2006 Ct. Sup. 5818
No. CV05-4009495SConnecticut Superior Court Judicial District of Hartford at Hartford
March 23, 2006
MEMORANDUM OF DECISION ON MOTIONS TO STRIKE (NOS. 102, 105, 111)
GRANT H. MILLER, JUDGE.
Four of the defendants in this action have filed motions to strike various counts of the complaint.
Defendants Pristine Mortgage, LLC and Mark Chu have moved (No. 105) to strike Counts One, Three, Seven and Eight.
In Count One, plaintiff alleges that all four of the moving defendants acted in a conspiracy to induce the plaintiff to make a mortgage loan in excess of the value of the subject property to an unqualified purchaser. Defendants Pristine and Chu have moved to strike this count because they submit that plaintiff has not properly alleged a conspiracy between them and co-defendants Leighton Appraisal Service, LLC and Terrill Leighton.
While the First Count could have been drafted more clearly, the court finds that plaintiff has alleged sufficient facts to state a cause of action. In Paragraph 13, plaintiff alleges that Chu and Pristine committed seven acts in furtherance of a conspiracy to induce plaintiff to make the loan in question. In Paragraph 19, plaintiff alleges that Leighton and Leighton Appraisal committed two acts in furtherance of the conspiracy. Paragraph 21 states that the appraisal defendants acted with the knowledge that “Mark Chu was going to be using said appraisal, in his role as a mortgage broker, to serve as material inducement for obtaining monies from a mortgage lender.” This is sufficient to allow plaintiff to maintain the cause of action. The motion to strike Count One is therefore denied.
In Count Three, plaintiff alleges that Chu and Pristine’s participation in the conspiracy alleged in Count One constituted an unfair trade practice, in violation of the Connecticut Unfair Trade Practices Act, Conn. Gen. Stat. § 42a-110a, et sec. These defendants have moved to strike this count, arguing that CUTPA CT Page 5819 applies only to the entrepreneurial aspects of professional services.
Plaintiff has made no allegations of negligence against these defendants. All of the allegations against them involve intentional misconduct. The court agrees with Judge Freed’s reasoning in Advanced Financial Services v. Associated Appraisal Services, Inc., No. CV98-0580372 (J.D. of Hartford, July 23, 2001), affirmed, 79 Conn.App. 22 (2003). In a case involving substantially similar factual allegations, the court distinguished the defendants’ allegedly intentional misconduct from acts of professional negligence, to which CUTPA clearly does not apply. The motion to strike count three is also denied.
In Count Seven, plaintiff alleges that Chu and Pristine breached a fiduciary duty which they owed to the plaintiff. The court grants the motion to strike this count for the reasons set forth in Judge Satter’s decision in ABN AMRO Mortgage Group v. Pristine Mortgage, LLC, No. CV04-4005389 (J.D. of Hartford, September 8, 2005) (40 Conn. L. Rptr. 46), a case involving obviously similar facts and factual allegations.
The motion to strike Count Eight is also granted, since the court has held that Count Seven fails to state a claim upon which relief may be granted.
Defendants Leighton and Leighton Appraisal have moved to strike Counts One, Two and Nine. The court denies the motion to strike Count One (No. 111) for the reasons set forth above. The motion to strike Count Two (No, 102) is denied for the same reasons that the court denied Pristine and Chu’s Motion to Strike Count Three.
Count Nine alleges that these defendants breached a fiduciary duty to plaintiff, as set forth in Count Six, and that this breach of fiduciary duty was a CUTPA violation. These defendants have not moved to strike Count Six, probably because of Judge Satter’s decision in ABN AMRO Mortgage Group v. Pristine Mortgage, LLC, supra, in which he held that a real estate appraiser does owe a fiduciary duty to a mortgage lender in the factual circumstances alleged in that case and in this case. The motion to strike Count Nine is also denied. A breach of a fiduciary duty based on intentional misconduct if proven, would certainly be an unfair trade practice. CT Page 5820