs, by virtue of being in a motor vehicle
accident with a customer of Enterprise, are not consumers or competitors of
[defendant] or other businesspersons affected by [defendant’s] conduct”);
Goldsich v. City of Hartford, No. 3:06-cv-00628, 571 F. Supp. 2d 340, 2008 U.S.
Dist. LEXIS 62330, at *16-17 (D. Conn. Aug. 15, 2008) (granting summary judgment
on plaintiff’s CUTPA claim against defendant concert promoter because plaintiff
had not purchased a ticket to the concert and thus was not a customer,
competitor, or other business person); Rosenthal v. Ford Motor Co., 462 F. Supp.
2d 296, 312 (D. Conn. 2006) (granting defendant’s motion for summary judgment
on plaintiff’s CUTPA claim because plaintiffs are not consumers or competitors of
businesspersons affected by defendant’s conduct); Conn. Pipe Trades Health
Fund v. Philip Morris, 153 F. Supp. 2d 101, 113 n.13 (D. Conn. 2001) (finding that

28 

health and welfare trust funds could not bring CUTPA claim against tobacco
company for expenses paid to cover smoking-related injuries suffered by health
plan members because there was no “connection or nexus -- business,
consumer, competitor, commercial or otherwise -- between the union health
funds and the tobacco industry”).
Because it is undisputed that Soto is not a consumer or competitor of
Waysides, or in a business relationship with Wayside and she fails to cite any
legal authority in support of her claim or in contravention of the authority
undermining the validity of her claim, the court grants Wayside’s motion for
summary judgment as to Soto’s CUTPA claim.
G. Both Plaintiffs’ RISFA Claim Against Wayside
Wayside argues that it is not liable to either plaintiff under RISFA because
it did not breach the peace. Wayside Mem. at 20. Wayside also argues that it is
not liable to Soto under RISFA because Soto is not a “retail buyer” as that term is
defined under RISFA because she had not signed any relevant retail installment
contract did not have an interest in the Honda. Wayside Mem. at 20.
Plaintiffs have not responded to either of Wayside’s arguments in regard to
RISFA. Although plaintiffs argue generally that there is a genuine issue of
material fact about whether Wayside breached the peace in repossessing the
Honda, plaintiffs admit that “violations of RISFA and UCC claims cannot be
asserted against Wayside because it is not a creditor.” Pl. Wayside Obj. at 18. As
plaintiffs have failed to respond to Wayside’s arguments, and have expressly and
unequivocally admitted that that claims cannot be maintained against Wayside

29 

under RISFA, the court construes plaintiff as having conceded the point and
withdrawn these claims. Accordingly the court dismisses the RISFA claims.
H. Both Plaintiffs’ UCC Claim Against Wayside
Wayside argues that it is not liable to either plaintiff under the UCC
because it did not breach the peace. Wayside Mem. at 21. Just as with their
RISFA claims, plaintiffs do not respond to Wayside’s challenge to their UCC
claim, and further affirmatively state that “violations of RISFA and UCC claims
cannot be asserted against Wayside because it is not a creditor.” Pl. Wayside
Obj. at 18. As plaintiff has failed to respond to Wayside’s arguments, and
affirmatively assert that no claim can be asserted against Wayside under the
UCC, the court construes plaintiff as having conceded the point and withdrawn
these claims. Accordingly, and the court dismisses the claims.
I. Aviles’s State Law Conversion Claim Against Wells Fargo
Wells Fargo argues that judgment must be entered on Aviles’s conversion
claim because the RISC authorized Wells Fargo to repossess the Honda. It is
undisputed that Aviles was in default on the RISC, and by the terms of the RISC
Wells Fargo thus had the right to repossess the vehicle. Wells Fargo Mem. at 16.
Plaintiffs do not dispute that Aviles was in default on the RISC. Plaintiffs
argue that Wells Fargo was only authorized to repossess the vehicle if they could
do it without breaching the peace. Plaintiffs’ Well Fargo Obj. at 14. The terms of
the RISC only allow Wells Fargo to repossess the Honda if they do it “peacefully.”
Plaintiffs’ Well Fargo Obj. at 14; Wells Fargo Mem., Coville Declaration, Exhibit A

