Opinion
No. CV-08-5023741-S
October 26, 2010
MEMORANDUM OF DECISION ON MOTION TO STRIKE OF SEVER DEFENDANT'S COUNTERCLAIM
The plaintiff in this mortgage foreclosure action has moved to strike, or in the alternative, sever the counterclaims filed by the defendant, Holly M. Baron (the "defendant").
Allegations of the Complaint and Counterclaim
In the defendant's counterclaims she alleges that she participated in the mediation program pursuant to P.A. 08-17 and that pursuant to the mediation, the "parties agreed to settle the instant matter after the plaintiff agreed to modify the defendant's loan obligation," but the plaintiff failed to provide the defendant with the loan modification documents for her to sign. Counterclaim One alleges a breach of contract based on the plaintiff's refusal to modify the defendant's mortgage. Counterclaim Two alleges the breach of an implied contract to modify the mortgage and Counterclaim Three seeks specific performance of the alleged agreement to modify the defendant's mortgage.
In Counterclaim Four the defendant alleges that on or about February 20, 2009, agents of the plaintiff entered the defendant's premises without her permission and caused damage to her possessions. Counterclaim Five alleges that an agent of the plaintiff attempted to winterize the mortgaged premises on or about February 21, 2009 and did so negligently, causing damage to the premises. Counterclaim Six alleges that on or about February 20, 2009, agents of the plaintiff unlawfully removed space heaters and other items of personal property belonging to the defendant.
Discussion of the Law and Ruling
It is well established in Connecticut that defenses and counterclaims in a foreclosure action must relate to the making, validity, or enforcement of the mortgage note. Southbridge Associates, LLC v. Garofalo, 53 Conn.App. 11, 15, 728 A.2d 1114 (1999). Practice Book § 10-10 provides that a defendant may file a counterclaim against a plaintiff provided that "each such counterclaim . . . arises out of the transaction or one of the transactions which is the subject of the plaintiff's complaint."
The purposes underlying § 10-10 are "judicial economy, avoidance of multiplicity of litigation and avoidance of piecemeal disposition of what is essentially one action." Wallingford v. Glen Valley Associates, Inc., 190 Conn. 158, 161, 459 A.2d 525 (1983). In determining whether claims made in a complaint and counterclaim are essentially "one action," a court must consider whether a substantial duplication of effort would result if each claim was tried separately. Id.
Counterclaims One, Two and Three do not relate to the making, validity, or enforcement of the note or the mortgage which is the subject of the complaint. Instead, the counterclaims allege agreements by the plaintiff which post-dated the aforementioned note and which were wholly separate and distinct from the rights and obligations of the parties under the note and mortgage.
The counterclaims at their core pertain to the plaintiff's conduct after the execution of the note and mortgage at issue, and after the defendant's default. Such conduct has been held not to arise from the same transaction as the foreclosure complaint. JP Morgan Chase Bank v. Rodrigues, 109 Conn.App. 125, 134-35, 952 A.2d 56 (2008); Lyman v. Stevens, 123 Conn. 591, 598, A.2d (1937); Citicorp Mortgage, Inc. v. Ribera, 1995 Conn.Super. LEXIS 2627, at *5 (Pickett, J., September 21, 1995); Great Country Bank v. Kiely, 1995 Conn.Super. LEXIS 2921 (Curran, J., October 19, 1995).
The counterclaims must also be stricken on substantive grounds. A claim for breach of the contract to modify is not available in a foreclosure action where such claim is based on the lender's insistence upon asserting its legal rights under the loan documents. Southbridge Associates, LLC v. Garofalo, 53 Conn.App. 11, 15, 728 A.2d 1114 (1999).
The counterclaims refer to P.A. 08-17 (now Connecticut General Statutes §§ 49-31k et seq.). However, § 49-311 provides that "(7) None of the mortgagor's or mortgagee's rights in the foreclosure action shall be waived by the mortgagor's submission of a foreclosure mediation request form to the court." Section 49-31n provides that "6) In no event shall any determination issued by a mediator under this program form the basis of an appeal of any foreclosure judgment." Thus, it appears that the statute creating the Foreclosure Mediation Program did not intend to alter the common law that a mortgagee has no duty to modify a mortgage. Based on the foregoing, Counterclaims One, Two and Three are stricken.
Counterclaims Four and Six also fail to pertain to the making, validity or enforcement of the mortgage. They are, therefore, ordered severed from the Answer. The defendant may pursue these claims for damages to her personal property in a suit separate from the foreclosure action.
Counterclaim Five does relate to the enforcement of the mortgage and alleges damage to the mortgaged premises. If the plaintiff's agents caused damage to the mortgaged premises, it may be inequitable for the plaintiff to seek a deficiency judgment against the defendant to the extent that those agents caused a diminution in the value of mortgaged premises. Therefore, the Motion to Strike Counterclaim Five is denied.