Justia.com Opinion Summary: Midland Funding obtained judgments against Plaintiff Susan Ballou in two cases. The small claims court entered installment payment orders pursuant to Conn. Gen. Stat. 52-356d. Defendant, the Law Offices Howard Lee Schiff, P.C., which represented Midland in small claims court, did not apply for an order of postjudgment interest in either of the two cases, and the small claims court did not issue an order of postjudgment interest in either case. Defendant thereafter sought a bank execution against Plaintiff for the judgment amounts and directed the state marshal to add postjudgment interest of ten percent to the amount of the judgments. Plaintiff commenced an action in the U.S. district court disputing the amount of the debts. At issue before the court was whether postjudgment interest accrues automatically on any unpaid balance under a judgment for which the court has entered an installment payment order. The Connecticut Supreme Court accepted certification to answer this question and held that section 52-356d(e) does not provide for the automatic accrual of postjudgment interest on all judgments in which an installment payment order has been entered by the court.
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SUSAN BALLOU v. LAW OFFICES
HOWARD LEE SCHIFF, P.C.
(SC 18639)
Rogers, C. J., and Norcott, Palmer, Zarella, McLachlan,
Eveleigh and Harper, Js.
Argued May 18, 2011—officially released April 10, 2012
Joanne S. Faulkner, for the appellant (plaintiff).
Jeanine M. Dumont, with whom were Heath A. Tiberio and, on the brief, Jill Alward and Thomas Leghorn,
pro hac vice, for the appellee (defendant).
Opinion
PALMER, J. The dispositive issue in this case, which
comes to us upon our acceptance of two certified questions from the United States District Court for the District of Connecticut pursuant to General Statutes § 51199b (d),1 is whether General Statutes § 52-356d (e)2
provides for the automatic accrual of postjudgment
interest on all judgments in which an installment payment order has been entered by the court. We answer
that question in the negative.
The record certified by the District Court contains
the following undisputed facts and procedural history.
The plaintiff, Susan Ballou, owed balances on two different consumer credit cards. Both of these debts were
purchased by Midland Funding, LLC (Midland), which
subsequently brought actions on those debts in the judicial district of New Haven, Small Claims Session (small
claims court). Midland obtained judgments against the
plaintiff in the two cases, one in the amount of $3203.11
and the second in the amount of $997.28. The small
claims court entered installment payment orders pursuant to § 52-356d requiring the plaintiff to pay $35 per
week to satisfy the first judgment and $50 per month
to satisfy the second judgment. The defendant, the Law
Offices Howard Lee Schiff, P.C., which represented Midland in small claims court, did not apply for an order
of postjudgment interest in either of the two cases, and
the small claims court did not issue such an order in
either case. The defendant sought a bank execution
against the plaintiff for the judgment amounts and
directed the marshal to add postjudgment interest of
10 percent to the amount of the judgments.
Thereafter, the plaintiff commenced an action in the
United States District Court for the District of Connecticut, alleging, inter alia, that the defendant had overstated the amount of the debts in violation of the federal
Fair Debt Collection Practices Act, 15 U.S.C. § 1692
et seq. (2006),3 by virtue of its application for a bank
execution directing the state marshal to collect postjudgment interest even though the judgments that the
small claims court rendered did not contain an award of
such interest. The defendant filed a motion for summary
judgment, claiming that it had not overstated the
amount of the debts because, pursuant to § 52-356d (e),
postjudgment interest accrues automatically at a rate
of 10 percent on any unpaid balance under a judgment
for which the court has entered an installment payment
order. The plaintiff also filed a motion for summary
judgment, claiming that, under General Statutes § 373a (a),4 postjudgment interest is not automatic but,
rather, is awarded in the discretion of the court upon
application of the party seeking such interest.5
The District Court subsequently determined that the
proper resolution of the parties’ claims turns on the
correct interpretation of §§ 52-356d (e) and 37-3a (a).
The District Court further observed that the question
of law presented by the parties’ motions involves a
matter of public interest for which there is no controlling appellate decision, constitutional provision or state
statute.6 Accordingly, the District Court certified the
following two questions of law to this court, which we
accepted: ‘‘(1) Does . . . § 52-356d (e) provide for the
automatic accrual of [postjudgment] interest on all judgments in which an installment payment order has been
entered by the court? (2) If [the first] question . . . is
answered in the affirmative, what rate of [postjudgment] interest applies?’’ Our negative answer to the first
question makes it unnecessary for us to consider the
second question.
