Opinion
No. CV 07 5002929
February 5, 2008
MEMORANDUM OF DECISION RE MOTION TO STRIKE #121
This is an action to foreclose a judgment lien. The plaintiff, Lienfactors, LLC, filed its complaint against the defendant, Frank Crandall, on February 28, 2007. The defendant filed his answer and special defenses on August 7, 2007. On August 30, 2007, the plaintiff filed a motion to strike the defendant's special defenses on the grounds that special defenses are legally insufficient because they fail to show that the plaintiff has no cause of action and that the plaintiff failed to plead any facts in his special defenses. On October 9, 2007, the defendant filed a memorandum of law in opposition.
In its complaint, the plaintiff alleges, inter alia, the following facts. On December 21, 2006, John Nazzaro obtained a judgment in his favor against the defendant in the amount of $45,403.30 including costs and interest. On January 9, 2007, Nazzaro filed a judgment lien on the Waterford land records against the plaintiff's property located at 7 David Street in Waterford. On January 24, 2007, Nazzaro assigned all of his rights, title and interest in the judgment and the lien to the plaintiff. The judgment remains unpaid and there is presently due to the plaintiff the sum of $46,831.45 plus interest, reasonable attorneys fees and costs for the prosecution of this action.
The defendant asserts the following special defenses: (1) collateral estoppel; (2) res judicata; (3) waiver; (4) estoppel and equitable estoppel; (5) payment and/or continuing payment of the underlying judgment pursuant to the court's order issued in Nazzaro v. Crandall, Superior Court, judicial district of New London, Docket No. CV 06 5001717; (6) lack of subject matter jurisdiction; (7) unclean hands; (8) the action is barred by the applicable provisions of General Statutes and Practice Book insofar as an order of weekly payment was entered by this court on December 21, 2006, in the matter of Nazzaro v. Crandall, id., and the defendant fully complied with that order; (9) the action is barred by the applicable provisions of General Statutes and Practice Book insofar as the plaintiff never moved to open, modify or set aside the judgment and order of weekly payment; (10) the action is barred because the court has already determined the issues at hand by way of a judgment and order of payments in the matter of Nazzaro v. Crandall, id., with which the plaintiff has complied.
"A motion to strike challenges the legal sufficiency of a pleading . . . and, consequently, requires no factual findings by the trial court . . . We take the facts to be those alleged in the [pleading] . . . and we construe the [pleading] in the manner most favorable to sustaining its legal sufficiency . . . Thus, we assume the truth of both the specific factual allegations and any facts fairly provable thereunder." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). "A motion to strike is properly granted if the [pleading] alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).
In its memorandum of law in support of the motion to strike, the plaintiff argues that the special defenses are legally insufficient as a matter of law as they are factually deficient legal conclusions and that they fail to show that the plaintiff has no cause of action. The defendant counters as follows. The special defenses are legally sufficient and pertain to the judgment entered in Nazzaro v. Crandall, Superior Court, judicial district of New London, Docket No. CV 06 5001717. The defendant does not have to identify specific provisions of the General Statutes or Practice Book because the dictates of Practice Book § 10-3 are directory and not mandatory. The failure of a party to comply with the statutory scheme governing judgment liens deprives the court of subject matter jurisdiction to foreclose on the lien.
Specifically, the plaintiff argues that the defendant's special defenses one, two, three, four and seven are insufficient as a matter of law, being merely a one-line conclusion and that special defenses five, six, eight, nine and ten are legally insufficient and fail to provide that the plaintiff has no cause of action. The plaintiff also contends that the underlying judgment and installment payment order were entered upon the nonappearing defendant; that order was for nominal payments; and that the compliance with the installment payment order does not stay the foreclosure of the judgment lien.
"The fundamental purpose of a special defense [and] other pleadings, is to apprise the court and opposing counsel of the issues to be tried, so that basic issues are not concealed until the trial is underway." (Internal quotation marks omitted.) Moran v. Morneau, 100 Conn.App. 169, 173, 917 A.2d 1003 (2007). "It is axiomatic that [t]he 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.) New England Retail Properties, Inc. v. Maturo, 102 Conn.App. 476, 489, 925 A.2d 11, cert. denied, 284 Conn. 912, 931 A.2d 932 (2007).
Here, the defendant's special defenses one, two, three, four and seven are legally insufficient because the defendant failed to plead any facts and the defendant's allegations are merely conclusions of law. Therefore, the defendant failed to appraise the court of issues to be tried and failed to demonstrate that the plaintiff has no cause of action. Accordingly, the plaintiff's motion to strike is granted as to the defendant's special defenses one, two, three, four and seven.
