Opinion
NNHCV186078051
12-03-2019
Nationstar Mortgage, LLC v. Marlon Casacola aka Marlon Casasola
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Baio, Claudia A., J.
MEMORANDUM OF DECISION RE PLAINTIFF’S MOTION TO STRIKE DEFENDANT’S COUNTERCLAIMS AND SPECIAL DEFENSES (#117) AND DEFENDANT’S OBJECTION (#119)
C. Baio, J.
I. RELEVANT PROCEDURAL HISTORY
By motion dated July 23, 2019, the plaintiff, Nationstar Mortgage, LLC, moves to strike the defendant’s six special defenses and ten counterclaims. The defendant, Marlon Casacola, filed an objection on August 26, 2019. The matter was marked by the parties for adjudication. The plaintiff also filed a motion for summary judgment as to liability on July 23, 2019, the same date as, its motion to strike, and well after the defendant’s answer and special defenses filed on January 11, 2019. The motion for summary judgment was marked ready for argument for the September 23, 2019 short calendar and oral argument was presented. The defendant filed no memorandum in opposition, nor did the defendant appear for argument on the motion for summary judgment. The motion for summary judgment was granted as to liability.
In its motion to strike, the plaintiff moves to strike the defendant’s six special defenses and ten counterclaims. The defendant objects. Upon careful review and consideration of the briefs, arguments, and case law cited by the parties, the motion to strike is granted in part and denied in part in accordance with the decision set forth herein. The court will first address the motion to strike each of the ten counterclaims.
II. FACTS ALLEGED AS TO EACH COUNTERCLAIM
The defendant incorporates the following facts as the factual basis for each of the counterclaims. The defendant alleges that on January 30, 2009, the defendant executed and delivered to 1-800-East-West Mortgage Co. a promissory note for the original principal amount of $132,000 and a mortgage deed as security for the note. On January 31, 2009, the mortgage deed was recorded on the land records for the town of Hamden.
Thereafter, on January 10, 2017, the mortgage was assigned to the plaintiff and the assignment was recorded on the town of Hamden land records on January 18, 2017. The defendant further alleges that on March 23, 2017, the plaintiff offered, and the defendant accepted, a permanent loan modification, which was recorded on the land records. In August 2017, the plaintiff began using the registered tradename "Mr. Cooper." New monthly payments of principal and interest on the note per the loan modification are alleged to be $455.07. The defendant claims to have made all payments due under the loan modification as required starting May 1, 2017. The defendant asserts that "Mr. Cooper" thereafter unilaterally decided to no longer accept defendant’s payments on the loan modification and on September 1, 2017, declared the defendant in default. In February 2018, the plaintiff instituted this foreclosure action.
III. STANDARD OF REVIEW
"A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court." Bernhard-Thomas Building Systems, LLC v. Dunican, 286 Conn. 548, 552, 944 A.2d 329 (2008). "Pursuant to Practice Book § 10-39(a)(5), when a party seeks to contest the legal sufficiency of any answer to any complaint, counterclaim or cross complaint, or any part of that 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 [complaint] to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Peter-Michael, Inc. v. Sea Shell Associates, 244 Conn. 269, 270, 709 A.2d 558 (1998). "[A] counterclaim is a cause of action existing in favor of the defendant against the plaintiff and on which the defendant might have secured affirmative relief had he sued the plaintiff in a separate action ... A motion to strike tests the legal sufficiency of a cause of action and may properly be used to challenge the sufficiency of a counterclaim." (Internal quotation marks omitted.) JP Morgan Chase Bank, Trustee v. Rodrigues, 109 Conn.App. 125, 130-31, 952 A.2d 56 (2008); see also Connecticut Practice Book § 10-39.