The statutory language at issue in the present case
is set forth in General Statutes § 52-356d (e), which
provides that ‘‘[i]nterest on a money judgment shall
continue to accrue under any installment payment order
on such portion of the judgment as remains unpaid.’’
In addition, § 37-3a (a) provides that a court may, in its
discretion, award interest of up to 10 percent on a debt
that has been reduced to a judgment but which remains
unpaid. See footnote 4 of this opinion. The plaintiff
maintains that there is nothing in § 52-356d to indicate
that interest automatically accrues on a debt that is
owed on a money judgment for which the court has
entered an installment payment order. In the plaintiff’s
view, § 52-356d (e) merely provides that postjudgment
interest that already has been awarded on a money
judgment in accordance with § 37-3a continues to
accrue on any unpaid portion of the judgment after
the court has entered an installment payment order
pursuant to § 52-356d (a). The defendant asserts that
§ 52-356d (e) impliedly provides for the automatic
accrual of postjudgment interest on the unpaid portion
of a judgment when installment payments have been
ordered by the court. According to the defendant, § 52356d (e), in providing for the continued accrual of postjudgment interest until the debt has been paid, necessarily also requires, as a threshold matter, that such interest
shall accrue in all cases in which the court has entered
an installment payment order. In other words, under
the defendant’s interpretation of § 52-356d (e), the legislature, in mandating that interest on a money judgment
‘‘shall continue to accrue’’ under an installment payment order, ‘‘merely [was] emphas[izing] that postjudgment interest accrues until the payment of the judgment
amount.’’ We agree with the plaintiff’s construction of
§ 52-356d (e).7
The issue of statutory construction that this case
raises recently was addressed by the Appellate Court
in Discover Bank v. Mayer, 127 Conn. App. 813, 17
A.3d 80 (2011), in which the court rejected a claim that
postjudgment interest is mandatory under § 52-356d (e).
See id., 818–19. In Mayer, the defendant, Rudolph
Mayer, had entered into an agreement with the plaintiff,
Discover Bank, for a credit card account. Id., 814. Mayer
incurred a substantial balance on the account but failed
to make any payments, and Discover Bank commenced
a collection action against Mayer. Id. In addition to
money damages, Discover Bank sought, inter alia, postjudgment interest under § 37-3a. Id., 815. The trial court
denied Discover Bank’s request for postjudgment interest, and Discover Bank appealed from that portion of
the trial court’s judgment to the Appellate Court, claiming that the plain language of § 52-356d (e) ‘‘requires
that interest accrue automatically on any unpaid portion
of a judgment when installment payments have been
ordered by the court.’’ Id., 814. The Appellate Court
rejected Discover Bank’s claim, reasoning as follows:
‘‘Section 52-356d (e) provides that ‘[i]nterest on a money
judgment shall continue to accrue under any installment
payment order on such portion of the judgment as
remains unpaid.’ [Discover Bank] contends that the legislature’s use of the word ‘shall’ makes the accrual of
interest in installment payment order cases mandatory.
[Discover Bank], however, ignores that the word ‘shall’
is juxtaposed with the word ‘continue,’ and not with
the word ‘accrue.’ [Discover Bank’s] reading would
have the effect of rendering the word ‘continue’ inoperative. The word ‘continue’ means to ‘keep up or maintain,
especially without interruption, a particular condition,
course, or series of actions.’ [Webster’s Third New International Dictionary]. The definition of the word ‘continue’ reveals that it presupposes, and relates in its
operation, to an existing thing or condition, which in
the case of § 52-356d (e), is the existence of an award
of interest on a money judgment.’’ Discover Bank v.
Mayer, supra, 817.
The Appellate Court also explained the relationship
between §§ 52-356d (e) and 37-3a (a). ‘‘Section 52-356d
(e) is located within chapter 906 of the General Statutes,
which is titled ‘Postjudgment Procedures.’ In General
Statutes § 52-350a (15), ‘postjudgment procedure is
defined in relevant part as ‘any procedure commenced
after rendition of a money judgment . . . .’ ‘Money
judgment’ is defined in relevant part as ‘a judgment,
order or decree of the court calling in whole or in part
for the payment of a sum of money . . . . General Statutes § 52-350a (13). Section 52-356d (a) provides in relevant part that ‘[w]hen a judgment is rendered against
a natural person, the judgment creditor or judgment
debtor may move the court for an order for installment
payments in accordance with a money judgment. . . .’
