Opinion
LLICV156012944S
01-24-2019
The BANK OF NEW YORK MELLON v. Charles H. FISHER et al.
UNPUBLISHED OPINION
Bentivegna, J.
I
STATEMENT OF CASE
The issue before the court is whether the court should grant the defendant’s motion to strike the plaintiff’s first, second, third, fourth, fifth, and sixth special defenses on the grounds that they are legally insufficient.
II
FACTS AND PROCEDURAL HISTORY
The plaintiff, Bank of New York Mellon asset-backed Alternative Loan Trust 2007-0H2, Mortgage Pass-Through certificates, Series 2007-0H2, as trustee for The Certificateholders of CWALT, Inc., initiated this foreclosure action by service of summons and complaint on November 9, 2015, against the defendant, Charles Fisher. In its complaint, filed on November 16, 2015, the plaintiff alleges the following facts. On March 16, 2007, Fisher executed a promissory note for $ 481, 500.00 with Countrywide Bank, FSB (Countrywide) that was secured through a mortgage on 530 Main Street South, Bethlehem, Connecticut. The mortgage was recorded in the Bethlehem Land Records on March 21, 2007. Subsequently, Countrywide Bank assigned the mortgage on March 20, 2012 to the plaintiff. Fisher failed to make payments beginning in February 2015, and defaulted on the note. The plaintiff asserts that, it now has possession of the note, and therefore, has the right to foreclose on the subject property. As the note is now in default, the plaintiff has elected to accelerate the balance due.
The plaintiff also brought the relevant action against a second, non-appearing defendant, Maria D. Fisher. Because Ms. Fisher has not filed an appearance in this matter, all references to the defendant in this memorandum are to Charles Fisher.
On May 28, 2018, the defendant filed an answer. In his answer, the defendant asserts twelve special defenses, and the counterclaim complaint sounds in twelve counts. The defendant asserts the following in his counterclaim: (1) violation of CUTPA; (2) willful violation of CUTPA; (3) negligent infliction of emotional distress; (4) breach of the implied covenant of good faith and fair dealing; (5) violation of Public Act No. 07-176; (6) acts committed pursuant to a formed civil conspiracy; (7) negligence; (8) fraud/intentional misrepresentation; (9) unjust enrichment; (10) breach of contract; (11) fraudulent concealment; and (12) violation of Public Act No. 14-89.
On July 26, 2018, the plaintiff filed an answer, matters in avoidance, and special defenses to the defendant’s counterclaims. The plaintiff asserts six special defenses: (1) Workout negotiations do not form the basis for a counterclaim, aimed at all of the defendant’s counterclaims; (2) Real Estate Settlement Procedures Act irrelevant, directed at the defendant’s second counterclaim; (3) negligent infliction of emotional distress does not attack the making, validity, or enforcement of the note or mortgage, aimed at the defendant’s third counterclaim; (4) good faith and fair dealing inapplicable, attacking the defendant’s fourth counterclaim; (5) counterclaims without facts do not form a basis upon which relief can be granted, directed at the defendant’s fifth, sixth, seventh, ninth, eleventh, and twelfth counterclaims; and (6) fraudulent concealment inapplicable, aimed at the defendant’s eleventh counterclaim.
On August 20, 2018, the defendant moved to strike the plaintiff’s special defenses to his counterclaims. In his memorandum in support of his motion to strike, the defendant argued that the plaintiff’s special defenses are, inter alia, legally insufficient, factually incorrect, and unsupported by case law. On September 12, 2018, the plaintiff filed an objection to defendant’s motion to strike arguing that all of its special defenses are legally sufficient, in accordance with the Practice Book and case law, to properly withstand the defendant’s motion to strike. The matter was heard during short calendar on October 29, 2018.
III
DISCUSSION
"[O]ur rules of practice provide that a party may challenge by way of a motion to strike the legal sufficiency of an answer, including any special defenses contained therein ..." (Internal quotation marks omitted.) U.S. Bank National Assn., Trustee v. Blowers, 177 Conn.App. 622, 628, 172 A.3d 837 (2017), cert. granted, 328 Conn. 904, 177 A.3d 1160 (2018): Practice Book § 10-39. "The role of the trial court in ruling on a motion to strike is to examine the [pleading], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Coe v. Board of Education, 301 Conn. 112, 117, 19 A.3d 640 (2011). "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." Doe v. Hartford Roman Catholic Diocesan Corp., 317 Conn. 357, 398, 119 A.3d 462 (2015).
The defendant moves to strike the plaintiff’s first, second, third, fourth, fifth, and sixth special defenses arguing that they are legally insufficient on the grounds that they improperly state relevant law and are factually incorrect. The court will address the merits of the defendant’s motion with respect to each of the special defenses in turn.