"[B]ecause a mortgage foreclosure action is an equitable proceeding, the trial court may consider all relevant circumstances to ensure that complete justice is done." TD Bank, N.A. v. M.J. Holdings, LLC, 143 Conn.App. 322, 326, 71 A.3d 541 (2013); see Northeast Savings, F.A. v. Hintlian, 241 Conn. 269, 275, 696 A.2d 315 (1997); see also Moasser v. Becker, 78 Conn.App. 305, 324, 828 A.2d 116, cert. denied, 266 Conn. 910, 832 A.2d 70 (2003); Morgera v. Chiappardi, 74 Conn.App. 442, 456-57, 813 A.2d 89 (2003). Foreclosure may be withheld by the court on the grounds of equitable considerations and principles. LaSalle National Bank v. Freshfield Meadows, LLC, 69 Conn.App. 824, 833, 798 A.2d 445 (2002). "The determination of what equity requires in a particular case, the balancing of the equities, is a matter for the discretion of the trial court." TD Bank, N.A. v. M.J. Holdings, LLC, supra, 326.
At the heart of the contention between the plaintiff and the defendant, and at the central issue of the counterclaims, is the claim of the existence of a loan modification. The plaintiff takes issue with this alleged loan modification, challenging the claim that the allegation of the existence of the loan modification provides a sufficient basis for the defendant’s counterclaims, including asserting that there are insufficient allegations of consideration. As such, before addressing the motion to strike each of the counterclaims individually, the court first addresses that underlying issue and finds that the existence of a loan modification may properly be asserted as a defense or counterclaim in a foreclosure action.
In 2013, our Connecticut Appellate court stated: "It appears that neither this court nor our Supreme Court has addressed whether breach of a loan modification agreement constitutes a valid defense to a foreclosure action. A number of decisions of the [s]uperior [courts], however, have asserted that ‘[a]llegations of modification directly attack the validity or enforcement of the original note or [mortgage such that] a special defense alleging modification is properly raised in a foreclosure proceeding.’ (Internal quotation marks omitted.) ALI, Inc. v. Veronneau, Superior Court, judicial district of Waterbury, Docket No. CV 126431 (October 11, 1996, [Kulawiz, J.] ) (17 Conn.L.Rptr. 677); see also BAC Home Loans Servicing, L.P. v. Presutti, Superior Court, judicial district of Hartford, Docket No. CV-09-5029746 (April 8, 2010, [Scholl, J.] ) (49 Conn.L.Rptr. 609). Although we find this rationale persuasive, we recognize that in order to raise this defense, the defendants must allege a valid loan modification agreement that attacks the making, validity or enforcement of the original note and/or mortgage."TD Bank, N.A. v. M.J. Holdings, LLC, supra, 143 Conn.App. 330-31 (holding the loan modification asserted by defendant in foreclosure action validly raised as defense to foreclosure action).
Particularly relevant to these issues is the recent Connecticut Supreme Court decision of U.S. National Bank Assn. v. Blowers, 332 Conn. 656, 212 A.3d 226 (2019). The Blowers court addressed a similar issue. Id. In Blowers, the trial court granted a motion to strike counterclaims and special defenses in a foreclosure action, and the Appellate Court affirmed. Id. The Supreme Court reversed the Appellate Court ruling and held: "In reaching our decision, we presume that the Appellate Court did not intend for the making, validity, or enforcement test to require mortgagors to meet a more stringent test than that required for special defenses and counterclaims in nonforeclosure actions. We therefore interpret the test as nothing more than a practical application of the standard rules of practice that apply to all civil actions to the specific context of foreclosure actions. See Citimortgage, Inc. v. Rey, 150 Conn.App. 595, 605, 92 A.3d 278 (’a counterclaim must simply have a sufficient relationship to the making, validity or enforcement of the subject note or mortgage in order to meet the transaction test as set forth in Practice Book § 10-10 and the policy considerations it reflects’), cert. denied, 314 Conn. 905, 99 A.3d 635 (2014). We agree with the defendant and the dissenting Appellate Court judge that a proper construction of ‘enforcement’ includes allegations of harm resulting from a mortgagee’s wrongful postorigination conduct in negotiating loan modifications, when such conduct is alleged to have materially added to the debt and substantially prevented the mortgagor from curing the default." Id., 667.
