Opinion
No. CV 05-4001661S
February 3, 2006
MEMORANDUM OF DECISION RE MOTION TO STRIKE # 121
This is the plaintiff's motion to strike the defendants' special defense. For the reasons stated, the motion must be denied.
The plaintiff, Ocwen Federal Bank (Ocwen) filed suit against the defendants, Brian Viarengo, Cindy Carotenuti a/k/a Cindy Viarengo, the State of Connecticut Department of Housing and the Connecticut Children's Medical Center. In the one-count complaint, the plaintiff alleges the following facts. The defendants owned property in Torrington and, in connection with that property, executed a note for loan in the amount of $89,900.00 to McCue Mortgage Company (McCue). The mortgage in connection with this note was dated February 28, 1991 and thereafter recorded in the land records. The mortgage was assigned to several parties, and finally to the plaintiff, Ocwen, who remains the owner and holder of the note and mortgage. The plaintiff alleges that the note is in default and it has elected to accelerate the balance due and to foreclose on the mortgage securing the note. The plaintiff made a motion for foreclosure by sale, and the defendants filed an objection to that motion. The plaintiffs were then substituted for by Lasalle National Bank, as trustee for the mortgage pass through certificates.
When referring to the `defendants,' this court is referencing Brian Viarengo and Cindy Carotenuti a/k/a Cindy Viarengo.
The Defendants then filed an answer and a special defense dated April 15, 2005, asserting that they have offered to bring the mortgage arrears current and that that offer, and attempts to make payment, have been refined by the plaintiff. The plaintiff moved for, and was denied, summary judgment against the defendants. The plaintiff then filed this motion to strike the special defenses.
DISCUSSION CT Page 2587
"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 . . ." (Citations omitted; internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "Practice Book . . . § 10-39, allows for a claim for relief to be stricken only if the relief sought could not be legally awarded." Pamela B. v. Ment, 244 Conn. 296, 325, 709 A.2d 1089 (1998). "[A] plaintiff can [move to strike] a special defense . . ." Nowak v. Nowak, 175 Conn. 112, 116, 394 A.2d 716 (1978); see also Connecticut National Bank v. Voog, 233 Conn. 352, 354-55, 659 A.2d 172 (1995). "In ruling on a motion to strike, the court must accept as true the facts alleged in the special defenses and construe them in the manner most favorable to sustaining their legal sufficiency . . ." (Citations omitted.) Barasso v. Rear Still Hill Road, 64 Conn.App. 9, 13, 779 A.2d 198 (2001).
In its memorandum in support of its motion to strike, the plaintiff argues that, in their special defense, the defendants failed to allege facts which would show that the plaintiff has no cause of action. Further, the plaintiff argues that, not only do the defendants only assert legal conclusions, which are insufficient to withstand a motion to strike, but also that the defendants have not pled a recognized defense to a foreclosure action.
The defendants filed a memorandum of law in opposition to the motion to strike in which they argue that it should be denied on the grounds that the legal defenses they are asserting were upheld by the denial of the plaintiff's motion for summary judgment; that a request to revise would be the appropriate remedy if, as claimed, their special defenses are unclear and vague; and, finally because of the doctrine of unclean hands, the plaintiff must show that its conduct has been fair, equitable and honest as to the issue in controversy when seeking equitable relief.
The defendants' argument that the motion to strike should be denied because their legal defenses were upheld by the denial of the motion for summary judgment is not a basis on which this court will deny the motion to strike. The plaintiff's motion for summary judgment was made on the basis that there exists no genuine issue of material fact in the plaintiff's case against the defendants. The denial of a motion for summary judgment does not, however, uphold the prevailing party's claims; instead, "[s]ummary judgment is a method of resolving litigation when 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 . . ." (Citations omitted.) Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). Further, "[t]he decisions of the Connecticut Superior Court are almost in unanimous agreement that a [plaintiff's] motion for summary judgment as to a special defense is improper. Such a motion is improper because Practice Book § 17-44 does not provide for summary judgment on special defenses." (Citation omitted; internal quotation marks omitted.) Sound Post, LLC v. New Harvest Coffee Roasters Inc., Superior Court, housing session at Bridgeport, Docket No. BRSP 056336 (May 6, 2005, Skolnick, J.). Therefore, the defendants' claim that the denial of the plaintiff's motion for summary judgment upheld their special defense is meritless.