A.
Workout Negotiations
In the plaintiff’s first special defense, the plaintiff alleges that workout negotiations cannot form the basis for a counterclaim in a foreclosure action because they do not relate to the making, validity, or enforcement of the mortgage note. The defendant moves to strike the plaintiff’s first special defense on the ground that the defense does not specify what counterclaim it is referring to, in violation of Practice Book § 10-51. Additionally, the defendant argues that the plaintiff’s special defense should be stricken because the allegations pertaining to workout negotiations are necessarily pled to support his first counterclaim alleging a violation of CUTPA. In response, the plaintiff argues that the defense is legally sufficient in spite of its failure to name a counterclaim. The plaintiff further argues that the special defense is valid because the defendant’s counterclaims are predicated upon the defendant’s attempts, while in default, to obtain a forbearance or modification agreement, which does not pertain to the making, validity, or enforcement of the original mortgage note.
1.
Practice Book § 10-51
The defendant first argues that the plaintiff’s first special defense should be stricken because it fails to conform to Practice Book § 10-51. Section 10-51 provides: "Where the complaint or counterclaim is for more than one cause of action, set forth in several counts, each separate matter of defense should be preceded by a designation of the cause of action which it is designed to meet ..." According to our Appellate Court, a pleading is legally insufficient if it fails to conform to any rule of practice. See U.S. Bank National Assn. v. Sorrentino, 158 Conn.App. 84, 95, 118 A.3d 607, cert. denied, 319 Conn. 951, 125 A.3d 530 (2015).
When confronted with a counterclaim or special defense’s legal sufficiency, superior courts have an "obligation to take the facts to be those alleged in the special defenses and [construe] the defenses in the manner most favorable to sustaining their legal sufficiency." Samuels v. State Dept. of Public Health, Superior Court, judicial district of New Haven, Docket No. CV-10-6011434-S (December 1, 2010, Wilson, J.). "Superior Court judges have ... ruled that § 10-51 is not violated when it can be inferred from the language of the special defense which counts in the complaint it is attacking." Quality Sales, LLC v. Gitlincampise, LLC, Superior Court, judicial district of Hartford, Docket No. CV-12-6028126-S (March 12, 2014, Wagner J.) ; see also Benoit v. Edington, Superior Court, judicial district of Fairfield, Docket No. CV-06-5006056-S (March 13, 2009, Bellis, J.) (denying motion to strike because court could easily infer what count defense was attempting to address); Clock Tower, LLC v. Dinardo, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-02-0191069-S (May 8, 2003, Karazin, J.) (declining to strike special defense because it could be construed to "[apply] to the damages alleged in each count of the complaint equally"). Consequently, our courts have only been willing to strike a special defense for failure to comply with § 10-51 when it is absolutely unclear what count the defense is attempting to address. Compare Counseling Affiliates, LLC v. Chapman, Superior Court, judicial district of Hartford, Docket No. CV-13-5037399-S (September 14, 2016, Huddleston, J.) (granting motion to strike when language of special defense did not comply with § 10-51, and could reasonably serve as defense to any of plaintiff’s counts), with Benoit v. Edington, supra, Superior Court, Docket No. CV-06-5006056-S (declining to strike special defense because "defect is technical and the language of the special defense makes it clear as to which counts it is referring").
In the present case, the fifth paragraph of the plaintiff’s first special defense provides that the defendant made "allegations pertaining to forbearance or modification agreements as the basis for his first counterclaim and re-alleged in the remaining counterclaims ..." Docket Entry # 237. This statement was not made at the outset of the plaintiff’s special defense and therefore, does not strictly conform to Practice Book § 10-51. Nevertheless, the language of the special defense makes it clear that the plaintiff intends to address all of the defendant’s counterclaims with this defense. In accordance with this court’s obligation to construe all pleadings in favor of their legal sufficiency, this court declines to strike the plaintiff’s first special defense for failure to conform to Practice Book § 10-51.
2.
Workout Negotiations
The defendant secondarily argues that the plaintiff’s first special defense should be stricken because the allegations it is attempting to address are necessarily pled as supporting facts for his first counterclaim, which alleges a violation of CUTPA. Our rules of practice provide that a valid counterclaim or special defense must "[arise] out of the transaction or one of the transactions which is the subject of the plaintiff’s complaint ..." Practice Book § 10-10. In foreclosure actions, our courts have interpreted the "same transaction" requirement of our practice book to require that counterclaims relate to the making, validity, or enforcement of the mortgage note. See CitiMortgage, Inc. v. Rey, 150 Conn.App. 595, 605, 92 A.3d 278, cert. denied, 314 Conn. 905, 99 A.3d 635 (2014); JP Morgan Chase Bank, Trustee v. Rodrigues, 109 Conn.App. 125, 133, 952 A.2d 56 (2008).