In addressing the issue, the Supreme Court emphasized the narrow issue before the court, noting, "[t]he trial court concluded that the allegations in support of both special defenses of unclean hands and equitable estoppel were legally sufficient, but for the requisite direct connection to the making, validity, or enforcement of the note or mortgage. The court never decided whether the counterclaims adequately stated a claim upon which relief may be granted, resting its conclusion solely on the lack of the requisite connection to enforcement of the note or mortgage. We assume, for purposes of this opinion, that both the defenses and counterclaims would otherwise be legally sufficient and limit our review to the question of whether the allegations bear a sufficient connection to enforcement of the note or mortgage." Id., 670.
IV. MOTION TO STRIKE COUNTERCLAIMS
With U.S. Bank National Assn. v. Blowers, supra, 332 Conn. 656, the following is still relevant in considering a motion to strike counterclaims. A counterclaim to a foreclosure complaint must relate to the making, validity, and enforcement of the mortgage. See JP Morgan Chase Bank, Trustee v. Rodrigues, supra, 109 Conn.App. 133. In assessing the viability of a counterclaim, Practice Book § 10-10 requires consideration of whether the counterclaim at issue "arises out of the transaction or one of the transactions which is the subject of the plaintiff’s complaint ..." This is referred to as the "transaction test." See CitiMortgage, Inc. v. Rey, 150 Conn.App. 595, 602, 92 A.3d 278 (2014). In the context of a foreclosure action, the consideration includes whether the counterclaim has a reasonable nexus to the making, validity and enforcement of the note rather than whether it is a direct attack. See U.S. Bank National Assn. v. Sorrentino, 158 Conn.App. 84, 96, 118 A.3d 607 (2015); CitiMortgage, Inc. v. Rey, supra, 150 Conn.App. 595; see also U.S. Bank National Assn. v. Blowers, supra, 332 Conn. 656.
Although the two tests may be intertwined, and the tests may incorporate that consideration of nexus, that "does not limit a viable counterclaim to those that directly challenge the making, validity or enforcement of a note or mortgage." CitiMortgage, Inc. v. Rey, supra, 150 Conn.App. 602-03. Accordingly, "in assessing the legal viability of counterclaims to a foreclosure action, the court should employ the transaction test set forth in Practice Book § 10-10, and ... although this test may require an assessment of whether the counterclaim in question relates to the making, validity or enforcement of the subject note and mortgage, there can be such a nexus even though the counterclaim may not directly attack the making, validity or enforcement of the mortgage and note which form the basis of the foreclosure complaint." Id., 605-06. When a modification has been raised, the party raising that issue must allege a binding modification. See id. ; see also U.S. Bank National Assn. v. Blowers, supra, 332 Conn. 656.
A. MOTION TO STRIKE FIRST COUNTERCLAIM: BREACH OF CONTRACT
The defendant’s first count of her counterclaim asserts breach of contract. The plaintiff claims that the defendant has failed to allege the requisite agreement and elements thereof to support a counterclaim for breach of contract. Upon review of the allegations of the defendant’s first counterclaim, the defendant does allege the requisite facts to assert a breach of contract counterclaim; see U.S. Bank National Assn. v. Eichten, 184 Conn.App. 727, 773-75, 196 A.3d 328 (2018); whether she can prove that is a different issue and one that is not properly before the court in considering a motion to strike. Based on the application of the transaction test, and the facts as alleged by the defendant, the court finds that the defendant’s allegations related to the loan modification are sufficiently intertwined with the complaint as to have a sufficient nexus to the same transaction. The motion to strike count one of the defendant’s counterclaim is DENIED.
B. MOTION TO STRIKE SECOND COUNTERCLAIM: BREACH OF IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING
The plaintiff seeks to strike the defendant’s second count of her counterclaim for breach of implied covenant of good faith and fair dealing. The Connecticut Appellate Court has "stated that 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." (Internal quotation marks omitted.) LaSalle National Bank v. Freshfield Meadows, LLC, supra, 69 Conn.App. 835; Fidelity Bank v. Krenisky, 72 Conn.App. 700, 716, 807 A.2d 968 (2002). Consequently, the defendant’s claim is legally insufficient and the motion to strike the defendant’s second counterclaim is GRANTED.
