Opinion
No. CV 08-5004992 S
September 3, 2010
MEMORANDUM OF DECISION
On July 31, 2008, the plaintiff, Household Realty Corporation, filed a single-count complaint against the defendants Philip Kujawski, Pamela J. Kujawski, A/K/A Pamela Kujawski, F/K/A Pamela Litch, Middlesex Hospital, and Capital One Bank. In its complaint, the plaintiff alleges the following facts. On June 20, 2003, the defendants owed the plaintiff $219,788.08, evidenced by a promissory note dated on said date, payable to the order of the plaintiff with interest, in monthly installments of principal and interest. To secure the note, the defendants mortgaged to the plaintiff the premises known as 37 Maynard Road, Old Saybrook, Connecticut. The plaintiff is the holder of the note and mortgage, and the unpaid balance of the note is $213,649.57, plus interest from February 25, 2008, late charges and collection costs. Said note and mortgage are in default due to nonpayment of installments of principal and interest due on March 25, 2008, and each month thereafter, and the plaintiff has declared the entire balance of said note due and payable. The defendants are the owners of record and in possession of said property.
Neither Middlesex Hospital nor Capital One Bank entered an appearance. In this memorandum, Philip Kujawski and Pamela J. Kujawski, a/k/a Pamela Kujawski, f/k/a Pamela Litch, will be referred to as "the defendants."
Also, the complaint alleges the existence of tax liens held by the town of Old Saybrook and judgment liens held by Middlesex Hospital and Capital One Bank, to which allegations the defendants plead insufficient knowledge in their answer.
On November 3, 2008, the defendants filed their answer and three special defenses. The defendants, by way of their answer, admit that they owed the plaintiff $219,788.08 on June 20, 2003, that they mortgaged the property at issue to the plaintiff and that they are the owners and are in possession of the property. The defendants deny that the plaintiff is the holder of the note and mortgage, that the unpaid balance of the note is $213,649.57 plus interest from February 25, 2008, late charges and collection costs and that the note and mortgage are in default. The defendants claim insufficient knowledge regarding the other allegations of the complaint.
The defendants' first special defense alleges that the defendants had cured any default when they paid a portion of the debt on or about May 2008, and that they are entitled to a setoff for said amount. The second special defense alleges that the plaintiff failed to give the defendants adequate notice prior to acceleration, as required under the note and mortgage, specifying: the breach, the action required to cure the breach, a date not less than ten days from the date of the notice by which such breach must be cured, the fact that failure to cure on or before such date may result in acceleration in foreclosure or sale of the property, the right to reinstate after acceleration and the right to assert in court the nonexistence of default or any other defense to acceleration and foreclosure or sale. The third special defense alleges that the doctrines of equitable estoppel and unclean hands should prevent the plaintiff from enforcing the note and mortgage.
On September 30, 2009, the defendants filed a three-count counterclaim. The first count alleges breach of contract, the second count alleges intentional or negligent misrepresentation and the third count alleges a Connecticut Unfair Trade Practices Act (CUTPA) claim.
On March 12, 2010, the plaintiff filed a motion to strike the defendants' special defenses and counterclaims. The motion is accompanied by a memorandum of law. The plaintiff moves to strike the special defenses on the grounds that they do not arise from the making, validity or enforcement of the note and mortgage.
The plaintiff moves to strike the defendants' counterclaims on the grounds that they do not arise from the making, validity or enforcement of the note and mortgage, do not arise from the same transaction as the complaint and were not properly filed with the court. On April 29, 2010, the defendants filed a memorandum in opposition to the plaintiff's motion to strike their special defenses and counterclaims.
"Whenever any party wishes to contest . . . the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, or of any one or more counts thereof, to state a claim upon which relief can be granted, or . . . 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, that party may do so by filing a motion to strike the contested pleading or part thereof." Practice Book § 10-39(a). "A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court . . . [The court takes] the facts to be those alleged in the [pleading] . . . and [the court construes] the [pleading] in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).
A Special Defenses
In its motion to strike the defendants' special defenses and counterclaims, the plaintiff has moved to strike all three of the defendants' special defenses. In its memorandum in support of the motion to strike, the plaintiff argues that the defendants' special defenses "are predicated on claims that occurred after the origination of the note and mortgage and do not attack the making, validity or enforcement of the note and mortgage," and, therefore, fail as a matter of law. In their memorandum in opposition to the motion to strike, the defendants counter that post-execution conduct of the mortgagee may be directly related to the enforcement of the note or mortgage, and that, but for the plaintiff's alleged misrepresentations, the defendants would not be in default under the terms of the note and mortgage.
