Opinion
No. CV-06-4015047-S
October 2, 2006
MEMORANDUM OF DECISION
The plaintiff commenced the present action by writ of summons and complaint having a return date of February 28, 2006. The plaintiff seeks to foreclose a mortgage allegedly given by the defendants to the original lender. The plaintiff allegedly has been assigned the mortgage.
The defendants, Edwin Valentin and Mildred Gonzalez, the alleged owners and mortgagors of the real property at issue, filed an answer and special defense to the plaintiff's complaint on May 12, 2006. Therein, the defendants claim that they have insufficient knowledge concerning the plaintiff's claims and assert four special defenses. The first special defense alleges that the plaintiff has failed to name necessary and indispensable parties to its action. The second special defense alleges that the plaintiff has wrongfully attempted to "tie in unrelated indebtedness to the payoff of its first mortgage." In their third special defense, the defendants assert the defense of unclean hands and allege in support thereof that the plaintiff has refused the defendants' offer to pay the debt in full and wrongfully "demands additional amounts of money" from them. Finally, the defendants allege that the plaintiff has breached the implied covenant of good faith and fair dealing in the fourth special defense.
The plaintiff presently moves to strike the defendants' special defenses. The plaintiff claims that the defenses are insufficient because the fail to state facts in support of the defenses and in that the defenses do not concern the making, validity and enforcement of the note and mortgage. The defendants have not filed an objection to the motion to strike.
"Prior to the amendment of . . . Practice Book § 155 [now § 10-42], a party who failed to timely file a memorandum of law in opposition to a motion to strike was deemed to have consented to the granting of the motion . . . With the deletion of [that provision] . . . the failure to timely file an opposing memorandum will not necessarily be fatal and the court may therefore address the merits of the motion. However, despite the amendment to . . . Practice Book § [10-42], the filing of a memorandum in opposition to a motion to strike [remains] mandatory and the failure to file such may still serve as a ground for granting a motion to strike." (Emphasis omitted; internal quotation marks omitted.) Barbagallo v. Rob's Automotive, Superior Court, judicial district of New Britain at New Britain, Docket No. 494861 (December 3, 1999, Wollenberg, J.) ( 26 Conn. L. Rptr. 90, 91); but see Phillips Industrial Service Corp. v. Connecticut Light Power Co., Superior Court, judicial district of New Haven at New Haven, Docket No. 409665 (March 22, 1999, Levin, J.) ("a motion to strike may only be granted on grounds stated in Practice Book § 10-39" and not solely upon the adverse party's failure to file a timely memorandum in opposition). Compare Resigna v. Dept. of Mental Health Addiction Services, Superior Court, judicial district of Middlesex at Middletown, Docket No. 086683 (March 8, 1999, Gordon, J.) (granting a motion to strike because the plaintiff failed to file a memorandum in opposition), with Griffith v. Espada, Superior Court, judicial district of New Britain at New Britain, Docket No. 489998, (January 25, 1999, Robinson, J.) (exercising its discretion, the court considered the merits of the motion to strike despite the plaintiff's failure to file a memorandum in opposition). The court will consider the merits of the plaintiff's motion to strike, despite the defendants' failure to file an opposing memorandum.
"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, 815 A.2d 1188 (2003). "It is fundamental that in determining the sufficiency of a complaint . . . all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Commissioner of Labor v. C.J.M. Services, Inc., 268 Conn. 283, 292, 842 A.2d 1124 (2004). A motion to strike "does not admit legal conclusions or the truth or accuracy of opinions." (Internal quotation marks omitted.) In re Michael D., 58 Conn.App. 119, 122, 752 A.2d 1135 (2000). "The [c]ourt [is] limited to the facts alleged in the plaintiff's complaint." CT Page 17886 Rowe v. Godou, 209 Conn. 273, 278, 550 A.2d 1073 (1988). "Where the legal grounds for . . . a motion [to strike] are dependent upon underlying facts not alleged in the plaintiff's pleadings, the defendant must await the evidence which may be adduced at trial, and the motion should be denied." Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 348, 576 A.2d 149 (1990).
In deciding on a motion to strike, the court "must construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Heim v. California Federal Bank, 78 Conn.App. 351, 359, 828 A.2d 129, cert. denied, 266 Conn. 911, 832 A.2d 70 (2003). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Broadnax v. New Haven, 270 Conn. 133, 173, 851 A.2d 1113 (2004).
