Opinion
No. 4000413
February 1, 2005
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
FACTS
By complaint dated August 6, 2004, the plaintiff, HSBC Mortgage Corporation, alleges that the defendants, Anna Tak Suen Ho et al., have defaulted on a mortgage by virtue of nonpayment. The plaintiff alleges that the defendants failed to make installment payments commencing on April 1, 2004, and every month thereafter. The plaintiff sought, inter alia, a foreclosure of the mortgage, a deficiency judgment, and immediate possession of the mortgaged premises known as 39 Cherry Hill Road, Norwich, Connecticut.
On October 27, 2004, one of the named defendants, Liebert Sang, filed an answer and special defense in response to the plaintiff's complaint. In the special defense, the defendant asserts that he, or his authorized representatives, has paid each and every installment to date, that the plaintiff has accepted said payments, and, therefore, the defendant is not in default.
On December 1, 2004, the plaintiff filed a motion for summary judgment on the grounds that there are no genuine issues of material fact regarding the allegations in the complaint, and as a matter of law, it is entitled to judgment on its motion. The plaintiff argues, inter alia, that the defendant Sang's special defense of payment does not preclude its summary judgment motion because there are no genuine issues of material fact. In response to the plaintiff's summary judgment motion, the defendant filed an affidavit with exhibits, dated January 3, 2005. The affiant, Janny Lam, attests that she, or her representatives, submitted timely payments to the plaintiff, each month. Along with the affidavit are the copies of checks that the defendant claims to have sent to the plaintiff for the monthly payment. The affiant asserts that the checks have not been negotiated.
DISCUSSION
Practice Book § 17-49 "provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any 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 . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Citations omitted; internal quotation marks omitted.) Barrett v. Montesano, 269 Conn. 787, 791-92, 849 A.2d 839 (2004). "The existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence . . . If the affidavits and the other supporting documents [submitted by the nonmovant] are inadequate, then the court is justified in granting the summary judgment, assuming that the movant has met his burden of proof." (Internal quotation marks omitted.) DeCorso v. Watchtower Bible Tract Society of New York, Inc., 78 Conn.App. 865, 871, 829 A.2d 38, cert. denied, 266 Conn. 931, 837 A.2d 805 (2003).
"[Section 17-46] sets forth three requirements for consideration of affidavits submitted in a summary judgment proceeding. The material must: (1) be based on `personal knowledge'; (2) constitute facts that would be admissible at trial; and (3) affirmatively show that the affiant is competent to testify to the matters stated in the affidavit." Barrett v. Danbury Hospital, 232 Conn. 242, 251, 654 A.2d 748 (1995). The court may consider not only the facts presented by the parties' affidavits and exhibits, but also the "inferences which could be reasonably and logically drawn from them . . ." United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 381, 260 A.2d 596 (1969).
A Special Defenses
The plaintiff argues in its memorandum of law in support of its motion that it is entitled to summary judgment despite the defendant pleading a special defense, in that there are no disputed issues of material fact. "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 . . . Payment is a valid special defense in a foreclosure action . . . See . . . New England Savings Bank v. Bedford Realty Corp., 246 Conn. 594, 606 n. 10, 717 A.2d 713 (1998) ([p]ayment is an affirmative defense that must be proved by the defendant.)" (Citations omitted; internal quotation marks omitted.) Homecomings Financial Network, Inc. v. Starbala, 85 Conn.App. 284, 288-89, 857 A.2d 366 (2004). "[I]t is appropriate for a court to render summary judgment in favor of a plaintiff when the special defenses asserted by a defendant are either not legally viable or do not present a genuine issue of a material fact . . . Reciprocally, the filing of a special defense by a defendant does not prevent the court from granting summary judgment on a complaint in favor of the defendant." (Citations omitted; internal quotation marks omitted.) Kazlon Communications, LLC v. American Golfer, Inc., 82 Conn.App. 593, 596, 847 A.2d 1012 (2004).