The plaintiff has moved to strike the defendants' special defenses only on the ground that they do not relate to the making, validity or enforcement of the note and mortgage. Therefore, the court need not address whether the defendants have sufficiently pleaded the legal elements for each claim. See Housing Development Fund, Inc. v. 130 Main Street Development, LLC, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 08 5007937, n. 1 (March 26, 2009, Mintz, J.).
"Historically, defenses to a foreclosure action have been limited to payment, discharge, release or satisfaction . . . or, if there had never been a valid lien . . . 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 . . . A valid special defense at law to a foreclosure proceeding must be legally sufficient and address the making, validity or enforcement of the mortgage, the note or both . . . Where the plaintiff's conduct is inequitable, a court may withhold foreclosure on equitable considerations and principles . . . [O]ur 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 . . . Other equitable defenses that our Supreme Court has recognized in foreclosure actions include unconscionability . . . abandonment of security . . . and usury." (Internal quotation marks omitted.) Fidelity Bank v. Krenisky, 72 Conn.App. 700, 705-06, 807 A.2d 968, cert. denied, 262 Conn. 915, 811 A.2d 1291 (2002); see Practice Book § 10-50. The rationale behind the making, validity or enforcement limitation is that "special defenses which are not limited to the making, validity or enforcement of the note or mortgage fail to assert any connection with the subject matter of the foreclosure action and as such do not arise out of the same transaction as the foreclosure action." (Internal quotation marks omitted.) Berkeley Federal Bank Trust v. Rotko, Superior Court, judicial district of Fairfield, Docket No. CV 94 0318648 (January 25, 1996, West, J.).
"While the Appellate Courts have not adopted parameters regarding the extent of the `making, validity or enforcement' limitation on special defenses, the issue has been addressed by the Superior Court. Some Superior Court judges have construed the limitation to bar special defenses or counterclaims relying on `acts or procedures' of the mortgagee, `behavior of the mortgagee,' and events developing post-execution and throughout `the course of the relationship' between the mortgagor and mortgagee . . ." (Citations omitted.) Housing Development Fund, Inc. v. 130 Main Street Development, LLC, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 08 5007937 (March 26, 2009, Mintz, J.). "[W]hile this construction of `making, validity or enforcement' has been utilized by Superior Court judges for well over a decade . . . it has not been adopted by our Supreme Court or Appellate Court. It is also noted that some Superior Court judges have rejected a construction of `making, validity or enforcement' that prevents a court from considering post-execution conduct of the mortgagee." (Citation omitted.) Liberty Bank v. New London Limited Partnership, Superior Court, judicial district of New London, Docket No. CV 4005236 (May 1, 2007, Devine, J.) ( 43 Conn. L. Rptr. 326).
"It appears . . . that, notwithstanding the language used by some Superior Court decisions, a court may consider the mortgagee's conduct throughout the course of the parties' relationship. The basis of this conclusion is three-fold. First, due consideration must be given to the broad equitable powers of the trial court. An action of foreclosure is peculiarly an equitable action . . . Hence, the court may consider all relevant circumstances to ensure that complete justice is done . . . Second, by definition, some recognized special defenses necessarily involve post-execution behavior of the mortgagee . . . Third, our Supreme Court and Appellate Court have clearly taken into consideration post-execution conduct of the parties when evaluating defenses to a foreclosure action . . . Simply stated, allowing a defendant to craft a defense that is based on facts associated with the mortgagee's post-execution behavior is not inimical to the requirement that a special defense in a foreclosure action relate to the `making, validity or enforcement' of the note or mortgage. Such behavior of the mortgagee throughout the course of the relationship may be directly related to the `enforcement' of the note or mortgage. That is, given an appropriate factual predicate, the court may conclude that it would be inequitable to allow enforcement in light of the mortgagee's behavior." (Citations omitted; internal quotation marks omitted.) Liberty Bank v. New London Limited Partnership, supra, 43 Conn. L. Rptr. 326.
