Opinion
FSTCV176033810S
07-02-2018
OCWEN LOAN SERVICING, LLC v. Ludys C. NINO et al.
UNPUBLISHED OPINION
OPINION
David R. Tobin, J.T.R.
The plaintiff brought this action seeking to foreclose a mortgage on condominium unit owned by defendant Ludys C. Nino known as 444 Bedford Street, Unit 3H, Stamford, Connecticut. In its complaint, dated October 24, 2017, the plaintiff alleges that on February 27, 2007 the defendant executed a mortgage in favor of Mortgage Electronic Registration System as nominee for IndyMac Bank, F.S.B. to secure a note in the amount of $188,000. The plaintiff further alleges that it is the holder of the note and the assignee of the mortgage which is now in default. The defendant appeared as a self-represented party and on November 21, 2017 filed a rambling motion to dismiss (# 104.00) essentially asserting the plaintiff’s lack of standing based on alleged non-compliance with various statutes. The motion was denied by the Court (Randolph, J.) on January 8, 2018 (# 104.01). On January 24, 2018, the defendant filed an answer denying the allegations of the complaint, but asserting no special defenses. (# 107.00).
Although Bedford Towers Condominium Association, Inc. is also a defendant in this foreclosure action, it has taken no part in the issues raised by the pleading now before the court. This memorandum of decision will refer to Ludys C. Nino as the "defendant."
However, on January 25, 2018, the defendant filed a counterclaim (# 108.00). That pleading consists of an introductory paragraph in which the defendant asserts that "the purported Plaintiff in the above action has participated in the fraudulent conversion and conveyance of Counterclaimant’s chattel paper proper, and not only does not have Standing to invoke this Court’s jurisdiction in this matter, but also, the Counterclaimants’ chattel Security Instruments have been materially altered and are in effect enforceable."
The introductory paragraph is followed by a "Preliminary Statement" consisting of five numbered paragraphs which set forth the defendant’s legal claims without any supporting factual allegations. Following the "Preliminary Statement" is a section entitled "Statement of Facts" which consists of 41 paragraphs which, for the main part are either 1) legal arguments; 2) statements of Nino’s beliefs; or 3) legal conclusions; 4) claims of evidence which the defendant believes relevant; or 5) allegations of facts which do not appear to be relevant to any recognizable cause of action against the plaintiff. The "Statement of Facts" is followed by two paragraphs purporting to summarize the defendant’s position that "the inception of the purported Mortgage Loan transaction the Mortgage itself was induced by fraud and materially altered from the original substance and intent due to the omission of material facts and failure to disclose those facts constitutes fraud and fraud vitiated all contracts."
Following the summary, the defendant’s counterclaim alleges two causes of action one labeled "Fraud in Factum" and the second labeled "Unfair Business" Practices." Both counts incorporate all "facts" stated in the "Statement of Facts."
Presently, before the court is the plaintiff’s motion to strike or dismiss the defendant’s counterclaim (# 109.00) and the defendant’s objection to motion to strike (# 112.00) which opposes the plaintiff’s motion to strike and moves to strike "plaintiff attorney Jacqueline Aiello’s testimony submitted as a memorandum of law in support of her motion to strike or dismiss. In that pleading, the defendant points out that the plaintiff’s motion includes a "Certification" signed by attorney Jacqueline Aiello which purports to authenticate a mortgage note and deed allegedly signed by the defendant. The defendant argues that such evidence should not be considered by the court in ruling of plaintiff’s motion. Both motions were heard on the short calendar on April 23, 2018.
DISCUSSION
A. PLAINTIFF’S PLEADING AS A MOTION TO DISMISS
Practice Book § 10-30(a) states: "A motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) insufficiency of process; and (4) insufficiency of service of process."
Practice Book § 10-6 provides for the order in which pleading are to be filed. Section 10-7 provides that the filing of a pleading out of order waives the right to file any pleading preceding it in the order of pleading established by § 10-6.
The Practice Book does not recognize the filing of pleadings in which two distinct motions listed in § 10-6 are combined.
The plaintiff does not claim that the court lacks either subject matter or personal jurisdiction or that there were issues relating to the process or the service of it. Accordingly, the court finds no basis to entertain plaintiff’s motion as a motion to dismiss.
B. PLAINTIFF’S PLEADING AS A MOTION TO STRIKE
"The purpose of a motion to strike is to contest ... the legal sufficiency of the allegations of any complaint ... to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498 (2003). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ... It is fundamental that in determining the sufficiency of a complaint challenged by a defendant’s motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted ... Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318 (2006).
A motion to strike does not deal with evidence, but rather the sufficiency of the pleading in question. Accordingly, it is not appropriate for the court to consider the "Certification" signed by attorney Jacqueline Aiello. The court also notes that Connecticut does not generally permit attorneys to act as witnesses in support of their client’s case. See Rule 3.7 of the Rules of Professional Conduct. Since the defendant’s answer denies all of the allegations of the plaintiff’s complaint, Attorney Aiello’s "Certification" clearly does not fall within exception (a) of Rule 3.7 for testimony relating to uncontested issues. The court agrees with the defendant that Attorney Aiello’s certification and the materials attached to that certification should not be, and will not be, considered in connection with the matters now before the court.
