Opinion
No. CV08-5008451S
May 14, 2009
MEMORANDUM OF DECISION
The plaintiff, People's United Bank, has commenced an action to foreclose the mortgage it has on property located at 30 Gilbert Rd., Watertown, CT owned by the defendants, John W. and Paula L. Jablonowski.
The defendants have filed an answer, special defenses and counterclaims to this action. The first special defense is based on equitable estoppel. The second special defense is based on promissory estoppel. The counterclaim in six (6) counts claims reformation, negligent misrepresentation, fraudulent misrepresentation, CUTPA, breach of contract and breach of implied covenant of good faith and fair dealing.
The plaintiff moves to strike both special defenses and the counterclaims. The plaintiff claims that the special defenses and counterclaims are not legally sufficient because they fail to address the making, validity or enforcement of the note and mortgage. The plaintiff claims that because the special defenses and counterclaims are based on the conduct of plaintiff post-default, they are not legally recognized as valid defenses or counterclaims. The defendants object claiming that the special defenses and counterclaims arise from a modification of the original note and mortgage and therefore, attack the validity and enforcement of the original note and mortgage.
Connecticut Practice Book § 10-39(a) states: "Whenever a party wishes to contest . . . (5) the legal sufficiency of any answer to a complaint, counterclaim or cross complaint, or any part of an answer including any special defense contained therein, the party may do so by filing a motion to strike the contested pleading or part thereof." "The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any [pleading] to state a claim upon which relief can be granted." Ameriquest Mortgage Co. v. Lax, 113 Conn.App. 646, 650 (2009).
In Chase Manhattan Mortgage Corp. v. MacHado, 83 Conn.App. 183, CT Page 8485 850 A.2d 260 (2004), aff'd, 92 Conn.App. 904, 884 A.2d 22 (2005), the Appellate Court restated the law on the permissible defenses to a foreclosure action:
Historically, defenses to a foreclosure action have been limited to payment, discharge, release or satisfaction . . . or, if there had never been a valid lien . . . 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 . . . A valid special defense at law to a foreclosure proceeding must be legally sufficient and address the making, validity or enforcement of the mortgage, the note or both . . .
(Citations omitted; internal quotation marks omitted.) Id. 187-88.
In Southbridge Assoc. v. Garofalo, 53 Conn.App. 11, 728 A.2d 1114, cert. denied, 249 Conn. 919, 733 A.2d 229 (1999), the Appellate Court found that the equitable defenses raised by the defendant, specifically breach of the implied covenant of good faith and fair dealing and breach of fiduciary duty, did not attack the making, validity or enforcement of the note and mortgage and therefore were not valid special defenses to a foreclosure action.
In New Haven Savings Bank v. LaPlace, 66 Conn.App. 1, 783 A.2d 1174, cert. denied, 258 Conn. 942, 786 A.2d 426 (2001), the Appellate Court went further than the Southbridge Assoc. decision and found that not only were the equitable defenses raised invalid and unenforceable as they did not attack the making, validity or enforcement of the note and mortgage, but also that the counterclaims were invalid and unenforceable as they collectively did not attack the making, validity and enforcement of the note and mortgage. It is interesting to note that several of the counterclaims raised in New Haven Savings Bank are the same as those raised by the defendants in this action.
Therefore, the court concludes after review and consideration of the defendants' special defenses and counterclaims that said special defenses and counterclaims, although raising equitable considerations for the court, are not legally sufficient to be maintained, as they do not attack the making, validity and enforcement of the note and mortgage in this action. The plaintiff's motion to strike the two special defenses and the counterclaims in their entirety is granted.