Opinion
No. CV 03 0194914 S
October 28, 2004
MEMORANDUM OF DECISION
ISSUE
Whether the plaintiff's Motion for Default for Failure to Disclose a Defense (#144 Short Calendar, August 9, 2004) should be granted on the grounds that the defenses disclosed by the defendants are not proper defenses.
The plaintiff's motion for default for failure to disclose a defense is denied because the defendants' disclosed defenses satisfy the standard articulated in Jennings v. Parsons in that they do not appear to be clearly untruthful, irrelevant, frivolous, or asserted in bad faith.
Mortgage Electronic Registration Systems, Inc. filed a complaint against, among others, Holly Pressman, Elizabeth Pressman-Neubardt, and Nancy Pressman-Dressler, claiming that a Note executed by Holly and Robert Pressman is in default and it has, therefore, decided to accelerate the balance due on the Note. The plaintiff seeks, among other things, foreclosure of the mortgage which secures the Note and possession of the property. Elizabeth Pressman-Neubardt and Nancy Pressman-Dressler are alleged to have an interest in the property being foreclosed by virtue of a judgment lien.
On June 3, 2004, the plaintiff filed a demand for disclosure of defense directed at the defendants. On June 7, 2004, Holly Pressman filed a Disclosure of Defense. On June 8, 2004, the plaintiff filed a motion for default for failure to disclose a defense against the defendants. Holly Pressman filed an objection to the motion for default. Elizabeth Pressman-Neubardt and Nancy Pressman-Dressler filed an objection to the motion for default and a disclosure of defense on June 10, 2004. The plaintiff filed a reply to the defendants' objections to the motion for default. Elizabeth Pressman-Neubardt and Nancy Pressman-Dressler filed a supplemental memorandum in support of their objection.
The plaintiff argues that the defenses disclosed by the defendants are not proper and that the court should, therefore, grant its motion. In opposition, the defendants note that the Connecticut Supreme Court has established that testing the legal sufficiency of a disclosed defense by way of a motion for default is not appropriate. They argue that because their counsel have disclosed the defenses in good faith, the court should deny the plaintiff's motion.
"In any action to foreclose or discharge any mortgage . . . in which there is an appearance by an attorney for any defendant, the plaintiff may at any time file . . . a written demand that such attorney present to the court, to become a part of the file in such case, a writing signed by the attorney stating whether he or she has reason to believe and does believe that there exists a bona fide defense to the plaintiff's action and whether such defense will be made, together with a general statement of the nature or substance of such defense." Practice Book § 13-19. "One of the purposes of this rule is to enable the plaintiff, at an early stage of the proceedings, to ascertain whether a defense is in good faith claimed to exist, and is honestly intended to be made, or whether it is a mere sham defense to be interposed merely for delay. To this end it provides a speedy, informal, and summary way of probing the conscience of the counsel for the defendant with respect to this matter, by compelling him to state . . . to the court his belief that a bona fide defense exists, and will be made in good faith. He is required to state whether he has satisfactory reasons to believe, and does in truth believe these things." (Emphasis in original; internal quotation marks omitted.) Jennings v. Parsons, 71 Conn. 413, 416-17, 42 A. 76 (1899).
"In Jennings v. Parsons . . . the court . . . held that testing the legal sufficiency of the disclosed defense is not appropriate at this stage . . . Clearly 13-19] does not expressly confer any such power [to pass upon the legal sufficiency of the proposed defense and to render judgment in favor of the plaintiff, if the court found the defense to be legally insufficient], nor . . . does [it do] so by implication. It is evident from the language of the rule, that the chief thing to be determined in a proceeding under it is the real belief of the counsel and his good faith in this matter, rather than the validity or sufficiency in point of law or of fact of the defense stated . . . He is . . . required to state the nature or substance of the defense, on account of its bearing upon the question of the reasonableness of his belief and the question of his good faith in this matter, and not for the purpose of enabling the court to pass finally upon the truth or the legal sufficiency or availability of the stated defense . . . In a proceeding under [§ 13-19] the nature or substance of the defense stated should be regarded chiefly as [bearing] upon the real belief, good faith and intention of the counsel making the statement. If he has complied with the rule, that is, has disclosed as required, and satisfied the court of his belief and good faith and intention to make the defense, then the truth or the legal sufficiency of it should be left to be tried and determined in the ordinary and regular way . . ." (Citations omitted; internal quotation marks omitted.) Cardello v. Brennan, Superior Court, judicial district of Litchfield, Docket No. 058632, 6 Conn. L. Rptr. 492 (May 29, 1992, Pickett, J.).
Contrary to the plaintiff's argument that its motion for default should be granted because the disclosed defenses are not proper defenses, it is clear that the chief thing to be determined . . . is the real belief of the counsel and his good faith in this matter, rather than the validity or sufficiency in point of law or of fact of the defense stated." Jennings v. Parsons, 125, supra, 71 Conn. 417. "If the disclosed defense in a given case is clearly and unpalpably untruthful, or irrelevant, or utterly frivolous, it would indicate bad faith on the part of the counsel, and might warrant the court in holding that it was not satisfied either that the attorney believed that a bona fide defense existed, or that he intended to make it; but that is a very different thing from passing upon the legal sufficiency of an apparently good defense, believed in good faith to exist, and honestly intended to be made." (Internal quotation marks omitted.) Geha v. Lake Road Trust, LLC, Superior Court, judicial district of Windham at Putnam, Docket No. CV 03 0071065 (May 25, 2004, Foley, J.). "The design of the rule is not to terminate meritorious defenses but to avoid dilatory tactics." Wojciechowski v. Plonka, 32 Conn.Sup. 580, 582, 347 A.2d 457 (1975).
As required by § 13-19, counsel for the defendants each signed a disclosure of defense stating that they have reason to believe and do believe that there exists a bona fide defense to the plaintiff's action and that such defenses will be made, together with a general statement of the nature and substance of the defenses. In addition, there is insufficient evidence to find that the disclosures were made in bad faith. Since the defenses disclosed by the defendants satisfy the standard articulated in Jennings v. Parsons in that they do not appear to be clearly untruthful, irrelevant, frivolous, or asserted in bad faith, the plaintiff's motion for default is denied.
Since oral arguments on the plaintiff's motion for default, the defendants have answered the complaint and filed special defenses similar to the claims raised in their disclosure of defenses. The plaintiff has moved to strike the special defenses, challenging their legal sufficiency. "[L]egal sufficiency is normally challenged in a motion to strike," as opposed to the manner raised in this motion. Cardello v. Brennan, supra, Superior Court, Docket No. 058632.
RICHARD J. TOBIN JUDGE TRIAL REFEREE