THE LEGAL EFFECT OF THE COURT’S PRIOR ACTION IN DENYING THE DEFENDANT’S MOTION TO DISMISS
The memorandum of law filed in support of the plaintiff’s motion to strike or dismiss the defendants’ counterclaim asserts that the "Court should strike or dismiss Defendant’s Counterclaims asserted in this action because the Court has already rejected Defendant’s underlying theory when it previously determined that Plaintiff has standing to pursue this matter." In making this argument the plaintiff relies on orders entered by the court at # 104.01 and # 106.01. Both of those orders related to a Motion to Dismiss filed by defendant Nino on November 21, 2017. (# 104.00.)
The defendant’s motion to dismiss claimed that the plaintiff had "not complied with provisions or clearly established law governing validation of debt under FDCPA, TILA, RESPS and the UCC to mention a few. Therefore, there exists genuine issues of material facts going directly to Plaintiff’s standing to foreclose on Defendant’s Mortgage agreement that are either deliberately or inadvertently excluded by the Plaintiff(s) in their foreclosure pleadings."
On December 26, 2017, the plaintiff filed an objection to the motion to dismiss. (# 106.00.) In the memorandum of law filed by the plaintiff in support of its objection, the plaintiff claimed that the defendant’s allegations of noncompliance with various requirements of federal and state law do not implicate the court’s subject matter jurisdiction which "[a]t best, ... could possibly be the basis for a claim of defense or other separate action under those federal statutes, but they in no way create an issue of subject matter jurisdiction for this Court."
The court ruled on the defendant’s Motion to Dismiss without an opinion or any findings of fact. The order simply states: "DENIED." (# 104.01). Similarly, the court’s order with respect to the plaintiff’s objection to the motion to dismiss was simply "SUSTAINED." (# 106.01).
In its brief the plaintiff cites no authority supporting its claim that the denial of a motion to dismiss a complaint without findings of fact or an opinion, conclusively resolves factual issues relating to the merits or a claim, defense or counterclaim. To that extent that the plaintiff’s motion is based on such claims, the court rejects such claims in their entirety.
SUFFICIENCY OF DEFENDANT’S ALLEGATIONS OF FRAUD COUNT I
In its motion to strike, the plaintiff claims that the defendant’s claim of fraud is not sufficiently pled. "Fraud involves deception practiced in order to induce another to act to her detriment, and which causes that detrimental action ... The four essential elements of fraud are (1) that a false representation of fact was made; (2) that the party making the representation knew it to be false; (3) that the representation was made to induce action by the other party; and (4) that the other party did so act to her detriment." (Internal quotation marks omitted.) Carr v. Fleet Bank, 73 Conn.App. 593, 595 (2002). Because specific acts must be pleaded, the mere allegation that a fraud has been perpetrated is insufficient. Maruca v. Phillips, 139 Conn. 79, 81 (1952).
In reviewing the allegations of fraud set forth in the defendant’s counterclaim, the court cannot identify any particular false representation which the defendant claims he relied upon, the actions which he claims to have taken in reliance the false or fraudulent representation, nor any loss which he sustained as a result. The court agrees with the plaintiff that Count I of the defendant’s counterclaim does not sufficiently allege a cause of action for fraud and, accordingly grants the plaintiff’s motion to strike that count.
Practice Book § 10-44 permits the defendant to file a new pleading within fifteen days of this memorandum of decision granting the plaintiff’s motion to strike the first count of his counterclaim.
SUFFICIENCY OF DEFENDANT’S ALLEGATIONS OF UNFAIR BUSINESS PRACTICES COUNT II
The plaintiff claims that Count II of the defendant’s counterclaim must be dismissed because the defendant did not plead "unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." The plaintiff claims that such allegations are essential to a claim under the Connecticut Unfair Trade Practices Act (CUTPA) General Statutes § 42-110b, et seq. In making that claim, the plaintiff ignores the fact that Count II of the defendant’s counterclaim does not purport to state a CUTPA claim. The defendant makes no reference to any statutory basis for the claims set forth in Count II, leading the court to conclude that the defendant is attempting to plead a common-law cause of action.
Incorrectly cited in plaintiff’s memorandum of law as C.G.S.A. § 110b(a).
Practice Book § 10-39(b) requires that: "Each claim or legal insufficiency enumerated in this section shall be separately set forth and shall specify the reason or reasons for such claimed insufficiency. In Stuart v. Freiberg, 112 Conn.App. 857 (2007), the Appellate Court reversed a trial court for granting a motion to strike for reasons not set forth in the motion. The provisions of the Practice Book then in effect required that the reasons be for the motion had to be specified in the motion itself. Under the present provisions of the Practice Book, the reasons for a motion to strike can be set forth in either the motion to strike itself or in the memorandum of law required by Practice Book § 10-39(c). Neither the plaintiff’s motion to strike nor its memorandum of law addresses the viability of a common-law claim of unfair business practices. The court finds that despite the changes to the Practice Book, Stuart v. Freiberg, supra, precludes the court from granting a motion to strike on grounds that are not specified in either the motion itself or the supporting memorandum of law. The court, accordingly, denies the plaintiff’s motion to strike Count II of the defendant’s counterclaim.
CONCLUSION
The court grants the plaintiff’s motion to strike Count I of the defendant’s counterclaim and overrules the defendant’s objection to the motion to strike that count. The court denies the plaintiff’s motion to strike Count II of the defendant’s counterclaim and sustains the defendant’s objection to the motion to strike that count.