C. MOTION TO STRIKE THIRD COUNTERCLAIM: PROMISSORY ESTOPPEL
The plaintiff further seeks to strike count three of the defendant’s counterclaim which asserts promissory estoppel. This claim is based on the factual allegations set forth above as related to the claimed modification. The defendant further asserts that the plaintiff "made a clear and definite promise to defendant by offering her a loan modification," that the defendant relied upon that modification offer and that "[t]he plaintiff’s promise induced the action of the defendant, who, in turn made timely monthly mortgage payments in reliance upon the defendant’s promise, all in accordance with the terms of the permanent loan modification agreement." (Counterclaim, count three, ¶¶12-14.) The plaintiff’s only argument in support of the motion to strike this count of the counterclaim is that the defendant did not allege sufficient specifics as to the modification and the consideration.
" ‘[T]raditional mortgage foreclosure standards ... permit the assertion of certain special defenses, including that of equitable estoppel.’ Congress Street Condominium Assn., Inc. v. Anderson, 132 Conn.App. 536, 544, 33 A.3d 274 (2011). The doctrine of equitable estoppel is well established. [W]here one, by his words or actions, intentionally causes another to believe in the existence of a certain state of things, and thereby induces him to act on that belief, so as injuriously to affect his previous position, he is [precluded] from averring a different state of things as existing at the time ... Our Supreme Court ... stated, in the context of an equitable estoppel claim, that [t]here are two essential elements to an estoppel: the party must do or say something which is intended or calculated to induce another to believe in the existence of certain facts and to act upon that belief; and the other party, influenced thereby, must actually change his position or do something to his injury which he otherwise would not have done. Estoppel rests on the misleading conduct of one party to the prejudice of the other ... Broadly speaking, the essential elements of an equitable estoppel ... as related to the party to be estopped, are: (1) conduct which amounts to a false representation or concealment of material facts, or, at least, which is calculated to convey the impression that the facts are otherwise than, and inconsistent with, those which the party subsequently attempts to assert; (2) the intention, or at least the expectation, that such conduct shall be acted upon by, or influence, the other party or other persons; and (3) knowledge, actual or constructive, of the real facts.’ (Citations omitted; internal quotation marks omitted.) Johnnycake Mountain Associates v. Ochs, 104 Conn.App. 194, 208-09, 932 A.2d 472 (2007), cert. denied, 286 Conn. 906, 944 A.2d 978 (2008)." (Footnote omitted.) TD Bank, N.A. v. M.J. Holdings, supra, 143 Conn.App. 337-38.
The defendant’s counterargument that the allegation of the existence and terms of an executed modification itself, which provides the factual assertion of an executed contract providing for payment of new money under modified terms, is sufficient to satisfy the fact pleading necessary to overcome a motion to strike is well taken. The pleading being liberally construed, as it must, the motion to strike count three of the defendant’s counterclaim is DENIED.
D. MOTION TO STRIKE FOURTH COUNTERCLAIM: CUTPA
The defendant has alleged a violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110 et seq. (CUTPA) in count four of the counterclaim. The defendant relies upon the same allegations as it relates to the loan modification but then adds that the plaintiff’s actions are "immoral, unethical, oppressive and/or unscrupulous," that the conduct has "caused substantial harm to the defendant," and that the conduct violates CUTPA. (Counterclaim, count four, ¶¶12-14.)
"When determining whether a practice violates CUTPA, [the court] will consider (1) whether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise- whether, in other words, it is within at least the penumbra of some common-law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers (or competitors or other businessmen) ... Thus, a violation of CUTPA may be established by showing either an actual deceptive practice ... or a practice amounting to a violation of public policy ... Whether a practice is unfair and thus violates CUTPA is an issue of fact." (Internal quotation marks omitted.) De La Concha of Hartford, Inc. v. Aetna Life Ins. Co., 269 Conn. 424, 433-34, 849 A.2d 382 (2004). "Additionally ... ‘[a]ll three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three ... Thus a violation of CUTPA may be established by showing either an actual deceptive practice ... or a practice amounting to a violation of public policy.’ (Internal quotation marks omitted.) Journal Publishing Co. v. Hartford Courant Co., 261 Conn. 673, 695-96, 804 A.2d 823 (2002)." Monetary Funding Group, Inc. v. Pluchino, 87 Conn.App. 401, 413, 867 A.2d 841 (2005).