If a judgment debtor defaults on an installment payment
order, the judgment creditor may apply for a wage execution. General Statutes § 52-356d (d). A ‘money judgment may be enforced, by execution . . . to the
amount of the money judgment with (1) all statutory
costs and fees as provided by the general statutes, (2)
interest as provided by chapter 673 on the money judg-
ment and on the costs incurred in obtaining the judgment, and (3) any attorney’s fees allowed pursuant to
section 52-400c.’ . . . General Statutes § 52-350f. The
relevant statute in chapter 673 is § 37-3a. Section 37-3a
(a) provides in relevant part: ‘‘[I]nterest at the rate of
ten per cent a year, and no more, may be recovered
and allowed in civil actions . . . as damages for the
detention of money after it becomes payable.’’ (Emphasis in original.) Discover Bank v. Mayer, supra, 127
Conn. App. 817–18.
‘‘It is apparent, therefore, that [for purposes of Discover Bank’s claim under § 37-3a] the interest referred
to in § 52-356d (e) is derived from an award of interest
pursuant to § 37-3a. . . . ‘[A]n award of postjudgment
interest is authorized by § 37-3a’ . . . and ‘[a] decision
to deny or grant postjudgment interest is primarily an
equitable determination and a matter lying within the
discretion of the trial court.’ . . . Contrary to [Discover
Bank’s] contention, this exercise of discretion is not, in
any way, circumscribed in cases [in which] installment
payments have been ordered by the court. The plain
language of § 52-356d (e), as well as its relationship
with other statutes, makes clear that a judgment creditor may request postjudgment interest to accrue on a
money judgment pursuant to § 37-3a, and that such
interest, if awarded, shall continue to accrue on the
unpaid portion of a money judgment in cases [in which]
installment payments have been ordered by the court.’’
(Citations omitted.) Id., 818–19. We fully agree with this
analysis, which is applicable to the present case.8
In support of its contrary position, the defendant
contends that the word ‘‘continue,’’ as used in § 52356d (e), refers to the continued or ongoing accrual of
interest until all of the required installment payments
have been made and the judgment finally has been
satisfied. Under this interpretation of § 52-356d (e), the
legislature necessarily intended for postjudgment interest to be awarded when the court enters an installment
payment order because such interest could not ‘‘continue’’ to accrue under § 52-356d (e) unless that interest
already had been awarded by the court in connection
with the installment payment order. The defendant further claims that postjudgment interest is mandatory
under § 52-356d (e) because that provision states that
interest ‘‘shall continue to accrue’’ on the portion of
the judgment that remains unpaid. (Emphasis added.)
Although acknowledging that § 52-356d is silent with
respect to the rate of interest, the defendant maintains
that that rate is presumptively 10 percent, which is the
maximum rate allowed under § 37-3a. See footnote 4
of this opinion.
At the very least, the defendant’s construction is
strained because it is predicated on a reading of § 52356d (e) that attributes to the legislature an intent to
provide for a mandatory award of postjudgment interest
only indirectly or impliedly. It seems highly unlikely
that the legislature would have established such a mandatory requirement in terms so indefinite and indirect.
We also are dubious about the interpretation that the
defendant urges because there is nothing in the language of § 52-356d (e) to suggest a presumptive rate of
interest, let alone a rate of interest of 10 percent. Even
if we were to assume, however, that the defendant’s
interpretation of § 52-356d (e) is a plausible one, the
construction that the plaintiff advances—a construction that is based on the plain import of the statutory
language—is far more consonant with that language
and, therefore, represents the more reasonable construction.
