Opinion
No. 4002228
October 28, 2005
MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION TO STRIKE SPECIAL DEFENSES AND TWO-COUNT COUNTERCLAIM (#106)
The plaintiff, Mortgage Electronic Registration Systems, Inc. as Nominee for GMAC Mortgage Corporation d/b/a Ditech.com (hereinafter "plaintiff"), commenced a foreclosure action against property owned by the defendants, Donald L. Venditto and Christine S. Venditto, by complaint dated February 9, 2005. The complaint alleges in part that the defendants executed a promissory note and mortgage on January 27, 2003.
An affidavit filed under C.G.S. § 47-12a together with a copy of the original executed mortgage deed dated January 27, 2005 was recorded in the Colchester land records on January 8, 2005. The original mortgage deed could not be located. The plaintiff failed to file the mortgage deed on the Colchester land records after the closing.
The defendants in their answer dated April 14, 2005 admitted to the execution of the note and mortgage deed. The defendants, however, filed two special defenses. The first special defense claims that the plaintiffs should be estopped from proceeding in this foreclosure action because its underlying debt has been discharged. The second special defense claims that the recordation of the affidavit and filing of a copy of the executed mortgages was of no legal effect. The defendants, in addition, counterclaimed claiming slander of title and a violation of CUTPA.
The court reviewed the pleadings and memoranda of law filed by both parties and applicable statutory and common law. The court hereby orders as follows:
First Special Defense
Motion to strike GRANTED. CT Page 13938-ac
The defendants allege in their first special defense that the plaintiff be estopped in foreclosing its mortgage. They have admitted that they executed the note and mortgage deed. As pled, the defendants' first special defense fails to satisfy the pleading requirements of an estoppel. "Under our well-established law, any claim of estoppel is predicated on proof of two essential elements. The party against whom estoppel is claimed must do or say something calculated or interested to induce another party to believe that certain facts exist and to act on that belief; and the other party must change its position in reliance on those facts, thereby incurring some injury." In Re Michaela Lee R., 253 Conn. 570, 604 (2002). The defendants have failed to allege sufficient facts to prove the defense of estoppel.
The defendants, in their memorandum of law, contend that they are not claiming estoppel. They state that they are claiming the defense of discharge. The defendants alleged that the plaintiff "was thus deemed to be an unsecured creditor by the Trustee" in paragraph 2. The plaintiff contends that a valid lien that has not been disallowed or avoided survives and is not affected by a discharge in bankruptcy. Shawmut Bank v. Brooks Development Corp., 46 Conn.App. 399, 410 (1997). The defendants have failed to specifically allege that the plaintiff's second claim was disallowed or avoided by the trustee the date of said decision, and the statutory authority for said decision. "A trial court must take the facts to be those alleged in the pleading . . . and cannot be aided by the assumption of any facts not alleged therein" (citations omitted; internal quotation marks omitted). Liljedahl Brothers v. Grigsby, 215 Conn. 345, 348 (1990). These facts cannot be necessarily implied from the allegations that are taken as admitted. Gazo v. Stamford, 255 Conn. 245 (2001). The defendants must allege sufficient facts for the trier of fact to determine whether the bankruptcy court lien determination would support their special defense to the plaintiff's foreclosure action.
Second Special Defense
Motion to strike DENIED.
The defendants contend that the filing of an affidavit pursuant to C.G.S. § 47-12a together with a purported copy of the mortgage deed are a legal nullity i.e., have no force and effect. In essence, the defendants claim that the plaintiff has failed to perfect a valid security interest in the subject property. The court concludes that the filing of an affidavit pursuant to § 47-12a does not create a lien on the subject property but merely a notice analogous to a lis pendens. The effect of the CT Page 13938-ad filing of the affidavit pursuant to said statute was addressed by a trial judge in a recent foreclosure matter. A trustee for a party, defendant attempted to claim a lien on the property (subject to the foreclosure action) by the filing of an affidavit under § 47-12a. The trial judge held:
"The recordation of the type of affidavits he refers to in his pleadings does not confer or evidence title to the property, it merely puts the world on notice of some matter pertaining to, for example, capacity, relationship, possession or adverse possession, adverse use, residence, conflicts or ambiguities in the description of land and the happening of any condition or event which may terminate an estate or interest. It is analogous to a lis pendens which is designed to give notice to the world of some claim or conflict which may be effected by the litigation which is pending. It is not and cannot be used as the basis for a claim of interest or title . . ." Peoples Bank v. Bouffard J.D. of Fairfield at Bridgeport, CV05-40008908 (August 19, 2005, Doherty, J.) ( 39 Conn. L. Rptr. 832).
The defendants have alleged sufficient facts in its second special defense. The affidavit in and of itself cannot be treated as a lien against the property. The validity of the late mortgage deed filing and the effect of bankruptcy proceeding will be left to the trier of fact for determination at trial. If the mortgage lien is not discharged (or rendered void) by the actions of the bankruptcy court, it may become an equitable lien that passes through the bankruptcy proceeding unaffected. Matter of Pierce, 29 Bankr. 612-13 (Bkrcy E.D.N.C. 1983). Connecticut courts have recognized the concept of equitable liens. Hansel v. Hartford Connecticut Trust Co., 133 Conn. 181, 190-91 (1946).
The parties clearly intended that the defendants execution of the note and deed should result in a lien against the property upon recordation. A copy of the executed mortgage deed was filed prior to the commencement of the foreclosure action. Whether the bankruptcy court action discharged any secured or equitable lien will be left for trial.
Counterclaim — First and Second Count
Motion to strike the first and second count GRANTED. CT Page 13938-ae
The defendants claim slander of title (first count) and CUTPA violations (second count) in their counterclaim. A counterclaim which attacks the conduct of the plaintiff subsequent to the execution of the note and mortgage does not address the making, validity or enforcement of the note and/or mortgage. Ocwen Federal Bank FSB v. Weinberg, J.D. of New London, CV99-547029 (August 11, 1999, Mihalakos, J.). A special defense attacks the conduct of the plaintiff after execution of the mortgage may not be asserted in a foreclosure action as a defense, and such assertions do not deal with the making, validity or enforcement of the note." Federal National Mortgage v. Mallozzi, J.D. Stamford/Norwalk at Stamford, CV99-165698 (February 10, 1999, Hickey, J.). Furthermore, Practice Book § 10-10 permits a counterclaim against the plaintiff only if the counterclaim arises out of the same transaction that is the subject of the plaintiff's complaint.
The defendants' counterclaim attack the alleged conduct of the plaintiff after the execution of the note and mortgage. The phrase "making validity or enforcement" has been interpreted by the trial courts to mean the execution and delivery of an enforceable instrument, not occurrences by the parties that arise during the course of their relationship. Ocwen Federal bank FSB v. Weinberg, supra; Dime Savings Bank of New York FSB v. Furey, J.D. Ansonia/Milford at Milford, CV99-165698 (February 10, 1999, Hickey, J.) and Federal National Mortgage v. Mallozzi, supra.
The defendants' counterclaims are based on conduct which occurred after execution and delivery of the note and deed. The facts of this particular case, however, deal with the recordation of a copy of the signed mortgage deed together with an affidavit pursuant to C.G.S. § 47-12a long after the note and deed were signed and after the defendants had filed bankruptcy (emphasis supplied). The defendants' counterclaims arise out of the plaintiff's attempts to enforce an "extinguished mortgage" (Def. Brief July 13, 2005, p. 7). The counterclaims do not arise out of the same transaction as the execution of the note and deed and do not directly apply to the making, validity and/or enforcement of the mortgage deed in question. CT Page 13938-af