Indeed, the Supreme Court has held that post-closing conduct may provide the basis for a defense to foreclosure. Thompson v. Orcutt, 257 Conn. 301, 316, 777 A.2d 670 (2001). Thompson v. Orcutt involved post-execution fraud committed by the plaintiff in bankruptcy proceedings, which fraud induced the bankruptcy trustee to abandon the property. Id. The Supreme Court held that the trial court had properly applied the clean hands doctrine to prevent the plaintiff from foreclosing the mortgage because "[t]he plaintiff's entire cause of action to foreclose the mortgage in [the] case [was] premised on that fraud." Id. See also Willow Funding Co., L.P. v. Grencom Associates, 63 Conn.App. 832, 779 A.2d 174 (2001) (binding agreement to refinance debt may form basis for special defense of unclean hands in a foreclosure action). In Morgera v. Chiappardi, 74 Conn.App. 442, 457, 813 A.2d 89 (2003), in taking a broad view of the making, validity or enforcement limitation, the court observed "[w]e have stated that [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 . . . [E]quitable remedies are not bound by formula but are molded to the needs of justice." (Citations omitted; emphasis in original; internal quotation marks omitted.) "Simply because . . . allegations concern events after the execution of the mortgage does not make the claims automatically meritless . . . Indeed, by definition, the `enforcement' of a mortgage may involve conduct occurring after the execution of the mortgage." Ocwen Federal Bank FSB v. Waller, Superior Court, judicial district of Fairfield, Docket No. CV 03 0401138 (March 16, 2004, Stevens, J.). See also Fleet National Bank v. Squillacote, Superior Court, judicial district of New Britain, Docket No. CV 99 0497487 (October 30, 2003, Cohn, J.) ( 36 Conn. L. Rptr. 270) ("the manner of collection of this note in default does impact the enforcement of the note, and [the court] will proceed to consider the equitable defenses on their merits").
First Special Defense CT Page 17415
Special defenses arising from the mortgage documents themselves are not invalid for failing to address the making, validity or enforcement of the mortgage or note. Morequity, Inc. v. Dunn, Superior Court, judicial district of New London, Docket No. 549371 (September 15, 2000, Hurley, J.T.R.) [ 28 Conn. L. Rptr. 244]. In Morequity, Inc. v. Dunn, where evidence supported a conclusion that the defendant was entitled to reinstatement of the mortgage by virtue of its tender of payment of the amounts past due, the court held the following special defenses to be valid: the defendants tendered payment sufficient to cure any alleged default and the plaintiff refused to accept the payment, the defendants tendered payment sufficient to invoke their right to reinstate under the terms of the mortgage and the plaintiff refused to reinstate, and the plaintiff's actions in refusing to accept payment made the foreclosure action inequitable. Id. The court reasoned that "each of the special defenses amount[ed] to a claim that the plaintiff breached its duties under the language of the note and mortgage, thereby depriving the defendants of their right, under paragraph 18 of the mortgage, `to have enforcement of this Security Instrument discontinued . . .' The judges of the Superior Court have held that special defenses arising from the terms of the mortgage documents themselves are valid defenses in a foreclosure action." Id. In Ameriquest Mortgage Co. v. Dunn, Superior Court, judicial district of New London, Docket No. CV 98 0549002 (June 9, 1999, Martin, J.), the court held that a special defense went directly to the enforceability of the subject note where it stated that the plaintiff "breached its obligation under the terms of the note and mortgage in that it failed to permit a reinstatement of the mortgage as set forth in the operative loan documents." (Internal quotation marks omitted.)In the present case, the defendants' first special defense asserts that "[t]he defendants had cured any default when a portion of the debt was paid and satisfied by the defendants on or about May of 2008; and [d]efendants are further entitled to a setoff for said amount." The defendants' second special defense alleges that the note or mortgage required the plaintiff to present a date not less than ten days after notice of breach by which the breach may be cured, and must inform the borrower of the right to reinstate after acceleration. Reading the allegations of the second special defense in conjunction with the assertion found in the first special defense, and taking them in the light most favorable to sustaining the special defenses, the note and mortgage entitled the defendants to a right to cure and to reinstatement. Denial of such rights prior to acceleration and foreclosure, respectively, amounts to a breach of the terms of the note and mortgage, and the first special defense thus relates to enforcement of the mortgage documents.
Practice Book § 10-51 provides, in relevant part: "Any statement of a matter of defense resting in part upon facts pleaded in any preceding statement in the same answer may refer to those facts as thus recited, without otherwise repeating them."
