U.S. Bank National Association as Trustee v. Toni Ascenzia et al

Superior Court at New Haven No. CV-08-5022527Memorandum Filed July 30, 2009

ABRAMS, JAMES W., J.

This is an action seeking foreclosure of a mortgage in which defendants have raisednumerous special defenses. By revised Motion dated March 27. 2009. plaintiff seeks to strike defendants

Thirdthrough Fourteenth Special Defenses. Defendants filed an Objection dated April 8. 2009 and the parties presentedoral argument before the court on May 4. 2009.

I. Motion to Strike Standards in Foreclosure Actions

“A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factualfindings by the trial court.”

Bernhard-Thomas Building Systems, LLC v. Dunican,

286 Conn. 548. 552-53 (2008).?The allegations of the pleading involved are entitled to the same favorable construction a trier would be required togive in admitting evidence under them and if the facts provable under its allegations would support a defense or acause of action, the motion to strike must fail.”

Mingachos v. CBS. Inc., 196

Conn. 91, 108-09 (1985).“[A] foreclosure action constitutes an equitable proceeding… In an equitable proceeding, the mal court mayexamine all relevant factors to ensure that complete justice is done… The determination of what equity requires in a particular case, the balancing of the equities, is a matter for the discretion of the trial court ... Historically, defensesto a foreclosure action have been limited to payment, discharge, release or satisfaction ... or, if there had never beena valid lien... The purpose of a special defense is to plead facts that are consistent with the allegations of thecomplaint but demonstrate, nonetheless, that the plaintiff has no cause of action… A valid special defense at law to aforeclosure proceeding must be legally sufficient and address the making, validity or enforcement of the mortgage,the note or both… Where the plaintiff’s conduct is inequitable, a court may withhold foreclosure on equitableconsiderations and principles… Furthemore, if the mortgagor is prevented by accident, mistake or fraud, fromfulfilling a condition of the mortgage, foreclosure cannot be had…" (Citations omitted; internal quotation marksomitted.)

LaSalle National Bank v. Shook,

67 Conn.App. 93, 96-97 (2001).Based on the foregoing, the court finds that all of defendants

Special Defenses relate to alleged inequitable behavior surrounding the mortgage transaction and, as a result, are not susceptible to a motion to strike solely on the basis that they do not concern the payment, discharge, release, satisfaction or invalidity of the mortgage at issue.

II. Special Defenses That Set Forth Legal Conclusions

Plaintiff argues that because many of the defendant's special defenses, specifically the Third, Fourth, Fifth,Sixth and Seventh Special Defenses, state legal conclusions unaccompanied by any facts specific to the dispute atissue, they are legally insufficient and should be stricken. Unfortunately, there is no clear appellate authority on theissue of whether a bald legal conclusion constitutes a legally sufficient special defense. To complicate matters

further, there has long been a split of authority on this issue at the Superior Court level. See,

Cluney v. Regional School District No. 13

, Judicial District of Middlesex at Middletown, Docket No. 99-0089468 (Gordon. J., June 19,2000).The court concludes, however, that the better reasoned Superior Court cases support the argument that therelevant Practice Book language requires, at a minimum, at least some recital of facts specific to the case at issue: “'Each pleading shall contain a plain and concise statement of the material facts on which the pleader relies,” PracticeBook §10-1. ‘Facts that are consistent with such statements but show, notwithstanding. that the plaintiff has nocause of action, must be specifically alleged: Practice Book §10-50. ‘The fundamental purpose of a special defense,like other pleadings, is to apprise the court and opposing counsel of the issues to be tried, so that the basic issues arenot concealed until the trial is underway.’

Bennett v. Automobile Insurance Co. of Hartford,

230 Conn. 795. 802(1994).”

Id,

See. also.

SNET Informa

tion

Services, Inc. v. A Premier Limousine Service, Inc.,

Judicial District of New Haven at New Haven, Docket No. CV 07-5015163 (Cosgrove. J., August 13. 2008): “‘The brief review of thePractice Book sections directed toward the filing of answers or special defenses leads the court to the conclusion thatwhen a party files a special defense it must identify the material facts on which the pleader relies.’ Practice Book §10-1.”Based on the foregoing, the court finds that the total absence of any factual allegations specific to this dispute indefendants' Third Special Defense renders it legally insufficient and plaintiff’s Motion to Strike the Third SpecialDefense is hereby granted. As relates to defendants' Fourth. Fifth. Sixth and Seventh Special Defenses, the courtfinds that each contains a sufficient recitation of facts specific to this dispute and plaintiffs Motion to Strikedefendants' Fourth. Fifth. Sixth and Seventh Special Defenses is hereby denied.

III. CUTPA Special Defenses

Plaintiff also argues that the Eighth. Ninth. Tenth and Fourteenth Special Defenses, which assert violations of the Connecticut Unfair Trade Practices Act (“CUTPA”), Connecticut General Statutes §42-110a et seq., are legallyinsufficient because they are more properly brought as counterclaims. The court acknowledges a split of authorityon this issue at the Superior Court level, but agrees that since CUTPA claims by their very nature constitute claimsfor damages, they are properly brought as counterclaims rather than special defenses. As plaintiffs counseleloquently stated at oral argument, “CUTPA is a sword rather than a shield.” See.

GE Capital Mortgage v. Klett,

Judicial District of Hartford-New Britain at Hartford, Docket No. CV 95-0552540 (February 21, 1996, Satter,J.T.R.) As a result, plaintiff’s Motion to Strike defendants’ Eighth, Ninth, Tenth and Fourteenth Special Defenses ishereby granted.

IV Special Defense Alleging Breach of Implied Covenant of

Good

Faith

and

Fair Dealing

Defendants’ Eleventh Special Defense alleges that

the mortgage transaction breached an implied covenant

of good faith and fair dealing. While it is practically

axiomatic that such a defense is not available in

a foreclosureaction, defendants point to the recent

Superior Court case of

Robinson v. Robinson,