Summary
In Stahl v. Webster, 11 Ill. 511, 516, it is said: "The word 'property' embraces money, debts, and choses in action of every kind, as well as articles that can be seen and handled.
Summary of this case from Stilo v. StiloOpinion
No. CV 04-4005592-S
February 2, 2007.
MEMORANDUM OF DECISION ON MOTION TO STRIKE SPECIAL DEFENSES
The Department of Environmental Protection (D.E.P.) has filed this three-count complaint against the defendant, Webster Bank claiming penalties for violating the Transfer Act, Conn. Gen. Stat. § 22a-134 et seq., by filing a Form I, which allegedly contained false information, instead of filing a Form III when selling property the Bank had obtained through a foreclosure. The D.E.P. also claims that the Bank, knowing the property had a history of having had a vehicle body repair shop on it, did not perform an investigation of the property in accordance with prevailing standards and guidelines. The Bank has responded with an answer and three special defenses filed on November 8, 2005:
1. The Bank is exempt from liability pursuant to Conn. Gen. Stat. § 22a-452f as it obtained the property through foreclosure, did not manage the property at any time and sold it within a reasonable period of time.
2. The Bank is exempt pursuant to Conn. Gen. Stat. § 22a-452b as it obtained the property through foreclosure and, therefore, is not liable for any costs relating to a spill on the property beyond the value of the property.
3. The claims by D.E.P. are barred as the current owner of the property, defendant's transferee, has not been joined in this action.
D.E.P. has filed this motion to strike all three special defenses on the grounds that they are inapplicable to an enforcement action brought pursuant to the Transfer Act.
I CT Page 2362
The gravamen of this action is that the Bank did not comply with the requirements of the Transfer Act, not that the bank failed to remediate any spill that occurred on the property. In reading Conn. Gen. Stat. § 22a-134(I)(B),(7) and (10), it is clear that the act of a mortgagee receiving property through a foreclosure does not come under the Transfer Act. However, when the mortgagee sells the property, the appropriate form as indicated by the Transfer Act must be filed. This requirement is clearly substantiated by the legislative history of PA 95-183 which became Conn. Gen. Stat. § 22a-134. In Visconti v. Pepper Partners, Superior Court, complex litigation docket at Waterbury, Docket No. X06 CV 99 0170072 (May 8, 2000, McWeeny, J.) the court held that when property once housed a vehicle body repair shop, "General Statutes § 22a-134a mandates that an environmental condition assessment form (ECAF) and a property transfer program Form III (Form III) must be completed as a part of the sale." The special defenses one and two filed by the Bank refer to exemptions the legislature has provided in the case of a foreclosure, and exempt the mortgagee from liability to remediate or abate any spill that has occurred on the property prior to foreclosure. The statutes do not mention any exemption for mortgagees if the Transfer Act is violated in the process of selling foreclosed property. The first and second special defenses are therefore insufficient.II
The third special defense asserts the failure of D.E.P. to join the present owner as a party.
Since the complaint concerns violations of the Transfer Act and not remediation of contaminated property, there is no need to join the current owner, the defendant's transferees, as a party to this action. Moreover, the claim that without the current owner the bank would have no access to the property is unavailing. Since the complainant does not seek remediation, the Bank does not need to have access to the property to facilitate pollution abatement.
Motion to strike all three special defenses is granted.