Opinion
No. CV01-034 45 30 S
April 17, 2003
MEMORANDUM OF DECISION
This matter comes before the court on the plaintiff's motion to strike the first and second special defenses and the counterclaim in the defendant's amended answer filed November 26, 2002. The plaintiff is Ameriquest Mortgage Company, (Ameriquest), and the defendant is Kenneth Hutwohl (Hutwohl).
According to the complaint, on March 26, 1998, Hutwohl executed a promissory note whereby he promised to pay Ameriquest the sum of two hundred fifty thousand dollars ($250,000) in three hundred sixty (360) monthly installments, beginning May 1, 1998. The note contains an acceleration clause enforceable by Ameriquest if Hutwohl misses any monthly payment as well as provisions requiring Hutwohl to cover Ameriquest's expenses, costs and attorney fees in enforcing the note should the clause be invoked. Hutwohl also gave Ameriquest a mortgage on property he had an interest in at 5 Oak Lane, Danbury, by mortgage deed dated March 26, 1998, and recorded April 6, 1998, in volume 1212 at page 936 of the Danbury Land Records.
Hutwohl failed to pay the installment due May 1, 1998, and Ameriquest exercised its option to accelerate payment of the remaining installments and notified Hutwohl of such. Ameriquest received no further payments, and in January 1999, commenced an action against Hutwohl seeking reformation of the mortgage deed and foreclosure. On May 30, 2001, while the above action was pending, Hutwohl transferred the mortgaged property by quitclaim deed for allegedly inadequate consideration to Twelve Oaks, LLC (Twelve Oaks), a Connecticut limited liability corporation, whose agent for service is Evelyn Hutwohl.
On December 20, 2001, Ameriquest filed an application for prejudgment remedy and a two-count complaint. The first count against Hutwohl claimed that Hutwohl had failed to pay the note and requested payment with interest, attorneys fees and costs. The second count was against Hutwohl and Twelve Oaks, claiming the transfer of Hutwohl's interest was made with the intent to hinder, delay and defraud Ameriquest as the creditor. On July 22, 2002, Hutwohl filed an answer and, subsequently, amended it on November 27, 2002. The amended complaint alleges two special defenses and a counterclaim.
On February 28, 2003, Ameriquest filed a motion to strike the plaintiff's amended answer, accompanied by a supporting memorandum of law. To date, Hutwohl has not filed a memorandum of law in opposition to Ameriquest's motion to strike. In addition to not filing a memorandum in opposition to the motion, Hutwohl did not appear in court to oppose the motion, therefore, the court grants the plaintiff's motion to strike the amended complaint and, in doing so, adopts the reasoning presented in the plaintiff's memorandum in support of the motion to strike.
"The plaintiff's failure to file a memorandum in opposition to the defendant's motion to strike may serve as a ground for granting the defendant's motion to strike . . . Prior to the amendment of . . . Practice Book § [10-42 in 1989], 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 the foregoing provision from section [10-42], the failure to timely file an opposing memorandum will not necessarily be fatal and the court may therefore address the merits of the motion . . . [D]espite the amendment to . . . Practice Book § [10-42], the filing of a memorandum in opposition to a motion to strike is mandatory and the failure to file such may still serve as a ground for granting the motion to strike." (Citations omitted; internal quotation marks omitted.) Doe v. New Haven Board of Education, Superior Court, judicial district of New Haven, Docket No. 443427 (September 25, 2001, Jones, J.) ( 30 Conn.L.Rptr. 443, 446 n. 1).
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaints . . . 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). "In . . . ruling on [a] motion to strike, the trial court [is obligated] 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." Connecticut National Bank v. Douglas, 221 Conn. 530, 536, 606 A.2d 684 (1992). "In ruling on a motion to strike, the court is limited to the facts alleged in the [challenged pleading] . . . If facts provable in the [pleading] would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).
Hutwohl's first special defense claims that Ameriquest is barred from bringing an action on the note because election of remedies is legally insufficient. Although General Statutes § 49-1 does limit the additional remedies available when a mortgage is foreclosed, the Connecticut Supreme Court has held that "the plaintiff is entitled to pursue its remedy at law on the notes, or to pursue its remedy in equity upon the mortgage, or to pursue both. A note and a mortgage given to secure it are separate instruments, executed for different purposes and in this [s]tate action for foreclosure of the mortgage and upon the note are regarded and treated, in practice, as separate and distinct causes of action, although both may be pursued in a foreclosure suit . . . If, by an action solely on the note, the owner secures full payment on the debt, his right to enforce the mortgage is gone, or, if he secures payment in part, he can enforce the mortgage only to secure the payment of the balance . . . Where such a procedure is followed, the extent of the recovery, however, should not in any event exceed the amount of the debt." (Citations omitted; internal quotation marks omitted.) Wendell Corporation Trustee v. Thurston, 239 Conn. 109, 116-17, 680 A.2d 1314 (1996). Since Hutwohl, in his amended answer, pleaded no factual allegations that could impede the Ameriquest's enforcement of the note such as full or partial payment, the first special defense must be stricken.