Further, setoff as a special defense is proper even if, technically, the matter might better have been raised as a counterclaim. See 225 Associates v. Connecticut Housing Finance Authority, 65 Conn.App. 112, 121, 782 A.2d 189 (2001) (holding that escrowed funds could be returned to defendant under claim of setoff, despite improper pleading of setoff by means of special defense instead of counterclaim, especially in light of fact that plaintiff was on notice of claim and suffered no prejudice). "Equitable setoff applies to cases where, because of the nature of the claim or the situation of the parties, justice cannot be obtained by a separate action." (Internal quotation marks omitted.) Housing Development Fund, Inc. v. 130 Main Street Development, LLC, supra, Superior Court, Docket No. CV 08 5007937. If it is true that the plaintiff obtained funds from the defendants by misrepresenting its intention to permit cure of the alleged breach, any amount the defendants paid in reliance on this misrepresentation would affect the mortgage debt, and therefore it would not be possible to obtain justice by a separate action.
Second Special Defense
"It is well established that [n]otices of default and acceleration are controlled by the mortgage documents . . . Where the terms of the note and mortgage require notice of default, proper notice is a condition precedent to an action for foreclosure." (Internal quotation marks omitted.) Fidelity Bank v. Krenisky, supra, 72 Conn.App. 706-07. "Several superior courts have held that the failure to give proper notice of default and acceleration in contravention of the terms of the note or mortgage is a defense to a foreclosure action. See, e.g., Midconn Bank v. Mattera, Superior Court, judicial district of Hartford-New Britain at New Britain, Docket No. 461831 (January 16, 1997, Holzberg, J.) [ 19 Conn. L. Rptr. 56]; Ostrager v. Hasiuk, Superior Court, judicial district of Tolland at Rockville, Docket No. 45414 (May 9, 1991, Dunn, J.)." Knutson Mortgage Corp. v. Williams, Superior Court, judicial district of Fairfield, Docket No. CV 96 0334486 (September 26, 1997, West, J.) (denying motion to strike special defense of inadequate notice of default or acceleration where defendant alleged plaintiff sent "abusive harassing, fraudulent, deceptive and/or misleading communications . . . which failed to comply with the notice requirements contained in the note and [m]ortgage" [internal quotation marks omitted]). See also G.E. Capital Mortgage Services, Inc. v. Baker, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 98 0167089 (July 7, 1999, Hickey, J.) (stating "the demand letter goes to the enforcement of the note/mortgage" and upholding special defense that mortgage provided for notice with sixty-day cure period but notice of default provided thirty days to cure).
In their second special defense, the defendants allege that the plaintiff failed to provide them with adequate notice regarding breach, cure and reinstatement, as required under the note or mortgage. As discussed above regarding the first special defense, special defenses arising from the note and mortgage themselves are not invalid for failure to address the making, validity or enforcement of the note and mortgage. The second special defense alleges that the plaintiff failed to fulfill a condition precedent to acceleration or foreclosure under the terms of the mortgage document, and thus relates to the enforcement of the note or mortgage.
Third Special Defense
Estoppel is a recognized equitable defense in foreclosure actions. See American Business Credit, Inc. v. DL Auto Body and Towing, Inc., Superior Court, judicial district of New Britain, Docket No. CV 01 0507665 (November 14, 2002, Berger, J.); Ocwen Federal Bank, FSB v. Rivas, Superior Court, judicial district of Fairfield, Docket No. CV 99 0368135 (February 21, 2002, Stevens, J.). "[T]he doctrine of equitable estoppel . . . requires proof of two essential elements: [First] the party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief and [second] the other party must change its position in reliance on those facts, thereby incurring some injury . . . It is fundamental that a person who claims an estoppel must show that he has exercised due diligence to know the truth, and that he not only did not know the true state of things but also lacked any reasonably available means of acquiring knowledge." (Citation omitted; internal quotation marks omitted.) Celentano v. Oaks Condominium Assn., 265 Conn. 579, 614-15, 830 A.2d 164 (2003). The doctrine of unclean hands is also a valid special defense in a foreclosure action. See Thompson v. Orcutt, supra, 257 Conn. 301; Willow Funding Co., L.P. v. Grencom Associates, supra, 63 Conn.App. 832. "The party seeking to invoke the clean hands doctrine to bar equitable relief must show that his opponent engaged in wilful misconduct with regard to the matter in litigation." (Internal quotation marks omitted.) Monetary Funding Group, Inc. v. Pluchino, 87 Conn.App. 401, 407, 867 A.2d 841 (2005).