The court in JP Morgan Chase Bank, Trustee v. Rodrigues, supra, 109 Conn.App. 125, cites the cases deciding that CUTPA claims can be viable counterclaims to a foreclosure action; see e.g., Monetary Funding Group, Inc. v. Pluchino, supra, 87 Conn.App. 412-15; Cheshire Mortgage Service, Inc. v. Montes, 223 Conn. 80, 612 A.2d 1130 (1992); and those that do not. See e.g., Southbridge Associates, LLC v. Garofalo, 53 Conn.App. 11, 728 A.2d 1114, cert. denied, 249 Conn. 919, 733 A.2d 229 (1999) (wherein in addressing motion for summary judgment, conduct was found to have occurred well after loan documents were executed and, as such, did not relate precisely to making, validity and enforcement of notes). "Conduct on the part of the party seeking foreclosure that occurred after the loan documents were executed and not necessarily directly related solely to enforcement of the note, however, properly has been found not to arise out of the same transaction as the complaint. See Southbridge Associates, LLC v. Garofalo, supra, 53 Conn.App. 16-21." JP Morgan Chase Bank, Trustee v. Rodrigues, supra, 134-35. The bottom line is that it is within the court’s discretion to conclude that the plaintiff’s conduct as alleged in the counterclaim was or was not part of the same transaction as alleged in the complaint. Id.
In this case, the Appellate Court found viable a CUTPA counterclaim where it was alleged that the plaintiff mortgagee misled an unsophisticated defendant regarding the interest rate on the note and the amount of fees involved in the transaction and had structured the transaction to require two loans for the purpose of maximizing fees that could not have been demanded as part of a single loan transaction. The court concluded that the trial court properly determined that the plaintiff violated CUTPA on the basis of its conduct in securing the mortgage note, namely that it had unclean hands and had made an unconscionable loan.
In Cheshire Mortgage, supra, the Connecticut Supreme Court reversed the trial court’s judgment of foreclosure, determined that the mortgagee plaintiff had violated the federal Truth in Lending Act and had included the prepaid finance charge in the principal amount of the loan rather than categorizing it as interest. The plaintiff’s violation of both § 36-224 l and the act was held to constitute an unfair trade practice under CUTPA.
Similar to the matters before the court in J.P. Morgan Chase Bank, Trustee v. Rodrigues, supra, 109 Conn.App. 125, and Southbridge Associates v. Garofalo, supra, 53 Conn.App. 11, in the present case, although the defendant’s allegations related to the conduct of the plaintiff that occurred after the execution of the mortgage note and with respect to documents other than the mortgage note, they relate to issues tied to the obligation on the mortgage note such that at least in addressing the plaintiff’s motion to strike, the defendant’s counterclaim at least colorably alleges facts sufficient to assert that they arise from the same transaction. Accordingly, the motion to strike count four is DENIED.
E. MOTION TO STRIKE FIFTH AND SIXTH COUNTERCLAIMS: INTENTIONAL AND NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
In counts five and six of the counterclaim, the defendant alleges that the defendant suffered emotional distress as a result of the plaintiff’s action in rescinding the modification agreement and pursuing the foreclosure action. The defendant includes the allegations in conclusory statement form of the elements of emotional distress, both for intentional and negligent infliction. As to the counterclaim for emotional distress, this includes the allegation that the plaintiff’s conduct was extreme and outrageous. Upon review of the allegations, and applying the requisite transaction test to the counterclaims, the court cannot find that any sufficient nexus exists to allow these counterclaims to stand as viable. The allegations against the plaintiff relate to claims of the plaintiff’s behavior rather than to the specific subject of the complaint, specifically, the note and mortgage obligations. Cf. JP Morgan Chase Bank, Trustee v. Rodrigues, supra, 109 Conn.App. 133 (upholding trial court order striking counterclaim for emotional distress on same basis). Consequently, the motion to strike the counterclaims counts five and six for intentional and negligent infliction of emotional distress is GRANTED.