Our conclusion is buttressed by several other compelling considerations. First, § 52-356d (e) provides for
‘‘[i]nterest on a money judgment,’’ not interest on an
installment payment order. Each of these terms has a
distinct meaning for purposes of the relevant statutory
scheme, which, as we noted previously, is set forth in
chapter 906 of the General Statutes. See General Statutes § 52-350a (9) and (13) (respectively defining terms
‘‘installment payment order’’ and ‘‘money judgment’’).9
Although, as a practical matter, a money judgment and
an installment payment order may be rendered at the
same time, the statutory scheme presumes a judgment
preceding an installment payment order. See General
Statutes § 52-350a (15) (defining ‘‘ ‘[p]ostjudgment procedure’ ’’ as ‘‘any procedure commenced after rendition of a money judgment, seeking or otherwise
involving a discovery procedure, a placing of a lien on
property, a modification or discharge of a lien, a property execution under section 52-356a, a turnover order,
an installment payment order, a wage execution, a
modification of a wage execution, a compliance order,
a protective order or a determination of exemption
rights’’ [emphasis added]). It is apparent, therefore, that
§ 52-356d (e) addresses the situation in which the court
already has awarded interest on the money judgment
in the exercise of its discretion under § 37-3a (a), and,
thereafter, either the judgment creditor or the judgment
debtor seeks and obtains an installment payment order
from the court. When that occurs, § 52-356d (e) simply
provides that the interest awarded on the money judgment prior to the entry of the installment payment order
continues to accrue on the remaining balance on the
judgment until all installment payments have been
made. In light of this temporal relationship between
the money judgment and the installment payment order,
the reference in § 52-356d (e) to the continuation of
the accrual of interest pertains to a preexisting order
of interest on the money judgment, not to the imposition
of interest triggered by the entry of an installment payment order.
In addition, when the legislature chooses to provide
that interest shall be awarded as of right, it invariably
uses language that expressly mandates the assessment
of such interest. See, e.g., General Statutes § 5-158h (b)
(‘‘installments shall include interest at five per cent a
year’’); General Statutes § 12-655 (b) (‘‘interest shall
accrue . . . at the rate of one per cent per month from
the due date of such tax to the date of payment’’);
General Statutes § 17b-320 (c) (‘‘interest at the rate of
one per cent per month or fraction thereof shall accrue
on such user fee from the due date of such user fee
until the date of payment’’); General Statutes § 25-93
(‘‘[delinquent assessments] shall be subject to interest
from the due date at the [rate provided by statute]’’). In
view of the fact that an award of postjudgment interest
ordinarily is a matter that falls within the sound discretion of the trial court; see General Statutes § 37-3a (a);
we are disinclined to presume that the legislature
intended to require an award of such interest unless
that result is dictated either by the express statutory
language or by necessary implication from that language. No such language appears in § 52-356d (e).
Our conclusion that postjudgment interest is not
automatic under § 52-356d (e) also is bolstered by the
fact that § 52-356d (e) does not specify an interest rate
that would be applicable when the court has not set a
rate of interest. In other statutes that authorize the
imposition of interest, either as a matter of right or as
a matter of discretion, the legislature has specified a
rate of interest, has specified a means by which to
determine a rate of interest or has incorporated by
reference some other statute that establishes a rate of
interest. Indeed, several statutes specifically incorporate by reference § 37-3a. See, e.g., General Statutes § 461 (a) (involving actions against state on highway and
public works contracts); General Statutes § 12-159a (a)
(involving court orders in actions contesting validity of
tax collector’s deed); General Statutes § 31-300 (involving awards in workers’ compensation cases); General
Statutes § 36a-50 (b) (involving enforcement actions by
banking commissioner).
Many other statutes authorize installment payments,
and interest routinely is assessed under those provisions. All of those statutes, however, have two significant features that distinguish them from § 52-356d: the
legislature expressly mandates the assessment of interest, and a rate of interest is specified. See, e.g., General
Statutes § 5-158h (b) (‘‘If [an] employee is financially
unable to make [a] lump sum payment, the employee
and the Retirement Commission may enter into a contract for payment of such amount in not more than one
hundred thirty-one equal biweekly installments. Such
installments shall include interest at five per cent a
year, and the transfer to part A [of the retirement system] shall not be effective until all such installments
have been paid.’’ [Emphasis added.]); General Statutes
§ 5-175b (‘‘If [an] employee is financially unable to complete the payment of the required contributions for [ser-
vice] credit prior to such date, the Retirement Commission and the employee may enter into a contract
for payment of such amount in not more than fifty-two
equal biweekly installments. Such installments shall
include interest at five per cent per year, and such
