Opinion
CV136019966S
04-27-2017
Ocwen Loan Servicing, LLC v. David A. Polito aka David Polito et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION TO STRIKE [#135]
Irene P. Jacobs, J.
The current mortgage foreclosure action arises out of a mortgage given to the defendant by Mortgage Electronic Registration Systems, Inc., as Nominee for Mortgage Lenders Network USA. The mortgage was assigned to Homeward Residential, Inc., and was further assigned to the plaintiff. The plaintiff commenced the action on September 17, 2013. The defendant filed an answer and three special defenses on July 27, 2016. On November 8, 2016, the plaintiff filed the current motion to strike the three special defenses [#135] and an accompanying memorandum of law [#136]. The motion appeared on the January 3, 2017 property/foreclosure calendar and was taken on the papers.
" In ruling on a motion to strike, the trial 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." (Internal quotation marks omitted.) Doe v. Hartford Roman Catholic Diocesan Corp., 317 Conn. 357, 119 A.3d 462 (2015). " . . . [T]he total absence of any factual allegations specific to the dispute renders [the special defense] legally insufficient." (Internal quotation marks omitted.) Smith v. Jackson, Superior Court, J.D. of Waterbury, Docket No. CV-14-6024411-S (8/21/15, Roraback, J.) [60 Conn.L.Rptr. 864, ] .
" Historically, defenses to a foreclosure action have been limited to payment, discharge, release or satisfaction . . . or, if there had never been a valid lien . . . 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 . . ." (Emphasis added.) GMAC Mortgage, LLC v. Ford, 144 Conn.App. 165, 73 A.3d 742 (2013).
In the present case, the defendant's first special defense states: " The plaintiff's predecessor in interest, misrepresented the terms and conditions of the mortgage." The defendant's first special defense pleads no facts in support of the defendant's legal conclusion of misrepresentation. The plaintiff's motion to strike the first special defense is granted.
The defendant's second special defense states: " The plaintiff failed to credit payments made by the defendant and charged late fees and other fees without the knowledge or permission of the defendant." " Payment is a valid special defense in a foreclosure action." Homecomings Financial Network, Inc. v. Starbala, 85 Conn.App. 284, 857 A.2d 366 (2004). " 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." Id. In Homecomings Financial Network Inc., the court found that the defendants' special defense which alleged that they " tendered timely payment to the previous note holder" was sufficient to allege the defendants' special defense of payment. Id. In his third special defense in the current case, the defendant has alleged that previous payments were made. Taking the facts alleged as true and in the manner most favorable to sustaining their legal sufficiency, the court concludes that the defendant has alleged legally sufficient facts to support his special defense. The motion to strike the second special defense is denied.
The defendant's third special defense states: " The plaintiff is not the owner of the debt or the holder of the note." No facts are alleged to support the legal conclusion of ownership. Nor does the special defense fall within the limits of the special defenses of payment, discharge, release or satisfaction . . . or, if there had never been a valid lien." The motion to strike the third special defense is granted.