Opinion
No. CV03 0082826S
January 7, 2005
MEMORANDUM OF DECISION RE MOTION TO STRIKE
The plaintiff has filed a motion to strike the defendants' five special defenses on the grounds that the special defenses are not valid defenses to a foreclosure action and fail to challenge the legal sufficiency of the plaintiff's cause of action.
The plaintiff, Buddington Park Condominium Association, filed a complaint on August 19, 2003, seeking to foreclose a statutory lien for common expense assessments and fines owed by the defendants, Ignatius Taverna and Marie Taverna, for the condominium unit known as Unit #5, Buddington Park Condominium in Shelton, Connecticut. On May 21, 2004, the defendants filed an answer and five special defenses.
On September 15, 2004, the plaintiff filed a motion to strike the defendants' special defenses with an accompanying memorandum of law. On September 30, 2004, the defendants filed a memorandum of law in opposition to the plaintiff's motion to strike. The court heard oral argument on the motion to strike on December 27, 2004.
"Whenever any party wishes to contest . . . the legal sufficiency of any answer to any compliant . . . or any part of that answer including any special defense contained therein, that party may do so by filing a motion to strike . . ." Practice Book § 10-39(a)(5). "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." (Internal quotation marks omitted.) Homecomings Financial Network, Inc. v. Starbala, 85 Conn.App. 284, 288-89, 857 A.2d 366 (2004). In ruling on a motion to strike, the court recognizes "its obligation to take the facts to be those alleged in the special defenses and to construe the defenses in the manner most favorable to sustaining their legal sufficiency." CT Page 200 Connecticut National Bank v. Douglas, 221 Conn. 530, 536, 606 A.2d 684 (1992).
The plaintiff moves to strike all five special defenses on the ground that they are not recognized as valid defenses to a foreclosure of a statutory lien for common charges because a validly levied common charge cannot be the subject of a special defense. The defendants counter that the special defenses attack the validity of the lien imposed by the plaintiff.
"At common law, the only defenses to an action of [foreclosure] would have been payment, discharge, release or satisfaction . . . or, if there had never been a valid lien." (Internal quotation marks omitted.) Southbridge Associates, LLC v. Garafolo, 53 Conn.App. 11, 15, 728 A.2d 1114, cert. denied, 249 Conn. 919, 733 A.2d 229 (1999); Pepper Partners Ltd. v. Visconti, Superior Court, judicial district of Ansonia/Milford at Milford, Docket No. CV 00 0068897 (December 19, 2000, Curran, J.). "Moreover, [Connecticut] courts have permitted several equitable defenses to a foreclosure action. [I]f the mortgagor is prevented by accident, mistake or fraud, from fulfilling a condition of the mortgage, foreclosure cannot be had." (Internal quotation marks omitted.) Southbridge Associates, LLC v. Garafolo, supra, 53 Conn.App. 15.
"[W]hen the foreclosure is by a condominium association against a unit owner and is predicated upon common charges, special assessments and other items made lienable by statute, the Connecticut cases do not exhibit diversity regarding special defenses . . . This uniformity is reflective of the unique nature of a common interest community. In order to best serve the common interests of the entire community, [condominium] associations . . . must be able to rely upon the timely receipt of anticipated revenues without the delay which would ensue if individual unit owners were permitted to withhold payment because of individual complaints or disagreements they may have regarding the nature and extent of services rendered." (Citation omitted.) Broad Street School Condominium Corp. v. Minneman, Superior Court, judicial district of New London at Norwich, Docket No. 0111179 (April 23, 1997, Solomon, J.).
"The legislature has been clear in its intent to protect the financial integrity of common interest communities. See [General Statutes] § 47-257(g) (providing that a unit owner cannot unilaterally exempt him or herself from liability for payment of common expenses); [General Statutes] § 47-244(a)(10) (allowing a common interest community to impose charges, fines and interest for the late payment of assessments); [General Statutes] § 47-258(a) and (g) (granting a statutory lien on individual units to secure the collection of assessments and further providing for the recovery of costs and attorneys fees incurred by the common interest community in enforcing its lien)." Id.