30 

at WF/AVILES 0002. Further, the UCC and RISFA only permit repossessions to
proceed if they can be done without breach of the peace.
Because there is a genuine material question of fact as to whether Wayside
breached the peace in repossessing the vehicle, the court declines to grant
summary judgment on this claim. Wells Fargo’s motion is denied as to this claim.
J. Soto’s State Law Conversion Claim Against Wells Fargo
Soto withdraws her state law conversion claim against Wells Fargo in her
objection to Wells Fargo’s motion for summary judgment. Pl. Wells Fargo Obj. at
3. As Wells Fargo has not objected, the court dismisses this claim.
K. Aviles’s CCPA Claim Against Wells Fargo
Aviles alleges two CCPA claims against Wells Fargo in his complaint: (1) a
claim that Wells Fargo required payments in excess of the amounts required to
redeem the Honda under the statute; and (2) a claim arising from the alleged
breach of the peace during the repossession of the Honda. Compl. ¶ 55. Plaintiff
drops his first CCPA claim in his objection to Wells Fargo’s motion for summary
judgment. Pl. Wells Fargo Obj. at 15. As Wells Fargo has not objected, the court
grants plaintiff’s motion to withdraw this claim.
The CCPA provides that “No creditor shall use any abusive, harassing,
fraudulent, deceptive or misleading representation, device or practice to collect
or attempt to collect any debt." Conn. Gen. Stat. § 36a-646. Wells Fargo argues
that they cannot be liable for plaintiff’s CCPA claim arising from an alleged
breach of the peace during the repossession of the Honda because Wayside was
an independent contractor. Wells Fargo Mem. at 14. Plaintiff argues in response

31 

that the duty not to breach the peace is non-delegable. Pl. Wells Fargo Obj. at 1113.
Although plaintiff provides authority establishing that he need not
establish an agency relationship in order to sustain claims under the UCC and
RISFA, plaintiff cites to no such authority in regards to the CCPA. The court itself
knows of no such authority, and declines to adopt that position with respect to
the CCPA. "The existence of an agency relationship is a question of fact." Nat’l
Publ’g Co. v. Hartford Fire Ins. Co., 949 A.2d 1203, 1212 (Conn. 2008) quoting
Wesley v. Shaller Subaru, Inc., 893 A.2d 389, 400 (Conn. 2006)). The elements to
be considered are “(1) a manifestation by the principal that the agent will act for
him; (2) acceptance by the agent of the undertaking; and (3) an understanding
between the parties that the principal will be in control of the undertaking.” Nat’l
Publ’g Co., 949 A.2d at 1212-13 (quoting Beckenstein v. Potter & Carrier, Inc., 464
A.2d 6, 13-14 (Conn. 1983)). Some of the factors to be considered include:
“whether the alleged principal has the right to direct and control the work of the
agent; whether the agent is engaged in a distinct occupation; whether the
principal or the agent supplies the instrumentalities, tools, and the place of work;
and the method of paying the agent.” Nat’l Publ’g, 949 A.2d at 1213 (quoting
Beckenstein, 464 A.2d at 14). “In addition, [a]n essential ingredient of agency is
that the agent is doing something at the behest and for the benefit of the
principal.” Id. (quoting Beckenstein, 464 A.2d at 14). “[T]he labels used by the
parties in referring to their relationship are not determinative; rather, a court must
look to the operative terms of their agreement or understanding." Nat’l Publ’g,