The defendants also claim that the motion to strike should be denied because the plaintiff has unclean hands. The doctrine of unclean hands, however, was never mentioned in any of the pleadings prior to the defendants' objection to the plaintiff's motion to strike. Despite that this court may still consider unclean hands because "in light of the court's inherent equitable powers in a foreclosure action, the court [would] not improperly consider the equitable doctrine of unclean hands without it being specifically pleaded." McKeever v. Fiore, 78 Conn.App. 783, 789, 829 A.2d 846 (2003). "The doctrine of unclean hands holds that one who seeks to prove that he is entitled to the benefit of equity must first come before the court with clean hands . . . It expresses the principle that when a plaintiff seeks equitable relief, he must show that his conduct has been fair, equitable and honest as to the particular controversy in issue." (Citations omitted; internal quotation marks omitted.) Id. This court, however, need not consider unclean hands at this time as it does not contribute to the consideration of whether the defendants have alleged legally sufficient facts to support their special defense.
"At common law, the only defenses to an action of [foreclosure] would have been payment, discharge, release or satisfaction . . . or, if there had never been a valid lien . . . Moreover, our 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." (Citations omitted; internal quotation marks omitted.) Homeowners Finance v. 12-20 Cottages St., Superior Court, judicial district of Tolland, Docket No. CV 04 4000161 (May 4, 2005, Scholl, J.) ( 39 CLR 272). "In recognition that a foreclosure action is equitable in nature, courts have also allowed equitable estoppel, CUTPA, laches, breach of the implied covenant of good faith and fair dealing, tender of deed in lieu of foreclosure, a refusal to agree to a favorable sale to a third party, and lack of consideration to be pleaded as a special defense." (Citations omitted; internal quotation marks omitted.) Atlantic Mortgage Corp. v. Linsley, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 97 0260406 (July 3, 2001, Booth, J.) ( 2001 Ct.Sup. 8813).
"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 . . . Payment is a valid special defense in a foreclosure action." (Citations omitted; internal quotation marks omitted.) HSBC Mortgage Corp. v. Ho, Superior Court, judicial district of New London, Docket No. 4000413 (February 1, 2005, Devine, J.), citing New England Savings Bank v. Bedford Realty Corp., 246 Conn. 594, 606 n. 10, 717 A.2d 713 (1998); see also Homecomings Financial Network, Inc. v. Starbala, 85 Conn.App. 284, 289, 857 A.2d 366 (2004). "While payment is a recognized special defense to mortgage foreclosure at common law . . . Superior Court decisions vary in their treatment of the various forms of the payment defense in the context of a motion to strike the defense. Specifically, the decisions vary in their determination whether the allegation that the mortgagee refused to accept tendered payment before declaring default constitutes a sufficient defense of payment and thus survives a motion to strike." (Citations omitted.) Atlantic Mortgage Corp. v. Linsley, supra, Superior Court, Docket No. CV 97 0260406.
In Homecomings Financial Network Inc. v. Starbala, 85 Conn.App. 284, 857 A.2d 366 (2004), the court found that "[t]he defendants' special defense [that alleged] that they tendered timely payment of the mortgage to the previous note holder, and that such payment was refused," was sufficient to allege the defendant's special defense of payment. Homecoming Financial Network, Inc. v. Starbala, supra, 85 Conn.App. 289. "In Dovenmuehle v. Brucoli, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. 173479 (February 8, 2000, Rodriguez, J.), the court held that a special defense, alleging that "the defendant is not in default, and has been making payments," was sufficient to withstand a motion to strike in a foreclosure action. In Bristol Savings Bank v. EFA Acceptance Corp., Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 515249 (June 1, 1993, Aurigemma, J.), the court refused to strike a special defense that simply alleged payment without supporting facts, holding that the plaintiff could have obtained additional facts by filing a request to revise." First Union National Bank v. Luccaro, Superior Court, judicial district of Waterbury. Docket No. CV 00 0160028 (June 12, 2001, West, J.).
In their special defense, dated April 15, 2005, the defendants assert that "[p]rior to the commencing of this action, the defendants have offered to bring the mortgage arrears current in accordance with the Promissory Note. The plaintiff has refused to accept said payments." Though the special defense does not allege that the attempts to make payment were timely, nor do they allege supporting facts, the vagueness of the special defense might have been cured by a request to revise, as in Bristol Savings Bank. Payment is a valid special defense to foreclosure, and, taking the facts alleged as true, and looking at them in the light most favorable to the defendants, the defendants have alleged legally sufficient facts to support a special defense of payment, and therefore the motion to strike the special defense must be denied.