service credit shall not be granted unless payment of
installments is completed.’’ [Emphasis added.]); General Statutes § 12-146 (‘‘If any tax due in a single installment or if any installment of any tax due in two or
more installments is not paid in full . . . [by a specified
date] on which it became due and payable, the whole
or such part of such installment as is unpaid shall thereupon be delinquent and shall be subject to interest from
the due date of such delinquent installment. Except for
unpaid real estate taxes the collection of which was,
or is, deferred under the provisions of section 12-174,
and any predecessor and successor thereto, which
unpaid real estate taxes continue to be subject to the
provisions of such deferred collection statutes, the
delinquent portion of the principal of any tax shall be
subject to interest at the rate of eighteen per cent per
annum from the time when it because due and payable
until the same is paid . . . .’’ [Emphasis added.]); General Statutes § 12-376b (a) (‘‘[t]he amount of tax paid
in . . . installments shall bear interest in relation to
the unpaid portion of [the succession and transfer] tax
from the expiration of six months after the death of
the decedent until such tax is paid at the rate of one
per cent per month or fraction thereof’’ [emphasis
added]); see also General Statutes § 25-93 (‘‘[a]ny
assessment against benefited property not paid within
thirty days of the due date shall thereupon be delinquent
and shall be subject to interest from the due date at
the same interest rate and in the same manner as
provided by the general statutes in the case of delinquent taxes, provided, in the case of an assessment
payable in installments, interest shall be computed on
the entire unpaid balance of such assessment from the
due date of the last installment which was paid, or
from the due date of the assessment if no previous
installment has been paid’’ [emphasis added]). The
absence of those features from § 52-356d (e) is strong
evidence that the legislature did not intend to mandate
interest under that statute. Indeed, it is highly unlikely
that the legislature would intend for interest to accrue
automatically without identifying an interest rate. Cf.
General Statutes § 37-3c (providing that judgments in
condemnation cases ‘‘shall include interest at a rate
that is reasonable and just’’ and that, ‘‘[i]f a court does
not set a rate of interest on the amount of compensation
awarded, the interest shall be calculated [on the basis
of the] . . . one-year constant maturity yield of United
States Treasury securities . . . [and] shall accrue from
the date of taking to the date of payment’’).
The defendant makes several arguments in support
of its interpretation of § 52-356d (e), none of which is
persuasive. The defendant contends that certain legislative history pertaining to § 37-3a reflects a legislative
awareness that § 52-356d (e) provides for a mandatory
award of postjudgment interest. In particular, the defendant refers to the 2003 testimony of Grace Rollins, a
consumer advocate, before the judiciary and public
health committees, concerning proposed amendments
to § 37-3a. See Conn. Joint Standing Committee Hearings, Public Health, Pt. 2, 2003 Sess., pp. 495–97; Conn.
Joint Standing Committee Hearings, Judiciary, Pt. 6,
2003 Sess., pp. 1832–33. According to the defendant,
Rollins’ testimony reflects her belief that postjudgment
interest is mandatory under § 52-356d (e). The defendant further asserts that, because no legislator took
issue with Rollins’ understanding of the import of § 52356d (e), we must presume that those legislators shared
that understanding. Although Rollins’ view of the precise scope of § 52-356d (e) is by no means clear from
her testimony, her view is wholly irrelevant to our construction of that provision because, contrary to the
defendant’s assertion, no inference possibly can be
drawn from the mere fact that one or more legislators
who may have been present at the committee hearings
greeted Rollins’ testimony with silence.
The defendant further asserts that § 52-356d (e) must
be interpreted to provide for the automatic accrual of
interest because a contrary interpretation will result in
some judgment creditors being unable to recover the
full amount of their judgments for a considerable period
of time without any compensation for the economic
loss associated with that delay. The defendant contends
that this is an untenable result that the legislature could
not have intended. This argument also lacks merit. As
we previously explained, the legislature, by virtue of
its enactment of § 37-3a, has afforded trial courts the
discretion to award postjudgment interest or to deny
it. Thus, the legislature necessarily is aware that a judgment creditor will not always receive interest on the
unpaid portion of a money judgment. Moreover,
although the defendant asserts that postjudgment interest is more important in installment payment cases
because creditors are more likely to experience a delay
in collecting on the judgment, there is nothing in § 373a (a) or § 52-356d (e) that prevents a trial court from
awarding postjudgment interest when circumstances
so warrant, and the defendant candidly acknowledges
as much. Merely because the legislature has elected
to require that judgment creditors seek postjudgment
interest in cases involving installment payment orders
does not mean that courts will not award such interest
when it is appropriate to do so. Indeed, it bears noting
that the defendant never sought such interest in the
present case.