32 

949 A.2d at 1213. “[T]he nature and extent of an agent's authority is a question of
fact for the trier where the evidence is conflicting or where there are several
reasonable inferences which can be drawn.” Wesley, 893 A.2d at 400 (quoting
Gordon v. Tobias, 817 A.2d 683, 687 (Conn. 2003)).
Wells Fargo argues that California law should govern the inquiry into
whether an agency relationship exists between Wayside and Wells Fargo because
“[t]he terms of the RSA and the parties’ performance under it are governed by
California law.” Wells Fargo Mem. at 10. The RSA states: “The validity of this
Agreement and any of its terms or provisions, as well as the rights and duties of
the parties hereunder, shall be governed by the laws or the State of California.”
Wells Fargo Mem., Coville Declaration, Exhibit G at WF/AVILES 0077. Although
plaintiff does not dispute that the contract provides that the contract itself, and
the rights and duties of the parties under the contract should be governed by
California law, it is Connecticut law that governs the inquiry into whether an
agency relationship exists. Even if this court were to apply California law to the
question of whether an agency relationship existed, the result would be the same,
as California law also provides that “[t]he existence of an agency is a factual
question within the province of the trier of fact whose determination may not be
disturbed on appeal if supported by substantial evidence.” L. Byron Culver &
Assocs. v. Jaoudi Indus. & Trading Corp., 1 Cal. Rptr. 2d 680, 683 (Cal. App. Ct.
1991).
This court is not persuaded that the undisputed facts are sufficient to
establish the absence of an agency relationship as a matter of law, and thus there

33 

is a material question of fact to be decided by the jury as to whether Wayside
acted as Wells Fargo’s agent with regard to this repossession. Although Wells
Fargo cites to the text of the RSA, and the separation between the two
companies, as well as other facts, it is also undisputed that Penny paused in the
middle of the repossession to call his supervisor, who then called Wells Fargo,
who then gave Penny permission to proceed with the repossession. Further, the
customer call log kept by Wells Fargo appears to indicate that Wayside
periodically gave Wells Fargo updates on its search for the Honda. Wayside
Mem., Ex. 6 at WF/AVILES 0027, 0031. These facts raise a genuine issue of
material fact as to the nature of the relationship between Wells Fargo and
Wayside, specifically Wayside’s independence in the repossession of the Honda
Because the jury must decide whether there is an agency relationship
between Wayside and Wells Fargo, and because there is a material dispute of fact
as to whether Wayside breached the peace in repossessing the vehicle, the court
denies Wells Fargo’s motion for summary judgment on this claim.
Finally, although this regulation was not invoked by either party, the court
notes that the regulations implementing the CCPA provide that “[a] creditor shall
not engage in any conduct the natural consequence of which to a reasonable
person would be to harass or abuse such person in connection with the
collection of a debt. A creditor shall not intentionally engage in any conduct
which the creditor knows would harass or abuse any person. Without limiting the
general application of the foregoing, the following conduct is a violation of this
section: . . . (2) Using obscene or profane language or language the natural

34 

consequence of which to a reasonable person is to abuse the hearer or reader.”
Conn. Agencies Regs. § 36a-647-5 (2014). This regulation is explicitly
incorporated in the text of the section creating a private right of action under the
CCPA, section 36a-648, and may be relevant to determining liability at trial.
L. Soto’s CCPA Claim Against Wells Fargo
In addition to arguing that it cannot be liable because Wayside is not its
agent, Wells Fargo argues that Soto lacks standing to sue under the CCPA
because she is not a party to the RISC, and thus she is not a “consumer debtor”
as defined in the CCPA. Wells Fargo Mem. at 7-10. Plaintiff argues that standing
under the CCPA is not limited to consumer debtors. Pl. Wells Fargo Obj. at 4-7.
Because the court has addressed the agency argument above, supra Part III.K, it
will not address that argument again here.
Wells Fargo’s challenge to Soto’s standing under the CCPA ignores the
text of the section that creates the right of action, which provides that: “A
creditor, as defined in section 36a-645, who uses any abusive, harassing,
fraudulent, deceptive or misleading representation, device or practice to collect
or attempt to collect a debt in violation of section 36a-646 or the regulations
adopted pursuant to section 36a-6471 shall be liable to a person who is harmed by
such conduct.” Conn. Gen. Stat. § 36a-648(a) (emphasis added). Although there
is relatively little precedent regarding this section of the statute, which was
enacted in 2007, this court has can identify at least one case holding that a
plaintiff need not be a consumer debtor. In Mosley v. Green Tree Servicing, LLC,

