Derisme v. Hunt Leibert Jacobson P.C.
880 F. Supp. 2d 311
D. Conn.2012Background
- Pro se plaintiff sues Hunt Leibert for FDCPA and CUTPA claims arising from a Connecticut foreclosure action.
- Foreclosure was initiated by Hunt Leibert as counsel for the lender; plaintiff challenges notices and representations related to the debt and mortgage.
- Court treats foreclosure as enforcement of a security interest under Connecticut law, not debt collection, for FDCPA purposes.
- Plaintiff’s FDCPA claims center on lack of a validation notice and alleged false/misleading statements in the foreclosure context.
- Court dismisses all FDCPA claims as inapplicable or unproven, and accordingly denies CUTPA relief; plaintiff’s remedy through TILA is also analyzed and rejected.
- Court grants summary judgment for Hunt Leibert and denies plaintiff’s cross-motion, closing the case.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| FDCPA applicability to foreclosure actions | Bey argues Hunt Leibert violated FDCPA sections g/e. | Leibert, as security-enforcer, falls outside FDCPA except 1692f(6). | FDCPA not applicable to security-enforcement actions; summary judgment for defendant on these claims. |
| Section 1692g(a) validation notice applicability | Failure to send validation notice within five days violated 1692g(a). | Foreclosure enforcers not debt collectors; if applicable, 1692g not triggered. | Not applicable; even if applicable, plaintiff cannot show violation given the consumer-initiated communication context. |
| Section 1692e false/misleading representations | Defendant misrepresented debt status and attorney status. | Enforcement of security interest; no false or deceptive debt collection practices. | No 1692e violation; actions fall outside FDCPA scope as to debt collection. |
| CUTPA viability dependent on FDCPA result | FDCPA violations support CUTPA claims. | If FDCPA not violated, CUTPA lacks predicate. | CUTPA claim fails with FDCPA outcome. |
| Absolute immunity and procedural defenses | CUTPA claims premised on pleadings; immunity applies. | Privilege extends to judicial proceedings; FDCPA focus governs. | CUTPA claim barred or not viable; no FTCA/FDCPA basis shown. |
Key Cases Cited
- Mortgage Electronic Registration Sys., Inc. v. White, 278 Conn. 219 (2006) (foreclosure treated as security enforcement, not debt collection under FDCPA (title theory))
- Town of Groton v. Mardie Lane Homes, LLC, 286 Conn. 280 (2008) (foreclosure results in vesting/divesting of title; foreclosure is equity, not debt collection)
- City of New Haven v. Gods Corner Church, Inc., 108 Conn.App. 134 (2008) (foreclosure is equity action; foreclosure judgment does not imply debt collection)
- Linden Condominium Assn., Inc. v. McKenna, 247 Conn. 575 (1999) (deficiency judgments—timing and conversion issues in insolvency/foreclosure)
- Simmons v. Roundup Funding, LLC, 622 F.3d 93 (2d Cir. 2010) (FDCPA not apply to bankruptcy proof of claim; relevance to foreclosures as regulated proceedings)