Opinion
No. CV04-4001051
May 25, 2005
This is a foreclosure action. The Defendants, Joseph A. Leslie and Meg E. Leslie, have moved to strike allegations 1 through 8 of the complaint in this matter, that is, the entire complaint. The motion alleges that: the Plaintiff, by attempting to collect a debt, is acting as a consumer collection agency within this state and is therefore in violation of General Statutes § 36a-801; the Plaintiff by attempting to foreclose prior to fulfilling mandatory prerequisites to foreclosure, is in violation of 24 C.F.R. §§ 203.604 and 203.606; and the Plaintiff lacks standing because it comes to the Court with unclean hands.
"`The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted.' (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997); see Practice Book § 10-39. `A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court . . . We take the facts to be those alleged in the . . . and we construe the complaint in the manner most favorable to sustaining its legal sufficiency . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.' (Citations omitted; internal quotation marks omitted.) Vacco v. Microsoft Corp., 260 Conn. 59, 64-65, 793 A.2d 1048 (2002)." Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498 (2003).
Thus the court must limit its review of the motion to strike to the facts alleged in the complaint. Here the Plaintiff alleges that the Leslie Defendants owed Countrywide Home Loans, Inc. certain sums as evidenced by a promissory note; that by deed, to secure said note, they mortgaged certain premises to Mortgage Electronic Registration Systems, Inc.; that the Plaintiff is the holder of the note and mortgage; and that said note and mortgage are now in default. In order to state a prima facie case in a foreclosure action the Plaintiff has to allege and prove that it was the owner of the note and mortgage and that the Defendants have defaulted on the note. Webster Bank v. Flanagan, 51 Conn.App. 733, 750-51 (1999). The Plaintiff has done so here.
As to the first and second grounds of the Motion to Strike the Defendants submit arguments based on facts not alleged in the complaint regarding the status of the Plaintiff and its alleged regulatory obligation to conduct a face to face interview with the mortgagor before foreclosure is instituted. On a motion to strike the court does not resolve factual issues but is limited to those alleged in the complaint. "In deciding upon a motion to strike or a demurrer, a trial court must take the facts to be those alleged in the complaint; Blancato v. Feldspar Corporation, 203 Conn. 34, 36, 522 A.2d 1235 (1987); DeMello v. Plainville, 170 Conn. 675, 677, 368 A.2d 71 (1976); and `cannot be aided by the assumption of any facts not therein alleged.' Fraser v. Henninger, 173 Conn. 52, 60, 376 A.2d 406 (1977); Wexler Construction Co. v. Housing Authority, 144 Conn. 187, 194, 128 A.2d 540 (1956). Where the legal grounds for such a motion are dependent upon underlying facts not alleged in the plaintiff's pleadings, the defendant must await the evidence which may be adduced at trial, and the motion should be denied. Fraser v. Henninger, supra, 61." Liljedahl Brothers, Inc. v. Grigsby, 215 Conn. 345, 348 (1990). Therefore the motion to strike is denied as to the first and second grounds.
In the third ground of the motion to strike, the Defendants allege that the Plaintiff lacks standing because of unclean hands. "A motion to dismiss for lack of standing attacks the jurisdiction of the court, asserting essentially that the plaintiff cannot as a matter of law or fact state a claim that should be heard by the court. Blumenthal v. Barnes, 261 Conn. 434, 442, 804 A.2d 152 (2002). In ruling on a motion to dismiss, the court must take the facts alleged in the complaint as true, construing them in the manner most favorable to the pleader. Fairfax Properties, Inc. v. Lyons, 72 Conn.App. 426, 431-32, 806 A.2d 535 (2002)." Capasso Restoration, Inc. v. City Of New Haven, 88 Conn.App. 754, 758-9 (2005). The facts alleged here support the Plaintiff's standing in this matter. The Plaintiff has alleged that it is the mortgagee and the holder of the note and mortgage from the Defendants. This is sufficient to support the Plaintiff's standing. The Defendants do not allege in what manner the Plaintiff comes to court with unclean hands and how that would defeat its standing in this matter. Unclean hands may be cited as a defense to an equitable action such as a foreclosure, but by its nature it does not affect the standing of the Plaintiff to pursue the action, or the court's jurisdiction to determine it, but only whether the court will grant the relief requested. "`Our jurisprudence has recognized that those seeking equitable redress in our courts must come with clean hands. The doctrine of unclean hands expresses the principle that where a plaintiff seeks equitable relief, he must show that his conduct has been fair, equitable and honest as to the particular controversy in issue . . . For a complainant to show that he is entitled to the benefit of equity he must establish that he comes into court with clean hands . . . The clean hands doctrine is applied not for the protection of the parties but for the protection of the court . . . It is applied . . . for the advancement of right and justice . . . The party seeking to invoke the clean hands doctrine to bar equitable relief must show that his opponent engaged in willful misconduct with regard to the matter in litigation . . . The trial court enjoys broad discretion in determining whether the promotion of public policy and the preservation of the courts' integrity dictate that the clean hands doctrine be invoked.' (Citation omitted; internal quotation marks omitted.) Ridgefield v. Eppoliti Realty Co., 71 Conn.App. 321, 334-35, 801 A.2d 902, cert. denied, 261 Conn. 933, 806 A.2d 1070 (2002)." Monetary Funding Group, Inc. v. Pluchino, 87 Conn.App. 401, 407(2005). Therefore the third ground of the Motion to Strike is without merit.
In conclusion, the Motion to Strike is denied in its entirety and the Plaintiff's Objection is sustained.
Jane S. Scholl, J.