Opinion
No. CV 04-0200206S
August 14, 2006
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT
This foreclosure case was commenced in May 2004 with the filing of a complaint by the plaintiff lender against Robert Bridges and Amy Bridges, the owners of the equity of the property at 45 Field Point Circle in Greenwich (the "Property") and other defendants as parties claiming subordinate interests in the Property. The complaint alleges: that the defendant Robert Bridges executed a promissory Note dated July 20, 2002 pursuant to which he became obligated to repay Luxury Mortgage Corp. in the original principal amount of $4,000,000 together with interest and all costs of collection as set forth in the terms of the Note and the Mortgage; that to secure the Note the defendants Robert and Amy Bridges executed a Mortgage of the Property to Luxury Mortgage Corp. which is now held by the substitute plaintiff, Mortgage Electronic Registration Systems; that the defendant defaulted by failing to make the monthly principal and interest payment due on December 1, 2003; and that the defendant failed to cure said default, resulting in the plaintiff's election to accelerate the sums due under the Note. The defendant Robert Bridges filed an Answer, Special Defenses, Set-off and Counterclaim on October 12, 2004 in which he admits execution of the loan documents and asserts that any failure on his part to make loan payments was due to acts of the plaintiff. He has also asserted a series of special defenses and counterclaims founded on the factual allegations that the plaintiff or its servicing agent failed to cash two checks for the monthly payments due for March and April 2003. He further alleges that he suffered financial reverses in his business as a result of negative credit reporting flowing from the plaintiff's failure to accept the tendered payments.
Now before the Court is the plaintiff's Motion for Summary Judgment dated March 1, 2006 in which the plaintiff seeks a determination that there is no disputed issue of material fact as to the defendant's liability under the Note, and asks for summary judgment as to liability only. The basis of the plaintiff's motion is summarized in its supporting memorandum:
While disputing the factual and legal basis for the Defendant's claims in total, the Plaintiff bases the motion for summary judgment on the fact that the defendants, on or about April 12, 2005, entered into a Special Forbearance Agreement with the plaintiff, acting through Aurora Loan Services, its loan servicing agent. A true copy of the agreement is attached to the affidavit in support of summary judgment filed herewith. In the agreement the Plaintiff agreed to forebear from further prosecution of the foreclosure for so long as the Defendant would make certain payments as set out in the agreement. The Plaintiff further agreed to accept the payments tendered by the Defendants pursuant to the agreement, notwithstanding the acceleration of the loan and the fact that each such payment was insufficient to bring the loan current. The borrowers assumed a number of obligations under the Special Forbearance Agreement. The most significant for the purposes of this motion are contained in Paragraph 2 of the Agreement . . . In that paragraph the borrowers admit that the defendants are indebted to the plaintiff under the loan documents and" represent and acknowledge that there are no defenses, offsets, or counter claims of any nature whatsoever to any of the Loan documents." It is significant that the agreement was executed by the Defendant subsequent to occurrence of the facts asserted to support the special defenses and counterclaims and subsequent to the filing of the special defenses and counter claims.
Memorandum in Support of Summary Judgment, February 28, 2006, p. 3, 4.
The defendant Robert Bridges opposes the motion for summary judgment on the ground, inter-alia, that Practice Book § 17-44, while permitting motions for summary judgment as to complaints, counterclaims, or cross complaints, does not permit a motion for summary judgment directed to a special defense. As stated by Judge Pickett in denying a plaintiff's motion for summary judgment in Dubourg v. Osborn, 1995 Ct.Sup 7513, Docket No, CV94-0065070, Superior Court, Judicial District of Litchfield (July 5, 1995):
Practice Book § 17-44 provides: "In any action . . . any party may move for a summary judgment at any time . . . These rules shall be applicable to counterclaims and cross complaints, so that any party may move for summary judgment upon any counterclaim or cross complaint as if it were an independent action."
The decisions of the Connecticut Superior Court, including decisions of this court, are almost in unanimous agreement that a motion for summary judgment as to a special defense is improper. Gianetti v. National Crange Insurance, 11 Conn. L. Rptr. 234 (March 8, 1994, Freedman, J.); Benjamin v. Nunes, 9 Conn. L. Rptr. 143 (May 23, 1993, McDonald, J.); Espowood v. Springfield Terminal Railway Co., 9 Conn. L. Rptr. 547 (August 5, 1993, Stanley, J.); Conlam, Inc. v. Heritage Kitchens, Ltd., 6 Conn. L. Rptr. 406 (May 13, 1992, Flynn, J.); Rogers v. Daley Development Co., Inc., 3 Conn. L. Rptr. 76 (December 19, 1990, Pickett, J.); but see People's Bank v. BMI Industries, 3 CSCR 450 (April 26, 1988, Hennessey, J.) (allowing motion for summary judgment to challenge legal sufficiency of special defense when pleadings are closed). Such a motion is improper because Practice Book Sec. 379 does not provide for summary judgment on special defenses." Judgments are rendered on complaints or counterclaims, or on specific counts or counterclaims, but there is no provision under Connecticut practice for a `judgment' to be entered on a special defense." (Citation and internal quotation marks omitted.) Rogers v. Daley Development Co., Inc., supra.
This Court agrees with the Superior Court majority position as stated in Dubourg. It is evident to the Court that the prime purpose of the plaintiff's motion for summary judgment is to counter the allegations of the special defenses by establishing from the 2005 Special Forbearance Agreement that all special defenses to this action have been waived. The Special Forbearance Agreement that is not pleaded in the complaint and in fact did not exist at the time this action was commenced. Its only relevance is in the context of the special defenses. Therefore a motion for summary judgment premised on the Special Forbearance Agreement is not permitted and the motion must be denied.
Order
For the foregoing reasons the plaintiff's Motion for Summary Judgment dated March 1, 2006 (No. 164 and 168) is denied. CT Page 14880