The defendants assert in their first special defense that the plaintiff failed to name necessary and indispensable parties to the action. "[T]he exclusive method to raise the issue of nonjoinder of indispensable parties is by way of a motion to strike the plaintiff's complaint." Hilton v. New Haven, 233 Conn. 701, 723, 661 A.2d 973 (1995). See Practice Book § 10-39. "A party is defined as indispensable if its interest in a case is such that a final judgment cannot be rendered without either affecting the party's interest or leaving the case in such a condition that its final resolution may be inconsistent with equity and good conscience." W.G. Glenney Co. v. Bianco, 27 Conn.App. 199, 203, 604 A.2d 1345 (1992). In view of the foregoing, the plaintiff's motion to strike the first special defense is granted.
The second special defense alleges an illegal tying arrangement and the third special defense expressly alleges unclean hands. The court concludes that the allegations set forth in the second special defense are also in the nature of the equitable defense of unclean hands for the purposes of deciding this motion.
The plaintiff claims as to both special defenses that they are unsupported by facts. The court notes that the plaintiff did not file a request to revise the special defenses to make them more specific. Notwithstanding, the court finds that the defenses are sufficient factually specific. Additionally, the plaintiff claims that the defenses are insufficient because they do not relate to the making, validity and enforcement of the note.
"The doctrine of unclean hands may be asserted as a special defense in a foreclosure action." Larobina v. First Union National Bank, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV-99-0170845 (2004). See Thompson v. Orcutt, 257 Conn. 301, 308, 777 A.2d 670 (2001). In Thompson v. Orcutt, 257 Conn. 301, 308, 777 A.2d 670 (2001), our Supreme Court stated: "[A]pplication of the doctrine of unclean hands rests within the sound discretion of the trial court . . . The exercise of [such] equitable authority . . . is subject only to limited review on appeal . . . The only issue on appeal is whether the trial court has acted unreasonably and in clear abuse of its discretion . . . In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of [the trial court's] action . . . Whether the trial court properly interpreted the doctrine of unclean hands, however, is a legal question distinct from the trial court's discretionary decision whether to apply it." (Citations omitted; internal quotation marks omitted.)
"We reiterate that foreclosure is an equitable action. Our jurisprudence has recognized that those seeking equitable redress in our courts must come with clean hands. The doctrine of unclean hands expresses the principle that where a plaintiff seeks equitable relief, he must show that his conduct has been fair, equitable and honest as to the particular controversy in issue . . . For a complainant to show that he is entitled to the benefit of equity he must establish that he comes into court with clean hands . . . The clean hands doctrine is applied not for the protection of the parties but for the protection of the court . . . It is applied . . . for the advancement of right and justice . . . The party seeking to invoke the clean hands doctrine to bar equitable relief must show that his opponent engaged in willful misconduct with regard to the matter in litigation . . . The trial court enjoys broad discretion in determining whether the promotion of public policy and the preservation of the courts' integrity dictate that the clean hands doctrine be invoked." (Citations omitted; internal quotation marks omitted.) Monetary Funding Group, Inc. v. Pluchino, 87 Conn.App. 401, 406-07, 867 A.2d 841 (2005); Emigrant Mortgage Corp. v. D'Agostino, 94 Conn.App. 793, 804, 896 A.2d 814 (2006).
In view of the foregoing, the plaintiff's motion to strike the second and third special defenses is denied. The defendants allege in their fourth special defense that the plaintiffs have breach the implied duty of good faith and fair dealing. Like the other special defenses, the plaintiffs claim that the fourth special defense is unsupported by facts. The court notes that the plaintiff did not file a request to revise the special defense to make it more specific. Additionally, the plaintiff claims that the defense is insufficient because it does not relate to the making, validity and enforcement of the note.
The doctrine of the implied covenant of good faith and fair dealing is a valid defense to a foreclosure action. See Hudson United Bank v. Cinnamon Ridge Corporation, 81 Conn.App. 557, 845 A.2d 417 (2004) (Appellate Court affirmed jury verdict denying enforcement of $400,000.00 note based on a violation of the implied covenant of good faith and fair dealing). In view of the foregoing, the plaintiff's motion to strike the fourth special defense is denied.
In conclusion, the plaintiff's motion to strike (113.00) the first special defense is granted. The plaintiff's motion to strike the second, third and fourth special defenses are denied.