Connecticut Superior Courts have been consistent in fulfilling this legislative intent by striking special defenses to foreclosure actions predicated upon nonpayment of common charges. "Superior Courts have held that, as a matter of law, a validly levied common charge cannot be the subject of a special defense because it is clear that condominium unit owners are liable for common charges pursuant to the Common Interest Ownership Act." Villa Sol D'or Assn, Inc. v. Surace, Superior Court judicial district of Waterbury, Docket No. CV 98 0145061 (July 8, 1998, West, J.). According to the Common Interest Ownership Act: "No unit owner may exempt himself from liability for payment of the common expenses by waiver of the use or enjoyment of any of the common elements or by abandonment of the unit against which the assessments are made." General Statutes § 47-257(g); see also Condominium Act, General Statutes § 47-78(a). "Pursuant to § 47-78(a), unit owners are plainly liable for common charges." Watch Hill Condominium, Inc. v. Van Eck, Superior Court, judicial district of New Haven, Docket No. CV 93 0344796 (June 14, 1996, Barnett, J.) (17 Conn. Law. Rptr. 198, 203).
The court first reviews the defendants' first, second and third special defenses. The first special defense alleges that the "common expense assessments and fines in this claim are above and beyond the normal monthly fees, and are not consistent to the injury caused to the plaintiff." The second special defense alleges that the plaintiff's fees are "unconscionable" and the third special defense alleges that the fees are "excessive." Several Superior Courts have stricken similar special defenses in foreclosure actions where the plaintiff is seeking to enforce a lien arising from the defendant's failure to pay common charges. See Broad Street School Condominium Corp. v. Minneman, supra, Superior Court, Docket No. 0111179 (granting motion to strike special defense alleging that condominium association inflated common charges); Breakwater Key Assn., Inc. v. Monaco, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 301263 (March 7, 1996, Tobin, J.) ( 16 Conn. L. Rptr. 282) (granting motion to strike special defense alleging that condominium association overcharged for services); Casagmo Condominium Assn., Inc., Phase II v. Kaufman, Superior Court, judicial district of Danbury, Docket No. 303889 (March 15, 1993, McGrath, J.) ( 8 Conn. L. Rptr. 763) (granting motion to strike special defenses alleging that condominium association charged excessive monthly rates). The court agrees with the reasoning of these decisions and accordingly, grants the plaintiff's motion to strike the defendants' first, second and third special defenses.
The defendants also allege, as their fourth special defense, that the plaintiff breached the covenant of good faith and fair dealing. According to recent Connecticut law, "special defenses and counterclaims alleging a breach of an implied covenant of good faith and fair dealing . . . are not equitable defenses to a mortgage foreclosure . . . Accordingly, the defendants' special defense is legally insufficient and is not a valid legal or equitable defense to a foreclosure action." (Internal quotation marks omitted.) Barasso v. Rear Still Hill Road, 81 Conn.App. 798, 807 n. 5, 842 A.2d 1134 (2004); see also Fidelity Bank v. Krenisky, 72 Conn.App. 700, 716, 807 A.2d 968, cert. denied, 262 Conn. 915, 811 A.2d 1291 (2002). In keeping with this court's prior decision stating that a special defense alleging a breach of the covenant of good faith and fair dealing is not an equitable defense to a foreclosure; First Union National Bank v. Bogardus, Superior Court, judicial district of Ansonia/Milford at Milford, Docket No. CV 00 0071447 (December 10, 2001, Curran, J.); the court grants the plaintiff's motion to strike the defendants' fourth special defense.
Lastly, the defendants allege, as their fifth special defense, that the "plaintiff's actions violated the articles of Declaration concerning the levying of fines against the defendant by failing to provide a proper and valid hearing per Article XXIV, Section 24.2." "While courts have recognized equitable defenses in foreclosure actions, they have generally only been considered proper when they attack the making, validity or enforcement of the lien, rather than some act or procedure of the lien holder." (Emphasis added; internal quotation marks omitted.) Derby Savings Bank v. Benedetti, Superior Court, judicial district of Ansonia/Milford at Milford, Docket No. CV 95 0050760 (April 23, 1996, Curran, J.). Because defenses that attack the behavior of the plaintiff are not recognized as defenses to foreclosure; Provident Financial Service, Inc. v. Berkman, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. CV 93 0135310 (February 17, 1995, D'Andrea, J.); the plaintiff's motion to strike the fifth special defense is granted.
Therefore, the plaintiff's motion to strike the five special defenses of the defendants is granted.
The Court
By Curran, JTR