Opinion
No. 06-5000686
March 15, 2007
MEMORANDUM OF DECISION RE MOTION TO STRIKE (NO. 113)
On March 22, 2006, the plaintiff, Ameriquest Mortgage Company, filed a complaint seeking to foreclose on a mortgage executed by the defendant, Yvonne Johnson, on August 21, 2003. The defendant filed an answer and special defense on June 16, 2006. On August 18, 2006, the defendant filed a request for leave to amend her answer and special defense which was granted by the court, Devine, J., on October 12, 2006. By way of her amended second special defense, the defendant alleges a violation of the Truth in Lending laws and regulations.
On August 1, 2006, the court, Devine, J., granted the plaintiff's motion to substitute WM Specialty Mortgage, LLC as the plaintiff based on an assignment of the subject mortgage.
On October 20, 2006, the plaintiff filed a motion to strike the defendant's second special defense on the grounds that an alleged violation of the Truth in Lending Act (TILA) is not a valid defense to a foreclosure action, and even if it were, the special defense does not set forth sufficient allegations to support the defendant's claim. The plaintiff has filed a memorandum of law in support of its motion. The defendant filed an opposition memorandum on November 9, 2006. In response to the defendant's opposition brief, the plaintiff filed a reply memorandum on December 18, 2006. The matter was heard at oral argument on January 29, 2007.
DISCUSSION
A motion to strike is the proper method to contest the legal sufficiency of any special defense. Practice Book § 10-39(a). "The purpose of a special defense is to plead facts that are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action." (Internal quotation marks omitted.) Fidelity Bank v. Krenisky, 72 Conn.App. 700, 705, 807 A.2d 968, cert. denied, 262 Conn. 915, 811 A.2d 1291 (2002). In ruling on a motion to strike a special defense, the court must accept as true the facts alleged in the special defenses and construe them in the manner most favorable to sustaining their legal sufficiency. Connecticut National Bank v. Douglas, 221 Conn. 530, 536, 606 A.2d 684 (1992).
In its motion to strike, the plaintiff argues as a preliminary matter that the defendant has failed to comply with the requirements of Practice Book § 10-3. Practice Book § 10-3(a) provides that "(w)hen any claim made in a . . . special defense . . . is grounded on a statute, the statute shall be specifically identified by its number." In particular, the plaintiff contends that the defendant has failed to cite or specifically identify by number the statute(s) upon which she relies in her second special defense.
Although Practice Book § 10-3 provides that any special defense shall specifically identify by number the statute upon which a party relies, the rule is directory and not mandatory. Steele v. Stonington, 225 Conn. 217, 221 n. 7, 622 A.2d 551 (1993). "As long as the defendant is sufficiently apprised of the nature of the action . . . the failure to comply with the directive of Practice Book § 10-3(a) will not bar recovery." (Internal quotation marks omitted.) Ramondetta v. Amenta, 97 Conn.App. 151, 162, 903 A.2d 232 (2006).
In Spears v. Garcia, 66 Conn.App. 669, 676, 785 A.2d 1181 (2001), aff'd, 263 Conn. 22, 818 A.2d 37 (2003), the plaintiffs failed to plead the protections of General Statutes § 52-557n in their complaint. Because the plaintiffs relied on that statute in their memorandum of law in opposition to the defendants' motion for summary judgment and in oral argument before the trial court, the Appellate Court concluded that the defendants were sufficiently apprised of the nature of the action. Id. Similarly, in Altfeter v. Naugatuck, 53 Conn.App. 791, 802, 732 A.2d 207 (1999), an individual defendant failed to plead the applicable statute of limitations as a special defense when he answered the amended complaint and did not identify the applicable statute in his motion for summary judgment. Nevertheless, that defendant specifically cited General Statutes § 52-576(a) as the legal basis for his motion for summary judgment in his memorandum of law in support of the motion. Id. Although the Appellate Court noted that the "better method" is to identify in the pleading the applicable statute of limitations as required by Practice Book § 10-3(a); Id., 802 n. 9; the court found that the defendant's failure to do so was harmless in light of the subsequent discussion of § 52-576(a) in his memorandum of law. Id., 802.
Conversely, in Ramondetta v. Amenta, supra, 97 Conn.App. 151, the Appellate Court found the plaintiffs' failure to identify the specific statute upon which they relied to be fatal to their claim. In Ramondetta, the plaintiffs failed to identify the applicable statute of limitations that allegedly barred the defendant's counterclaim. Id., 163. At no point from the filing of the defendant's counterclaim to the rendering of judgment by the trial court did the plaintiffs identify the specific statute. Id. The Appellate Court held that "the bare assertion that `the applicable statute of limitations' bars a particular action is inadequate to apprise the court or the opposing party sufficiently of the nature of the defense." Id., 164.
In the present case, the defendant has failed to cite or identify by number any specific statute(s) upon which she relies in her special defense, nor has she cited to any statute(s) in her opposition to the plaintiff's motion to strike. The defendant alleges in her second special defense that "said notice of right to cancel did not comply with Truth in Lending laws and regulations . . ." As noted by the plaintiff, the defendant's allegations fail to articulate whether she is relying on state or federal Truth in Lending laws and regulations as the basis for her defense. Furthermore, in her opposition to the motion to strike, the defendant asserts that her failure to cite statutory grounds "should not form the basis for a motion to strike, but rather a request to revise." However, the defendant fails to cite any supporting authority for this assertion.
The facts of the present case are distinguishable from those in Spears and Altfeter. Here, the defendant failed to specifically identify the statute(s) by number. Unlike the plaintiffs in Spears or the defendant in Altfeter, however, the defendant in the present case did not specifically cite to any Truth in Lending statute(s) in her respective memorandum of law. Therefore, the court finds that the plaintiff has not been sufficiently apprised of the nature of the second special defense. See Ramondetta v. Amenta, supra, 97 Conn.App. 151, 164.
ORDER
The plaintiff's motion to strike the defendant's special defense is hereby granted.