In its supporting memorandum of law, the plaintiff cites Appellate Court cases that have upheld summary judgments despite special defenses being pleaded by the defendant, e.g., New Haven Savings Bank v. LaPlace, 66 Conn.App. 1, 10 n. 11, 783 A.2d 1174, cert. denied, 258 Conn. 942, 786 A.2d 426 (2001) (court upheld the plaintiff's summary judgment motion in a foreclosure matter despite special defenses asserting fiduciary duty, which included a payment defense, after finding that the defendant had not made payments for over a year); Southbridge Associates, LLC v. Garofalo, 53 Conn.App. 11, 15-17, 728 A.2d 1114, cert. denied, 249 Conn. 919, 733 A.2d 229 (1999) (the court, after finding that the defendant admitted to being in default of the mortgage, upheld a summary judgment for the plaintiff finding that defendant's special defenses of breach of implied covenant of good faith and fair dealing, and fiduciary duty, did not relate to the making, validity or enforcement of the notes); Bank of Boston Connecticut v. Scott Real Estate, Inc., 40 Conn.App. 616, 623, 673 A.2d 558, cert. denied, 237 Conn. 912, CT Page 1842 675 A.2d 884 (1996) (the court upheld plaintiff's summary judgment motion finding, inter alia, that defendant's special defenses asserting that plaintiff's failure to give notice of foreclosure did not create a genuine issue of fact because no such obligation existed); and LaSalle National Bank v. Freshfield Meadows, LLC, 69 Conn.App. 824, 834, 798 A.2d 445 (2002) (in a foreclosure action, the court found that the defendant had been in default for more than eight months, and its special defense of breach of implied covenant and good faith where plaintiff refused its payments did not create a genuine issue of material fact to overcome the summary judgment motion.) The present case, however, can be distinguished from the plaintiff's cited cases.
In the cases cited by the plaintiff, the defendants either admitted to being in default, or were found by the court to be in default of a mortgage. In the present case, defendant Sang asserts that payments were made timely each month and that he was not in default. During the months in which the plaintiff claims there was non-payment, the defendant provides evidence demonstrating that there were timely checks tendered to the plaintiff that were never negotiated. Therefore, it is submitted that the cases cited by the plaintiff do not control the particular facts of the present case. In addition, as discussed above, because the special defense of payment is a valid defense in a foreclosure matter, the court must consider its viability and impact in this summary judgment proceeding.
B Defendant's Affidavit
It bears reiteration, that in a motion for summary judgment, "[t]he existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence . . . If the affidavits and the other supporting documents [submitted by the nonmovant] are inadequate, then the court is justified in granting the summary judgment, assuring that the movant has met his burden of proof." (Internal quotation marks omitted.) DeCorso v. Watchtower Bible Tract Society of New York Inc., supra, 78 Conn.App. 865, 871. Practice Book § 17-46 states that "[s]upporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto."
In the present case, the defendant submits an affidavit in which the affiant, Janny Lam, submits under oath, among other things, copies of checks, carbon duplicate checks, and a summary account statement showing her checking withdrawals and deposits (exhibits D-N). The photocopied checks or carbon duplicate checks represent the checks tendered to the plaintiff for the months of January 2004 through August 2004. Plaintiff asserts that the defendant did not make a payment for the month of April, nor any month thereafter. However, submitted with the defendant's affidavit are exhibits containing carbon duplicate checks for the months of April 2004, May 2004, and June 2004, each made payable to "HSBC" in the amounts of $1,034.85, respectively.
In Homecomings Financial Network, Inc. v. Starbala, supra, 85 Conn.App. 284, the defendants appealed a trial court judgment of a strict foreclosure rendered in favor of the plaintiff. The defendants argued, inter alia, that the trial court improperly concluded that the defendants' special defense of payment was legally insufficient to withstand a motion to strike, and the trial court failed to consider certain genuine issues of material fact in granting the plaintiff's summary judgment motion. The court held that the "defendants' special defense alleges that they tendered timely payment of the mortgage . . . and that such payment was refused . . . As noted, the defense of payment is a legally sufficient defense in a foreclosure action, and whether payment was tendered is a question of fact appropriately decided by the trier of fact." (Emphasis added.) Id., 289.
The Appellate Court found the defendants, in their special defense, had set forth sufficient facts to allege the defense of payment, and the trial court had incorrectly granted the motion to strike the defense in the plaintiff's favor. The court went on to hold that "[t]he [trial] court's granting of the motion for summary judgment was based on the state of the pleadings after the special defense was struck improperly. Because a consideration of the valid defense of payment likely would impact the court's determination on the motion for summary judgment, the court's granting of the motion for summary judgment was improper." Id., 290.
In the present case, defendant Sang has proffered sufficient evidence to demonstrate that payment of the mortgage was timely made. Therefore, a genuine issue of material fact exists as to whether the payments were tendered or not.
ORDER
The plaintiff's motion for summary judgment dated December 1, 2004 (#110) is hereby denied.
Devine, J.