General Statutes § 49-1 states:
The foreclosure of a mortgage is a bar to any further action upon the mortgage debt, note or obligation against the person or persons who are liable for the payment thereof who are made parties to the foreclosure and also against any person or persons upon whom service of process to constitute an action in personam could have been made within this state at the commencement of the foreclosure; but the foreclosure is not a bar to any further action upon the mortgage debt, note or obligation as to any person liable for the payment thereof upon whom service of process to constitute an action in personam could not have been made within this state at the commencement of the foreclosure.
The judgment in each such case shall state the names of all persons upon whom service of process has been made as herein provided.
Hutwohl's second special defense claiming that he was charged an excessive amount for an allegedly unknown flood insurance premium when he does not live on a flood plain is legally insufficient. Practice Book § 10-50 defines a special defense as "[f]acts which are consistent with [the allegations of the complaint] but show, notwithstanding, that [the plaintiff] has no cause of action . . ." (Internal quotation marks omitted.) Second Exeter Corp. v. Epstein, 5 Conn. App. 427, 429, 499 A.2d 429 (1985), cert. denied, 198 Conn. 802 (1986). "The legal conclusions or opinions stated in the special defense are not deemed admitted, but rather must flow from the subordinate facts provided." County Federal Savings Loan Assn. v. Eastern Associates, 3 Conn. App. 582, 586, 491 A.2d 401 (1985). When a special defense provides no allegations as to the essential element, the special defense is technically defective. Id.
The facts forming the basis of the second special defense come entirely from outside the pleadings. Flood plain designations and flood insurance premiums are issues which have no bearing on the underlying claim and are not pleaded in the complaint. Hutwohl concluded that he was charged an excessive amount for flood insurance premiums, but provided no basis for his premise that excessive flood insurance premiums are a valid special defense to an action seeking payment on a promissory note, therefore, the second special defense must be stricken.
Hutwohl alleges in the counterclaim that Ameriquest has harmed him by commencing a foreclosure and suing on the note in separate actions because Hutwohl must now defend two actions and there is a doubling of the security by Ameriquest. The counterclaim fails to state a cause of action and is, therefore, legally insufficient. Hutwohl cites three claims within his counterclaim, the first being a cause of action under an election of remedies defense. As stated above, the plaintiff has the right to pursue all manners of enforcement, including an action on the note and the mortgage. Second, Hutwohl claims that the plaintiff's prejudgment attachment is a doubling of security, but he cites no legal support for this position. In People's Bank v. Bilmor Building Corp., 28 Conn. App. 809, 614 A.2d 456 (1992), the court found that Connecticut law allows the plaintiff to avail itself of the commonly used procedural device of a prejudgment remedy in order to improve its chances to receive full recovery of a debt owed it. "If the mortgagee brings a foreclosure of mortgage action, and pursues a prejudgment attachment, he is not seeking an additional remedy that would be barred by 49-1 and 49-28, but is merely seeking to establish a higher priority for a remedy to which he is legally entitled under 49-14." Id., 822.
Third, Hutwohl claims harm arising out of a lien connected to the plaintiff's previous foreclosure action that was withdrawn on October 22, 2001. Under the transaction test of Practice Book § 10-10, this claim does not arise from the same transaction or transactions that are the subject of the plaintiff's complaint. "[T]he defendant's special defenses and counterclaims [must be] related to the making, validity or enforcement of the note." New Haven Savings Bank v. Laplace, 66 Conn. App. 1, 9, 783 A.2d 1174, cert. denied, 258 Conn. 942, 786 A.2d 426 (2001).
Practice Book § 10-10 provides in relevant portion: "[A]ny defendant may file counterclaims against any plaintiff and cross claims against any codefendant provided that each such counterclaim and cross claim arises out of the transaction or one of the transactions which is the subject of the plaintiff's complaint . . ."
Hutwohl's counterclaim addresses the issue of the filing of a lis pendens against his property in a prior foreclosure action and, therefore, it is alleging wrongful acts or conduct engaged in by the plaintiff outside of the actual making or enforcement of the note. The counterclaim is based on alleged misconduct by Ameriquest after the execution of the note and Ameriquest was merely availing itself of the statutory protection of a lis pendens which ". . . is intended to give constructive notice to persons seeking to purchase or encumber property after the . . . commencement of a foreclosure suit." (Internal quotation marks omitted.) First Constitution Bank v. Harbor Village Ltd. Partnership, 37 Conn. App. 698, 703, 657 A.2d 1110, cert. denied, 235 Conn. 902, 665 A.2d 901 (1995). Therefore, the counterclaim fails the transaction test and should be stricken.
For the foregoing reasons, the plaintiff's motion to strike the defendant's special defenses and counterclaim in the amended answer is granted.
Downey, J.