The defendant also claims that this court should construe § 52-356d (e) to mandate the automatic accrual of
interest when a trial court orders installment payments
because other jurisdictions have enacted statutes to
achieve that result. As we previously explained, however, the legislature expressly has provided that, under
§ 37-3a (a), awards of postjudgment interest ordinarily
are discretionary, and § 52-356d (e), fairly construed,
contains no exception to that general rule. But cf. General Statutes § 37-3b (a) (postjudgment interest mandatory in cases involving negligence). The fact that other
jurisdictions have enacted statutes pursuant to which
postjudgment interest accrues automatically at the
same rate for all judgments sheds no light on the intention of our legislature, which has charted a different
course.
The defendant next asserts that § 52-356d (e) must
be construed to impose interest automatically on installment payments because, ‘‘[in the absence of] the payment of interest, the judgment debtor has no incentive
to pay off the judgment . . . . In fact, there are no
other consequences to a judgment debtor for failure to
pay a judgment.’’ (Citations omitted.) The defendant is
incorrect. General Statutes § 52-356d (d) specifically
provides that, upon ‘‘the judgment debtor’s default on
payments . . . the judgment creditor may apply for a
wage execution pursuant to section 52-361a.’’ Indeed,
after the plaintiff in the present case failed to make
several installment payments, the defendant secured a
bank execution for the entire amount of the judgments.
Finally, the defendant claims that Sears, Roebuck &
Co. v. Board of Tax Review, 241 Conn. 749, 699 A.2d
81 (1997) (Sears), and Suffield Development Associates
Ltd. Partnership v. National Loan Investors, L.P., 97
Conn. App. 541, 905 A.2d 1214, cert. denied, 280 Conn.
942, 943, 912 A.2d 479 (2006) (Suffield Development),
support its contention that § 52-356d (e) provides for
mandatory postjudgment interest at a rate of 10 percent
in cases in which an installment payment order has
been entered. Contrary to the defendant’s claim, neither
case bears on the proper interpretation of § 52-356d
(e). In Sears, this court concluded, inter alia, that § 373a (a) provides for a maximum rate of interest of 10
percent, with discretion afforded to the trial court to
order interest at a lesser rate. Sears, Roebuck & Co. v.
Board of Tax Review, supra, 765–66. In Suffield Development, the Appellate Court merely explained that,
under § 37-3a (a), an interest rate of less than 10 percent
is presumptively valid, and therefore will be upheld,
unless the party challenging the rate set by the court
can demonstrate that it represents an abuse of discretion. See Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., supra, 568–71.
It is apparent that these cases are irrelevant to our
resolution of the present case.10
The answer to the first certified question is: No.11
No costs shall be taxed in this court to either party.
In this opinion ROGERS, C. J., and NORCOTT, EVELEIGH and HARPER, Js., concurred.
1
General Statutes § 51-199b (d) provides in relevant part: ‘‘The Supreme
Court may answer a question of law certified to it by a court of the United
States . . . if the answer may be determinative of an issue in pending
litigation in the certifying court and if there is no controlling appellate
decision, constitutional provision or statute of this state.’’
2
General Statutes § 52-356d provides in relevant part: ‘‘(a) When a judgment is rendered against a natural person, the judgment creditor or judgment
debtor may move the court for an order for installment payments in accordance with a money judgment. After hearing and consideration of the judgment debtor’s financial circumstances, the court may order installment
payments reasonably calculated to facilitate payment of the judgment.
***
‘‘(c) Notwithstanding the hearing requirement of subsection (a) of this
section, on motion of the judgment creditor for an order of nominal payments, the court shall issue ex parte, without hearing, an order for nominal
installment payments. . . . Such an order for nominal payments may be
modified on motion of either party . . . .
‘‘(d) An installment payment order shall not be enforced by contempt
proceedings, but on the judgment debtor’s default on payments thereon,
the judgment creditor may apply for a wage execution pursuant to section
52-361a.
‘‘(e) Interest on a money judgment shall continue to accrue under any
installment payment order on such portion of the judgment as remains
unpaid.
‘‘(f) On motion of either party and after notice and hearing or pursuant
to a stipulation, the court may make such modification of an installment
payment order as is reasonable.’’
3
Under the Fair Debt Collection Practices Act, a debt collector is prohibited from engaging in unfair practices, including ‘‘[t]he false representation
of . . . the character, amount, or legal status of any debt’’; 15 U.S.C. § 1692e
(2) (A) (2006); and ‘‘[t]he 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.’’ 15 U.S.C. § 1692f (1) (2006).