In Ocwen Federal Bank FSB v. Waller, supra, Superior Court, Docket No. CV 03 0401138, a foreclosure action, the court denied a motion to strike special defenses including breach of contract, unclean hands and equitable estoppel. The defendants alleged that the plaintiff's failure to calculate the debt correctly, to accept timely payments and to credit payments properly had contributed to or caused the default on which the plaintiff had based acceleration of the debt. Id. The court observed that the allegations, which it must assume to be true, involved claims of fraud and bad faith, which may be entertained by a court of equity, despite the plaintiff's argument that the special defenses "post date the making, validity or enforcement of the mortgage." (Internal quotation marks omitted.) Id. In Knutson Mortgage Corp. v. Williams, supra, Superior Court, Docket No. CV 96 0334486, the court denied a motion to strike the special defense of unclean hands where the defendant claimed that the plaintiff failed to accelerate the loan in accordance with the terms of the note and mortgage and sent communications that failed to comply with the notice requirements contained in the note and mortgage. Id.
In the present case, the defendants' third special defense alleges that the doctrines of unclean hands and equitable estoppel should prevent the plaintiff from enforcing the note and mortgage because "the plaintiff's claim grows out of, depends upon, or is inseparably connected with its own prior misrepresentations, unfair, and/or deceptive actions." As a basis for this claim, the defendants allege that the plaintiff represented to them by telephone in the spring of 2008 that "their mortgage note was in arrears and induced the defendants to believe in the existence of the arrearage and to pay the plaintiff the sum of approximately $5,300.00 on or about May 2008." The defendants allege that they believed that if they paid the sum requested, "said payment would cure any default and arrearage under the terms of the note and mortgage," and that they "would not have made said payment had they known that the plaintiff still intended to proceed with the foreclosure action." If such alleged representation occurred, subsequent refusal to accept the defendants' payment as cure determined whether the defendants remained in default, and as such affected enforcement of the note and mortgage.
The defendants also allege that the plaintiff had engaged in similar practices before, and had failed to provide the defendants with coupons or monthly statements showing accounting of debits or credits from the start of the loan, with the exception of year end statements, despite the defendants' repeated requests for written documentation of accounting. The defendants further allege that the plaintiff's employees had harassed them by phone at various times since the signing of the note and mortgage, "repeatedly asking for payments without providing written documentation verifying how the payments claimed due were determined." These allegations, taken in the light most favorable to sustaining the special defense, assert a pattern of inequitable conduct throughout the plaintiff's collection of the note, and thereby go directly to the enforcement of the note. If the defendants prove that but for the plaintiff's conduct in collecting the note the alleged default would not have occurred or would have been cured, it would be inequitable to allow the plaintiff to proceed in foreclosure.
In the present case, all three of the defendants' special defenses allege that the plaintiff either breached the terms of the note and mortgage in enforcing the note or contributed to the alleged default through inequitable conduct. The special defenses relate to the manner of collection of the note and are thus directly related to the enforcement of the note or mortgage. The motion to strike is denied as to the special defenses.
B Counterclaims
In its motion to strike the defendants' special defenses and counterclaims, the plaintiff has moved to strike all three of the defendants' counterclaims on the grounds that they "do not arise from the same transaction and do not arise from the making, validity or enforcement of the note and mortgage," and were not properly filed in accordance with the requirements of the Practice Book. The plaintiff argues in its memorandum that "the court must construe all counterclaims not directly contesting the validity of the security instrument itself as collateral and not part of the same underlying transaction from which the complaint originated." The plaintiff also argues that the purpose of the rules of practice regarding pleading of counterclaims "is to allow the court and other parties to address the legal and procedural propriety of amending the pleading," and that the defendants did not purport to comply with these rules by either asserting the counterclaims in their answer or following the procedures of Practice Book § 10-60 to amend their answer. In their memorandum in opposition, the defendants concede that they did not seek leave of the court prior to filing their counterclaims, but that there was no prejudice to the plaintiff who did not file any objection or responsive pleading until filing the motion to strike the special defenses and counterclaims. The defendants have requested that the court rule on the merits of the counterclaims regardless.