The motion to strike is also granted as to the special defense six, in which the defendant asserts that the court lacks subject matter jurisdiction, because "the Superior Court has jurisdiction to hear and to decide foreclosure actions, and General Statutes § 52-380a(c) extends the remedy of foreclosure to those who hold judgment liens." Loricco Towers Condominium Assn. v. Pantani, 90 Conn.App. 43, 48-49, 876 A.2d 1211, cert. denied, 276 Conn. 925, 888 A.2d 93 (2005).
"A court does not truly lack subject matter jurisdiction if it has competence to entertain the action before it . . . Once it is determined that a tribunal has authority or competence to decide the class of cases to which the action belongs, the issue of subject matter jurisdiction is resolved in favor of entertaining the action." (Internal quotation marks omitted.) Loricco Towers Condominium Assn. v. Pantani, supra, 90 Conn.App. 48.
In the special defenses five, eight, nine and ten, the defendant asserts, inter alia, the defense of payment and alleges that the order of weekly payments was entered in Nazzaro v. Crandall, supra, Superior Court, Docket No. CV 06 5001717, and that the defendant has fully complied with that order by making regular weekly payments. The defendant also asserts that the plaintiff's action is barred because the plaintiff never moved to open, modify or set aside the judgment and order of weekly payments issued in the matter.
"Historically, defenses to a foreclosure action have been limited to payment, discharge, release or satisfaction . . . or, if there had never been a valid lien." (Internal quotation marks omitted.) Loricco Towers Condominium Assn. v. Pantani, supra, 90 Conn.App. 51. "A foreclosure action is an equitable proceeding . . . The determination of what equity requires is a matter for the discretion of the trial court." (Internal quotation marks omitted.) Deutsche Bank National Trust Co. v. Angle, 284 Conn. 322, 326, 933 A.2d 1143 (2007). "A trial court has discretion, after a review of the equities, to withhold foreclosure . . . Certainly one of the equities in an action for foreclosure of a judgment lien is the fact that the debtor is not in default of the terms ordered as payment of the judgment. If a judgment of foreclosure of a mortgage would not be rendered when the mortgage payments are current, a judgment of foreclosure of a judgment lien should not be rendered without a full hearing on the merits of whether the payments on the judgment are current." (Citations omitted.) First New Haven National Bank v. Rowan, 2 Conn.App. 114, 118-19, 476 A.2d 1079 (1984).
In First New Haven National Bank v. Rowan; id.; explaining the Superior Court's decision in West Haven Teachers Federal Credit Union v. Kimberly, 31 Conn.Sup. 226, 327 A.2d 596 (1974), the Appellate Court stated: "The sole Connecticut case on the precise issue of this case involved a plaintiff's demurrer to a defense that the defendant was discharging the order of a judgment against him by making the weekly payments required, and that, therefore, the plaintiff could not foreclose a judgment lien. The demurrer was overruled, and the court stated that it was within the trial court's province to decide the circumstances surrounding the acceptance by the creditor of the payments and to determine the effect of that acceptance on any judgment of foreclosure of a judgment lien or in setting a law day . . . The defendant in this case is entitled to no less." (Citation omitted.) First New Haven National Bank v. Rowan, supra, 2 Conn.App. 119.
In the present case, the defendant alleges that he is making weekly payments pursuant to the court order issued in Nazzaro v. Crandall, supra, Superior Court, Docket No. CV 06 5001717. Taking the defendant's allegations as true, it is within this court's province to decide the circumstances surrounding the acceptance by the creditor of the payments and to determine the effect of that acceptance on any judgment of foreclosure of a judgment lien. See First New Haven National Bank v. Rowan, supra, 2 Conn.App. 119. In addition, payment is a valid defense to a foreclosure action. See Loricco Towers Condominium Assn. v. Pantani, supra, 90 Conn.App. 51. Therefore, this court will not render a judgment of foreclosure of a judgment lien without a full hearing on the merits of whether the payments on the judgment are current. See First New Haven National Bank v. Rowan, supra, 2 Conn.App. 119. Accordingly, the plaintiff's motion to strike the special defenses five, eight, nine and ten is denied.
CONCLUSION
For the foregoing reasons, the plaintiff's motion is granted as to the defendant's special defenses one, two, three, four, six and seven and denied as to the special defenses five, eight, nine and ten.