F. MOTION TO STRIKE SEVENTH COUNTERCLAIM: UNJUST ENRICHMENT
The defendant incorporates the same factual allegations and claims unjust enrichment in count seven. To establish a claim for unjust enrichment, one must prove that: (1) the party against whom the claim is made was benefitted; (2) the party unjustly did not pay for benefits; and (3) the failure of payment was to the plaintiff/counterclaimant’s detriment. See Vertex, Inc. v. Waterbury, 278 Conn. 557, 573, 898 A.2d 178 (2006), quoting Hartford Whalers Hockey Club v. Uniroyal Goodrich Tire Co., 231 Conn. 276, 282-83, 649 A.2d 518 (1994).
As addressed by the court in Doherty, Beals & Banks, P.C. v. Sound Community Services, Inc., Superior Court, judicial district of New London, Docket No. CV-10-6005795-S (May 19, 2011, Cosgrove, J.). "Unjust enrichment applies whenever justice requires compensation to be given for property or services rendered under a contract, and no remedy is available by an action on the contract ... Indeed, lack of a remedy under a contract is a precondition for recovery based upon unjust enrichment." (Citation omitted; internal quotation marks omitted.) Gagne v. Vaccaro, 255 Conn. 390, 401, 766 A.2d 416 (2001).
That said, under our pleading practice rules, the plaintiff/counterclaimant is permitted to plead in the alternative, even if counts are inconsistent. See Dreier v. Upjohn Co., 196 Conn. 242, 245, 492 A.2d 164 (1985). This is so as "[w]hile proof of an enforceable contract might preclude application of an unjust enrichment theory, the plaintiff may be unable to prove an enforceable contract and, at least in the early stages of the proceedings, is entitled to plead inconsistent theories. (Internal quotation marks omitted.)" William Raveis Real Estate v. Cendant Mobility Corp., Superior Court, judicial district of Ansonia-Milford, Docket No. CV-05-4002709-S (December 6, 2005, Stevens, J.). The allegations of a contract, however, cannot be incorporated as a basis of a claim of unjust enrichment; the lack of a contract is a condition precedent to the claim of unjust enrichment. In short, the allegations supporting both breach of contract and unjust enrichment cannot be asserted in a single count. In Doherty, Beals & Banks, P.C. v. Sound Community Services, Inc., supra, Docket No. CV-10-6005795-S, the trial court granted the motion to strike because "by incorporating all of the allegations of count one into count two, the plaintiff specifically alleges both the existence of a written contract between the parties ... and a breach of that contract ... This is contrary to the rule of alternative pleading ..."
Here, the defendant/counterclaimant has indeed incorporated by reference all the allegations which were also incorporated in count one of the counterclaim asserting breach of contract, which alleges the existence of a contract which the plaintiff/counterclaim defendant is alleged to have breached. Consequently, the defendant has incorporated the allegations of both breach of contract and unjust enrichment into one count in his seventh count of the counterclaim. This cannot stand. The motion to strike the seventh counterclaim is GRANTED.
G. MOTION TO STRIKE EIGHTH AND NINTH COUNTERCLAIMS: CONVERSION AND CIVIL THEFT
The defendant alleges conversion in count eight of the counterclaim. Again, this claim is based on the same allegations as the special defenses and other counterclaims, that the plaintiff, "despite unilaterally revoking the permanent loan modification agreement, plaintiff has retained all funds paid by the defendant towards same for its own benefit." (Counterclaim, count eight, ¶12.) In count nine, asserting civil theft, the defendant, based on the same allegations as her eighth count, alleges that the plaintiff "intentionlly deprived the defendant of her property." (Counterclaim, count nine, ¶12.)