1

The court having reviewed these regulations, finds nothing that affects the
outcome of this ruling.
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No. CV106006080, 2011 Conn. Super. LEXIS 1350 (Conn. Super. Ct. May 23, 2011)
plaintiff father brought suit against defendant creditor alleging damages from the
creditor’s attempts to collect a debt owed by plaintiff’s son. Because plaintiff was
not a co-signor of the debt, he was not a “consumer debtor” as defined by the
CCPA. The court denied defendant’s motion to strike plaintiff’s CCPA claim, and
held that “this statute section expressly authorizes a private cause of action to
any ‘person’ harmed by a creditor.” 2011 Conn. Super. LEXIS 1350, at *7.
The case cited by Wells Fargo, Jones v. Schiff, No. WWMCV095005545S,
2011 Conn. Super. LEXIS 2316 (Conn. Super. Ct. June 7, 2011), is unpersuasive.
That case does not address the CCPA, but rather, asks whether the underlying
debt was one incurred for “personal, family or household purposes,” which is
required to maintain a claim under the FDCPA. Although this case is not relevant
to the inquiry at hand, it is also distinguishable, as it is undisputed that the debt
at issue in this case satisfies the definition of debt under both the FDCPA and the
CCPA.
A finding that standing extends beyond consumer debtors is consistent
with the text of the statute. The legislature expressly included a definition for
“consumer debtor” in section 32a-646, but did not use the words “consumer
debtor” in creating the private right of action in section 32a-648, which suggests
an intent to create a private right of action that extends beyond just “consumer
debtors.” The court thus denies Wells Fargo’s motion for summary judgment as
to Soto’s CCPA claim.
M. Aviles’s CUTPA Claim Against Wells Fargo

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Plaintiffs assert that Wells Fargo violated CUTPA through its violations of
RISFA, the UCC, CCPA. Wells Fargo argues that it is not liable under CUTPA
because the alleged acts that occurred during the repossession were not
immoral, unethical, oppressive, or unscrupulous, and did not cause substantial
injury to consumers, competitors or other businessmen. Wells Fargo Mem. at 24.
Plaintiff argues that the question of whether the repossession was done in breach
of the peace is a material question of disputed fact. Pl. Wells Fargo Obj.
at 16-18.
As the court has already held that there is a material question of disputed
fact as to whether the peace was breached during the repossession of the Honda,
Wells Fargo’s motion for summary judgment is denied as to this claim. The court
notes also that plaintiff will have to demonstrate an agency relationship between
Wayside and Wells Fargo in order to establish CUTPA liability for Wells Fargo,
see, e.g., Negri, 2004 Conn. Super. LEXIS 1530, at 5, although the court leaves
that question for the jury, see supra Part III.K.
N. Soto’s CUTPA Claim Against Wells Fargo
Plaintiffs assert that Wells Fargo violated CUTPA through its violations of
RISFA, the UCC, CCPA. Wells Fargo argues that Soto lacks standing to bring a
claim pursuant to CUTPA because she is not a consumer, competitor, or other
businessperson with respect to the events at issue. Wells Fargo Mem. at 9-10. As
noted above, plaintiffs argue that Soto has standing because a plaintiff need not
be a consumer, competitor, or businessperson in order to have standing to sue
under CUTPA. Pl. Wells Fargo Obj. at 7-11.