Practice Book § 10-10 provides, in relevant part: "In any action for legal or equitable relief, any defendant may file counterclaims against any plaintiff . . . provided that each such counterclaim . . . arises out of the transaction or one of the transactions which is the subject of the plaintiff's complaint . . ." "In any case in which the defendant has either in law or in equity or in both a counterclaim, or right of setoff, against the plaintiff's demand, the defendant may have the benefit of any such setoff or counterclaim by pleading the same as such in the answer, and demanding judgment accordingly; and the same shall be pleaded and replied to according to the rules governing complaints and answers." Practice Book § 10-54. "A counterclaim is properly filed in the answer." Avis Rent-A-Car System, Inc. v. Crown High Corp., 165 Conn. 608, 614, 345 A.2d 1 (1973). "With her answer, the defendant also filed properly a counterclaim in three counts." Home Oil Co. v. Todd, 195 Conn. 333, 340, 487 A.2d 1095 (1985). "A counterclaim is ordinarily considered part of an answer, and adding a counterclaim has the effect of amending the answer." Alderman Alderman v. Millbrook Owners' Assn., Inc., Superior Court, judicial district of Hartford, Docket No. CV 00 0802857 (August 27, 2001, Beach, J.) (striking counterclaim not filed in accordance with dictates of Practice Book § 10-60). Practice Book § 10-60(a)(3) provides, in relevant part: "[A] party may amend his or her pleadings . . . at any time subsequent to that stated in [Practice Book § 10-59] . . . [b]y filing a request for leave to file such amendment, with the amendment appended, after service upon each party . . . and with proof of service endorsed thereon. If no objection thereto has been filed by any party within fifteen days from the date of the filing of said request, the amendment shall be deemed to have been filed by consent of the adverse party . . ."
Practice Book § 10-59 provides: "The plaintiff may amend any defect, mistake or informality in the writ, complaint or petition and insert new counts in the complaint, which might have been originally inserted therein, without costs, during the first thirty days after the return day."
The trial court has wide discretion in granting or denying amendments before, during, and even after trial. Conference Center Ltd v. TRC, 189 Conn. 212, 216-17, 455 A.2d 857 (1983). "A trial court has wide discretion in granting or denying amendments to the pleadings and rarely will [a reviewing] court overturn the decision of the trial court." (Internal quotation marks omitted.) Wellington Systems, Inc. v. Redding Group, Inc., 49 Conn.App. 152, 182, 714 A.2d 21, cert. denied, 247 Conn. 905, 720 A.2d 516 (1998). However, "[i]n the absence of a properly filed request to amend, the trial court [is] not called upon to exercise its discretion, and it correctly [declines], as a matter of law, to consider the purported amendment." Pekera v. Purpora, 273 Conn. 348, 357, 869 A.2d 1210 (2005). See also E. Greylock, LLC v. OBC Associates, Inc., Superior Court, complex litigation docket at Stamford, Docket No. X08 CV 04 4002173 (May 4, 2007, Jennings, J.) (where plaintiff filed motion for leave to amend complaint after filing amended complaint, court denied motion and observed "Practice Book § 10-60 clearly contemplates leave of the court as a requirement before filing the amendment. There is no language in § 10-60 which could be construed as permitting a retroactive ruling" [emphasis in original]); Lance v. Lyman, Superior Court, judicial district of New London, Docket No. 549853 (November 17, 2000, Hurley, J.T.R.) (holding that issue of whether to allow amendment not properly before the court where defendants simply filed revised amended answer, special defenses and counterclaims without first obtaining leave of court).
"A motion to strike is the proper procedure to attack the legal sufficiency of an amended pleading that is filed in violation of Practice Book § 10-60 . . ." (Citation omitted.) Daniels v. Felner Corp., Superior Court, judicial district of Fairfield, Docket No. CV 00 0378370 (May 13, 2002, Sheedy, J.). See Northeast Gunite Grouting Corp. v. Chapman, 20 Conn.App. 201, 204, 565 A.2d 256 (1989) (holding that trial court did not err in striking special defenses that were not filed in compliance with Practice Book rule for amendment); Sunshine v. Zeeman, Superior Court, judicial district of New London, Docket No. CV 09 4009590 (February 17, 2010, Parker, J.T.R.) (striking counterclaim because it was not properly pled in an answer); Ouellette v. Provencher, Superior Court, judicial district of Tolland, Docket No. CV05 5000143 (March 1, 2007, Sferrazza, J.) [ 42 Conn. L. Rptr. 878] (referring to previously stricken "freestanding `counterclaim,'" filed without consent or leave of court, as a "purported pleading").
But see Sovereign Bank v. Licata, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 02 0188146 (March 31, 2005, Dooley, J.) (construing filing of special defenses and counterclaims as request for permission to file same as an amended answer and overruling objection to the filing). It is submitted that the decision in Sovereign Bank v. Licata is not persuasive because it controverts the rules of practice regarding the filing of counterclaims and predates the ruling in Pekera v. Purpora.
In the present case, the defendants filed their answer on November 3, 2008. On September 30, 2009, they filed a freestanding three-count counterclaim without order of the court, consent of the adverse party or request for leave to file such amendment of their answer. The counterclaims were not properly filed. Accordingly, the motion to strike is granted as to the defendants' counterclaims without consideration of their merits.