Under our law, money can be the subject of a conversion complaint and a civil theft complaint. See Bank of America, N.A. v. Criscitelli, Superior Court, judicial district of Hartford, Docket No. CV-13-6038369-S (August 31, 2015, Sheridan, J.)., quoting Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 771, 905 A.2d 623 (2006). "The plaintiffs ... must establish, however, legal ownership or right to possession of specifically identifiable moneys." (Citations omitted; internal quotation marks omitted.) Deming v. Nationwide Mutual Ins. Co., supra, 772. "A mere obligation to pay money may not be enforced by a conversion action ... and an action in tort is inappropriate where the basis of the suit is a contract, either express or implied." (Internal quotation marks omitted.) Id.
Counts eight and nine of the defendant’s counterclaim allege that funds given to the plaintiff were unjustifiably retained by the plaintiff/counterclaim defendant for its own benefit. Legal ownership or right to possession of specifically identifiable funds is not pleaded. Consequently, the allegations of the defendant’s counterclaim are legally insufficient. Also, as the eighth count seeking to allege conversion incorporates the allegation of a breach of contract, to the extent the retention of the funds is the premise for the claim of breach of the contract/loan modification agreement, the basis for this count is also a claimed contract, either express or implied. Cf. Bank of America, N.A. v. Criscitelli, supra, Docket No. CV-13-6038369-S.
Accordingly, the motion to strike is granted as to counts eight and nine of the defendant’s counterclaim.
H. MOTION TO STRIKE TENTH COUNTERCLAIM: SLANDER OF TITLE
In count ten of the counterclaim, the defendant, again incorporating the same allegations, alleges that by recording the lis pendens on the land records, the plaintiff has engaged in slander of title. The defendant further alleges that the statement was published "with malice in that the plaintiff knew that said statement was false" or published same with "reckless disregard to its lack of truthfulness." (Counterclaim, count ten, ¶14.) She claims that the alleged slander of title resulted in special damages as a result of "diminished value" of her property in the eyes of third parties. (Counterclaim, count ten, ¶15.)
Under Connecticut law, slander of title occurs through "the uttering or publication of a false statement derogatory to the plaintiff’s title, with malice, causing special damages as a result of diminished value of the plaintiff’s property in the eyes of third parties. The publication must be false, and the plaintiff must have an estate or interest in the property slandered. Pecuniary damages must be shown in order to prevail on such a claim." Elm Street Builders, Inc. v. Enterprise Park Condominium Assn., Inc., 63 Conn.App. 657, 669-70, 778 A.2d 237 (2001). In considering this motion to strike, similar to the matter before the trial court in Bank of America, N.A. v. Criscitelli, supra, Docket No. CV-13-6038369-S, the allegations of count ten, "when read broadly, realistically and favorably to the defendant," support a claim that the plaintiff’s lis pendens was a "publication" derogatory to the defendant’s title. The defendant has also pleaded that the statement was published with malice. (See Counterclaim, count ten, ¶14.) At this stage of the proceedings and in considering this motion to strike, that allegation of fact must be taken as true. Consequently, the defendant has sufficiently alleged all the requisite elements of an action for slander of title. The motion to strike is denied as to count ten of the counterclaims.
The court next turns to the consideration of the motion to strike the special defenses.
V. MOTION TO STRIKE THE SPECIAL DEFENSES
The defendant raises the following special defenses:
First Special Defense: Waiver;
Second Special Defense: Promissory Estoppel;
Third Special defense: Unclean Hands;
Fourth Special: Defense Payment;
Fifth Special defense: Performance; and
Sixth special defense: Fraudulent Misrepresentation.
At the outset of the consideration of the motion to strike the special defenses, the procedural history is relevant. As set forth above, the plaintiff filed a motion for summary judgment, as to liability which the defendant did not oppose. No memorandum in opposition, nor counterevidence, nor affidavit was filed. The matter was scheduled for oral argument and the defendant did not appear. The matter, which was unopposed, was reviewed and considered. The plaintiff had provided along with its motion for summary judgment the supporting documentation to establish its prima facie case. Additionally, in addressing the defendant’s special defenses, the plaintiff provided supporting documentation to support the plaintiff’s claim that the defendant’s special defenses are factually and legally insufficient. (See Memorandum of Law in Support of Plaintiff’s Motion for Summary Judgment #116.) As noted, there was no countervailing evidence presented. As a result, the motion for summary judgment was granted. (See Order #115.10.)