4
General Statutes § 37-3a (a) provides in relevant part: ‘‘Except as provided in sections 37-3b, 37-3c and 52-192a, interest at the rate of ten per
cent a year, and no more, may be recovered and allowed in civil actions
. . . including actions to recover money loaned at a greater rate, as damages
for the detention of money after it becomes payable. . . .’’
5
As the District Court noted in its amended certification order, in the
Second Circuit, a mistake of law is not a defense under the Fair Debt
Collection Practices Act. Ballou v. Law Offices Howard Lee Schiff, P.C.,
713 F. Sup. 2d 79, 82 (D Conn. 2010); see, e.g., Pipiles v. Credit Bureau of
Lockport, Inc., 886 F.2d 22, 27 (2d Cir. 1989).
6
At the time of the District Court’s amended certification order, there
was no controlling appellate decision on the issue of whether postjudgment
interest automatically accrues under § 52-356d (e). As we discuss more fully
hereinafter, following the District Court’s amended certification order but
prior to oral argument before this court, the Appellate Court issued its
decision in Discover Bank v. Mayer, 127 Conn. App. 813, 819, 17 A.3d 80
(2011), in which the court held that postjudgment interest is discretionary
for purposes of an installment payment order entered pursuant to § 52356d (a).
7
We note that whether § 52-356d (e) provides for the automatic accrual
of postjudgment interest presents a question of statutory interpretation.
‘‘When construing a statute, [o]ur fundamental objective is to ascertain and
give effect to the apparent intent of the legislature. . . . In other words,
we seek to determine, in a reasoned manner, the meaning of the statutory
language as applied to the facts of [the] case . . . . In seeking to determine
that meaning, General Statutes § 1-2z directs us first to consider the text
of the statute itself and its relationship to other statutes. If, after examining
such text and considering such relationship, the meaning of such text is
plain and unambiguous and does not yield absurd or unworkable results,
extratextual evidence of the meaning of the statute shall not be considered.
. . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its
enactment, to the legislative policy it was designed to implement, and to
its relationship to existing legislation and common law principles governing
the same general subject matter . . . .’’ (Internal quotation marks omitted.)
Dept. of Public Safety v. Freedom of Information Commission, 298 Conn.
703, 720–21, 6 A.3d 763 (2010).
8
The concurrence claims that our reliance on Discover Bank is misplaced
because that case stands for the proposition that interest on an installment
payment order may be awarded under § 37-3a only, and not under General
Statutes § 37-1, which, in contrast to § 37-3a, provides for a mandatory
award of interest. See General Statutes § 37-1 (a) (‘‘[t]he compensation for
forbearance of property loaned at a fixed valuation, or for money, shall, in
the absence of an agreement to the contrary, be at the rate of eight per
cent a year’’). The concurrence misreads Discover Bank, which speaks in
terms of § 37-3a, because the sole issue in that case, as in the present case,
concerned the interrelationship between §§ 52-356d (e) and 37-3a (a). See
Discover Bank v. Mayer, supra, 127 Conn. App. 814–15. There is nothing in
Discover Bank to suggest that § 37-1 is inapplicable generally to installment
payment orders because § 37-1 simply was not implicated in that case.
Indeed, the court’s decision in Discover Bank contains no reference to § 371. Thus, we agree with the reasoning and holding of Discover Bank because
the court in that case correctly analyzed the statutory provisions at issue,
namely, §§ 52-356d (e) and 37-3a (a), in concluding that interest is discretionary under those specific provisions. See id., 818–19.
9
General Statutes § 52-350a provides in relevant part: ‘‘For the purposes
of this chapter and section 49-51, unless the context otherwise requires:
***
‘‘(9) ‘Installment payment order’ means the fixing by the court of a sum
to be paid periodically by the judgment debtor until satisfaction of a
money judgment.
***
‘‘(13) ‘Money judgment’ means a judgment, order or decree of the court
calling in whole or in part for the payment of a sum of money, other
than a family support judgment. Money judgment includes any such money
judgment of a small claims session of the Superior Court . . . .’’ (Emphasis added.)
10
The concurrence asserts that the present case necessarily implicates
General Statutes § 37-1; see footnote 8 of this opinion; and therefore maintains that we have ‘‘not fully address[ed]’’ the certified questions in the
present case because we have not addressed § 37-1. For this reason, and
in order to ‘‘clarify that the majority opinion should not be read as altering
this court’s precedent concerning the application of § 37-1, which allows
for parties to agree to nonusurious rates of postjudgment interest,’’ the
concurrence discusses § 37-1 at length.