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As it is undisputed that Soto is not a consumer or competitor of Wells
Fargo, nor is she in a business relationship with Wells Fargo, she has failed to
establish that she has standing to maintain a CUTPA claim against Wells Fargo,
see supra Part III.F. The court grants Wells Fargo’s motion for summary
judgment as to Soto’s CUTPA claim.
O. Aviles’s RISFA Claim Against Wells Fargo
In his complaint, Aviles alleges that Wells Fargo violated RISFA by: (1)
conditioning his ability to redeem the Honda on payment of finance charges,
installment payments, and late fees accrued after the repossession, Compl. ¶ 59;
(2) failing to send notice of the repossession and his right to redeem to his last
known address within 3 days of the repossession, Compl. ¶ 39; and (3) by
repossessing the Honda through its authorized agent in a manner that breached
the peace, Compl. ¶ 54. Aviles withdraws the first two RISFA claims against
Wells Fargo in his objection to Wells Fargo’s motion for summary judgment. Pl.
Wells Fargo Obj. at 15-16. As Wells Fargo has not objected, the court grants
plaintiff’s motion to withdraw these claims.
In regards to Aviles’s third RISFA claim, Wells Fargo argues that Wayside
is an independent contractor, and thus Wells Fargo cannot be held liable for a
RISFA violation arising from a breach of the peace committed by Wayside while
repossessing the vehicle. Wells Fargo Mem. at 10-13.
This argument is unpersuasive. Plaintiff argues correctly that secured
creditors may be held liable for the conduct of their agents in repossessing items,
a rule that has been recognized in Connecticut. RISFA states explicitly that a

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transaction subject to sections 36a-770 to 36a-788 of RISFA is “also subject to
the Uniform Commercial Code.” Conn. Gen. Stat. § 36a-770(a). The official
comments to the Connecticut UCC provide that “[i]n considering whether a
secured party has engaged in a breach of the peace, . . . courts should hold the
secured party responsible for the actions of others taken on the secured party's
behalf, including independent contractors engaged by the secured party to take
possession of collateral.” Conn. Gen. Stat. § 42a-9-609, Cmt. 3; see also Negri v.
Auto Lock Unlimited, CV040198688, 2004 Conn. Super. LEXIS 1530, at *6 n.5
(Conn. Super. Ct. June 9, 2004) (“As a matter of hornbook law, ‘the secured
creditor is generally liable not only for breaches of the peace that agents of the
secured creditor commit, but also for breaches of the peace that independent
contractors commit while employed by the creditor.’”) (quoting 4 J. White & R.
Summers, Uniform Commercial Code (5th Ed. 2002) § 34-8, p. 385 n.1 (2002)).
This court is thus persuaded that plaintiff need not demonstrate an agency
relationship between Wayside and Wells Fargo in order to establish a RISFA
claim against Wells Fargo.
Wells Fargo argues that the agreement between Wayside and Wells Fargo,
and their performance under that agreement, is governed by California law. Even
if, hypothetically, California law were to apply to the question of whether Wells
Fargo could be held liable for a breach of the peace by Wayside in Connecticut,
the result would be the same, as California courts appear to follow the same rule
as Connecticut. See, e.g., Henderson v. Security Nat’l Bank, 140 Cal. Rptr. 388,
390-91 (Cal. App. Ct. 1977) (holding creditor liable for torts committed by

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independent contractor repossessor). This argument is also unavailing as the
choice of law section relied upon governs the “[t]he validity of [the RSA] and any
of its terms or provisions, as well as the rights and duties of the parties
[t]hereunder,” not breach of the laws of the states in which the contract is
performed. Wells Fargo Mem., Coville Declaration, Exhibit G at WF/AVILES 0077.
The provisions of the contract bind only Wayside and Wells Fargo. Wells Fargo
Mem., Coville Declaration, Exhibit G at WF/AVILES 0071. Thus, only contractual
disputes between Wells Fargo and Wayside, such rights of indemnification, are
governed by California law; and thus the contract does not limit or abrogate the
duties and liabilities imposed the common law of the states in which the contract
is performed. Cf. Restatement (third) of Agency § 1.02 (“An agency relationship
arises only when the [elements of an agency relationship] are present. Whether a
relationship is characterized as agency in an agreement between parties or in the
context of industry or popular usage is not controlling.”).
Further, the cases cited by Wells Fargo are unpersuasive, as they deal with
the question of whether an agency relationship exists between two independent
contractors. See Cislaw v. Southland Corp., 6 Cal. Rptr. 2d 386, 388 (Cal. App. Ct.
1992) (considering whether an agency relationship exists between a franchisor
and its franchisee and finding that franchisor was not liable for wrongful death
arising from franchisee’s sale of clove cigarettes to a minor); City of Los Angeles
v. Meyers Bros. Parking Sys., Inc., 126 Cal. Rptr. 545, 546-47 (Cal. App. Ct. 1975)
(considering whether agency relationship exists between Century City and the
manager of Century City’s parking facilities and whether the manager thus owed