As addressed above, the standard of review as it relates to a motion to strike requires a review of the allegations of the pleadings alone. See Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). "A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court." Bernhard-Thomas Building Systems, LLC v. Dunican, supra, 286 Conn. 552.
In considering a motion for summary judgment, the court must consider the pleadings, affidavits and other proof submitted to determine whether there exists a genuine issue of material fact. See Doucettev. Pomes, 247 Conn. 442, 452, 724 A.2d 481 (1999). "Summary judgment shall be rendered forthwith if the pleadings, affidavits and other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." (Internal quotation marks omitted.) Id., quoting Practice Book § 17-49. Once the moving party meets the burden of showing the absence of any genuine issue of material facts to entitle him to a judgment as a matter of law, "the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Internal quotation marks omitted.) Rivera v. Double A Transportation, Inc., 248 Conn. 21, 24, 727 A.2d 204 (1999). "Although the party seeking summary judgment has the burden of showing the non-existence of any material fact ... a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue." (Emphasis added; internal quotation marks omitted.) Home Ins. Co. v. Aetna Life & Casualty Co., 235 Conn. 185, 202, 663 A.2d 1001 (1995). "The existence of the genuine issue of material fact must be demonstrated by counter affidavits and concrete evidence." (Internal quotation marks omitted.) Pion v. Southern New England Telephone Co., 44 Conn.App. 657, 663, 691 A.2d 1107 (1997).
In deciding a motion to strike, the court’s review is limited only to the pleadings and whether the special defense has been adequately pled. Whether the special defense can be proven is an issue for a further stage of the litigation. By contrast, the determination of a motion for summary judgment requires that the person opposing the motion provide proof to establish a genuine issue of material fact. This standard of review requires that the nonmoving party do more than just allege an adequately pled special defense.
"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." GMAC Mortgage, LLC v. Ford, 144 Conn.App. 165, 181, 73 A.3d 742 (2013), quoting Fidelity Bank v. Krenisky, 72 Conn.App. 700, 705-05, 807 A.2d 968, cert. denied, 262 Conn. 915, 811 A.2d 1291 (2002). "Legal conclusions expressed in the pleadings are not deemed or admitted when the legal sufficiency of the pleading is attacked." Norwest Mortgage, Inc. v. Cook, Superior Court, judicial district of New London, Docket No. CV-00-0546601-S (February 15, 2000, Martin, J.).
"A plaintiff in a foreclosure action can challenge a special defense by summary judgment in three ways. The first way to challenge a special defense is to argue that the special defense does not address the making, validity and enforcement of the mortgage ... The second way to challenge a special defense is to challenge its legal sufficiency ... The third way to challenge a special defense is to show that there is no genuine issue of material fact based on the evidence ... Even if a special defense is a valid defense to a foreclosure action, and even if such a defense is sufficiently pled, the defendant still must produce sufficient evidence to support the defense in order to survive summary judgment." (Internal quotation marks omitted.) IndyMac Bank, F.S.B. v. Khan, Superior Court, judicial district of Fairfield, Docket No. CV-08-5016789-S (April 16, 2010, Hartmere, J.).
Given that the plaintiff’s motion for summary judgment as to liability, filed after the defendant’s answer and special defenses and specifically addressing the claims therein, has been fully argued, considered, and granted with no opposition or counterevidence provided by the defendant in response, the determination of the motion to strike the special defenses is moot.
IV. CONCLUSION
For the foregoing reasons, the plaintiff’s motion to strike counts two, five, six, seven, eight and nine of the defendant’s counterclaim is GRANTED.
The plaintiff’s motion to strike counts one, three, four and ten of the counterclaim is DENIED. The motion to strike the special defenses is deemed moot.