Opinion
No. HHD CV09-5029746 S
April 8, 2010
MEMORANDUM OF DECISION RE MOTION TO STRIKE DEFENDANT'S COUNTERCLAIM (#108)
In this foreclosure action the Defendant, Carol P. Presutti, has filed an answer with special defenses and a two-count counterclaim. In Count One of the counterclaim, she claims that the Plaintiff, BAC Home Loans Servicing, L.P., agreed to a loan modification but did not honor it. In Count Two, she claims that this conduct of the Plaintiff violates the Connecticut Unfair Trade Practices Act. The Plaintiff has moved to strike both counts of the counterclaim claiming that the counts are legally insufficient for various reasons.
The Plaintiff claims in its Motion to Strike that Count One of the counterclaim does not arise out the same transaction as the complaint. It has been held that counterclaims that do not attack the making, validity, or enforcement of the note or mortgage, are irrelevant to a foreclosure action. New Haven Savings Bank v. LaPlace, 66 Conn.App. 1, 11, cert. denied, 258 Conn 942 (2001). But here Count One of the counterclaim alleges that the Plaintiff agreed to a loan mortgage modification which does go to the making of the note and mortgage. Therefore the Motion to Strike Count One of the counterclaim is denied for the reasons stated by the court in ALI, Inc. v. Veronneau, Superior Court, Judicial District of Waterbury, Docket No. 126431 (Kulawiz, J., Oct. 11, 1996) [ 17 Conn. L. Rptr. 677]. There the court stated: "[A]llegations of modification directly attack the validity or enforcement of the original note or mortgage[,] thus, a special defense alleging modification is properly raised in a foreclosure proceeding. Home Savings Bank of America v. Santilli, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. 130634 (March 2, 1995) (D'Andrea, J.). In Shawmut Bank v. Wolfley, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. 130109 (January 24, 1994) (Dean, J., 9 CSCR 216), the court refused to strike a foreclosure defendant's counterclaim alleging modification because the alleged modification necessarily involves the making, validity and enforcement of the original note and mortgage." (Internal quotation marks omitted.)
The Plaintiff moves to strike Count Two of the counterclaim for the reason that it does not satisfy the three elements of the "cigarette rule." The court agrees with the Defendant that the allegations of Count Two of the counterclaim are sufficient to support a CUTPA claim pursuant to the court's decision in Gebbie v. Cadle Company, 49 Conn.App. 265, 279 (1998). There the court held that: "In this case, the trial court concluded that Cadle's refusal to honor and effectuate the loan restructure agreement and its related conduct, including failing to release the foreclosure attachments and lis pendens, constituted a violation of [CUTPA]. The court took particular note of the clear acknowledgment that [Cadle] stepped into the shoes of [ALI] with full knowledge of the agreement by Cadle. The record clearly supports this conclusion. Cadle openly acknowledges the existence of an agreement by which it is bound yet refuses to honor. Its actions forced the plaintiff to seek redress in the courts to have the agreement enforced. This is the type of behavior that CUTPA seeks to discourage . . . We affirm the trial court's finding that a CUTPA violation occurred." (Internal quotation marks and citations omitted.) Similarly here, the allegations that the Plaintiff entered into a loan mortgage modification which it refused to honor, are sufficient to support a CUTPA claim. Therefore the Motion to Strike Count Two of the counterclaim is denied.