40 

certain business taxes). The authorities establishing liability for a secured
creditor for the acts of its independent contractor do not require the court to
inquire as to whether an agency relationship exists. The court therefore denies
Wells Fargo’s motion for summary judgment on plaintiff’s claim that Wells Fargo
breached RISFA through the acts of its independent contractor.
P. Soto’s RISFA Claim Against Wells Fargo
Soto withdraws her RISFA claim against Wells Fargo in her objection to
Wells Fargo’s motion for summary judgment. Pl. Wells Fargo Obj. at 3. As Wells
Fargo has not objected, the court dismisses this claim.
Q. Aviles’s UCC Claim Against Wells Fargo
Aviles alleges in his complaint that Wells Fargo violated the UCC by
repossessing the Honda in a manner in which its authorized agents breached the
peace. Compl. ¶ 54. Wells Fargo argues that Wayside was not Wells Fargo’s
agent, and thus Wells Fargo cannot be held liable for any breach of the peace
committed by Wayside. Wells Fargo Mem. at 10-14.
This argument is unpersuasive, because as described above in Part III.O,
plaintiff need not establish an agency relationship between a Wayside and Wells
Fargo in order to sustain a UCC claim against the secured creditor. Because it is
undisputed that Wells Fargo retained Wayside to repossess the Honda, but there
remains a material question of disputed fact as to whether there was a breach of
the peace, the court denies Wells Fargo’s motion for summary judgment as to
this claim.
R. Soto’s UCC Claim Against Wells Fargo

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Soto withdraws her UCC claim against Wells Fargo in her objection to
Wells Fargo’s motion for summary judgment. Pl. Wells Fargo Obj. at 3. As Wells
Fargo has not objected, the court dismisses this claim.
CONCLUSION
For the above described reasons, Wayside’s motion for summary judgment
is granted in part and denied in part, and Wells Fargo’s motion for summary
judgment is granted in part and denied in part. The claims remaining for trial are:
(1) both plaintiffs’ FDCPA claims against Wayside; (2) Aviles’s state law
conversion claim against Wayside; (3) Aviles’s CUTPA claim against Wayside; (4)
Aviles’s state law conversion claim against Wells Fargo; (5) both plaintiffs’ CCPA
claims against Wells Fargo; (6) Aviles’s CUTPA claim against Wells Fargo; (7)
Aviles’s RISFA claim against Wells Fargo; (8) Aviles’s UCC claim against Wells
Fargo.
The parties are reminded that trial on these claims shall proceed as
ordered by the court in its February 25, 2013 scheduling order [Dkt. No. 23], with
jury selection set for Tuesday, January 6, 2015, with evidence to proceed on
dates within the month of January to be determined after the court’s
consideration of the parties’ joint trial memorandum. Counsel and the parties
shall be prepared to present evidence on any day during the month of jury
selection. The joint trial memorandum, jointly prepared in accordance with the
court’s chambers practices, is due by November 28, 2014. All proposed voir dire
questions, proposed jury charge instructions, and motions in limine must be filed
along with the joint trial memorandum. All evidentiary objections raised in the

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Joint Trial Memorandum must be the subject of a motion in limine supported by a
memorandum of law citing applicable Second Circuit precedent.
The case is referred to Magistrate Judge Smith for a settlement conference
to be conducted, concluded, and if a settlement is reached, fully documented
preferably prior to December 23, 2014. Trial will not be continued for settlement
purposes.
IT IS SO ORDERED.

____/s/_____________
Hon. Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: September 30, 2014.

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