Because § 37-1 has no bearing on the present case, it is inappropriate to
address it. As the concurrence concedes, at no time during the litigation of
this matter, either in the District Court or in this court, has the defendant
ever argued that § 37-1 supports its claim of entitlement to postjudgment
interest under the facts of this case. Indeed, the defendant expressly alleged,
as an affirmative defense to the plaintiff’s claim under the federal Fair Debt
Collection Practices Act, that, at all relevant times, it ‘‘has relied [on] § 52356d (e) as authority for the imposition of postjudgment interest against
a debtor who has made payments on the judgment amount under an installment payment order . . . .’’ (Emphasis added.) Thus, the defendant has
elected to defend against the plaintiff’s action under the Fair Debt Collection
Practices Act, both as a matter of fact and as a matter of law, based solely
and exclusively on its purported right to interest under § 52-356d (e), with
the amount of interest to be governed by § 37-3a (a). In fact, the clarity of
the defendant’s position is reflected in the District Court’s explanation for
seeking certification. In its amended certification order, the District Court
stated that it is ‘‘clear . . . that this case turn[s] on an important undecided
question of state law’’ that involves the interpretation of ‘‘§ 37-3a (a)’’ and
‘‘§ 52-356d.’’ Ballou v. Law Offices Howard Lee Schiff, P.C., 713 F. Sup. 2d
79, 80–81 (D Conn. 2010). Consistent with its claim concerning the applicability of § 52-356d (e) only, the defendant has not briefed the issue of how
§ 37-1 is relevant to the present case, and, consequently, the defendant has
waived any claim that it conceivably might have raised under § 37-1. See,
e.g., State v. Saucier, 283 Conn. 207, 223, 926 A.2d 633 (2007) (claim that
has not been briefed generally is considered abandoned). Moreover, the
defendant is a law firm specializing in creditors’ rights and collection law,
and we cannot imagine that a party so sophisticated in the area of law
involved in this appeal would inadvertently fail to identify § 37-1 as a basis
for obtaining postjudgment interest. On the contrary, we must presume
that the defendant’s failure even to mention § 37-1 reflects the defendant’s
considered view that § 37-1 provides no support for its contention that it
did not violate the provisions of the Fair Debt Collection Practices Act—a
presumption that is confirmed by the complete absence of any facts in the
record to support a claim under § 37-1, such as an agreement by the parties
concerning interest. In addition, because the parties have not briefed the
issue of the possible applicability of § 37-1, it would be improper for us to
address that question, at least without affording the parties an opportunity
to brief it. See, e.g., Sequenzia v. Guerrieri Masonry, Inc., 298 Conn. 816,
821, 9 A.3d 322 (2010) (‘‘We long have held that, in the absence of a question
relating to subject matter jurisdiction, the [reviewing] [c]ourt may not reach
out and decide a case before it on a basis that the parties never have raised
or briefed. . . . To do otherwise would deprive the parties of an opportunity
to present arguments regarding those issues.’’ [Internal quotation marks
omitted.]).
Furthermore, because we do not address the applicability of § 37-1, we
do not understand the asserted need of the concurrence to address § 37-1
for the purpose of ‘‘clarify[ing]’’ that the majority opinion ‘‘should not be
read as altering this court’s precedent concerning the application of § 37-1
. . . .’’ We do not see how our opinion possibly could be construed as
altering this court’s jurisprudence concerning § 37-1 in view of the fact that
we expressly decline to address that provision.
Finally, it is by no means clear that an extension of credit pursuant to a
credit card agreement represents the kind of loan agreement that falls within
the purview of § 37-1. Indeed, the concurrence does not cite any Connecticut
case that so holds. Because the present case does not implicate § 37-1, there
simply is no reason to address that unresolved, and potentially thorny, issue
of first impression.
In sum, we would not hesitate to exercise our authority to expand the
certified question if we believed that doing so would assist the District Court
in its resolution of the matter before it. For the foregoing reasons, however,
we conclude that an expansion of the certified questions, as the concurrence
urges, is inappropriate in this instance, both because it would serve no
useful purpose and because there are compelling countervailing reasons
not to do so.
11
Because we answer the first certified question in the negative, we need
not answer the second certified question.
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