While our Appellate Court had previously used the phrase "attack the making, validity, or enforcement of the note" when discussing a counterclaim’s sufficiency in a foreclosure action; Southbridge Associates, LLC v. Garofalo, 53 Conn.App. 11, 16, 728 A.2d 1114, cert. denied, 249 Conn. 919, 733 A.2d 229 (1999); our Appellate Court has since clarified that a valid counterclaim need only "have a sufficient relationship to the making, validity or enforcement of the subject note or mortgage in order to meet the transaction test." CitiMortgage, Inc. v. Rey, 150 Conn.App. 595, 605, 92 A.3d 278, cert. denied, 314 Conn. 905, 99 A.3d 635 (2014). In so holding, our Appellate Court provided: "[A]lthough [the transaction test] may require an assessment of whether the counterclaim in question relates to the making, validity or enforcement of the subject note and mortgage, there can be such a nexus even though the counterclaim may not directly attack the making, validity or enforcement of the mortgage and note which form the basis of the foreclosure complaint." Id., 606.
Our Appellate Court has held on multiple occasions that counterclaims pertaining to post-execution negotiations between mortgagor and mortgagee, including negotiations of forbearance and loan modification, are not sufficiently related to the making, validity, or enforcement of the note in order to meet the transaction test. See U.S. Bank National Assn., Trustee v. Blowers, supra, 177 Conn.App. 634; U.S. Bank National Assn. v. supra, 158 Conn.App. 97 (holding that improper conduct during foreclosure mediation program did not relate to making, validity, or enforcement of mortgage because it occurred after execution of mortgage and after commencement of action); JP Morgan Chase Bank, Trustee v. Rodrigues, supra, 109 Conn.App. 134-35 ("[c]onduct on the part of the party seeking foreclosure that occurred after the loan documents were executed and not necessarily directly related solely to enforcement of the note ... has been found not to arise out of the same transaction as the complaint"); Southbridge Associates, LLC v. Garofalo, 53 Conn.App. 11, 17, 728 A.2d 114, cert. denied, 249 Conn. 919, 733 A.2d 229 (1999) (holding counterclaim alleging breach of good faith and fair dealing improper in foreclosure action because alleged conduct "occurred well after the loan documents were executed and was therefore irrelevant to the propriety of the notes").
To date, our Supreme Court has never issued a decision addressing whether a properly brought counterclaim in a foreclosure action must relate to the making, validity, or enforcement of the note or mortgage. Nevertheless, in January 2018, our Supreme Court granted certiorari in the matter U.S. Bank National Assn., Trustee v. Blowers, 177 Conn.App. 622, 172 A.2d 837 (2017). It limited its acceptance of the appeal to, inter alia, the following issue: "Did the Appellate Court properly hold that special defenses ... and counterclaims in a foreclosure action must ... satisfy the making, validity, or enforcement requirement?" (Internal quotation marks omitted.) U.S. Bank National Assn., Trustee v. Blowers, 328 Conn. 904, 177 A.3d 1160. As of the date of this memorandum, our Supreme Court has not yet issued a decision on the matter.
In the present case, the plaintiff’s first special defense alleges a correct statement of law that workout negotiations cannot form the basis for a proper counterclaim in a foreclosure action. Our Appellate Court has ruled that post-execution negotiations between mortgagor and mortgagee, such as those alleged by the defendant in his counterclaims, do not arise out of the same transaction as the complaint. In the current action, the defendant has not alleged any reason why the plaintiff’s special defense is not a proper statement of law in light of the aforementioned case law. Accordingly, this court declines to strike the plaintiff’s first special defense.
B.
Real Estate Settlement Procedures Act
The plaintiff’s second special defense alleges that the defendant’s claims that the plaintiff violated the Real Estate Settlement Procedures Act (RESPA) are irrelevant because they do not attack the making, validity, or enforcement of the note or mortgage. The defendant moves to strike this special defense arguing that it is legally insufficient because it is unclear which of the defendant’s counterclaims it is attempting to address, in violation of Practice Book § 10-51. Moreover, the defendant also argues that the plaintiff’s special defense is improper because it attacks allegations that are properly brought as supporting facts to his CUTPA claim. The plaintiff reiterates in his response that the defendant’s allegations concerning RESPA cannot be properly brought in a foreclosure action because they do not attack the making, validity, or enforcement of the note or mortgage.
The plaintiff’s special defense incorrectly states that a counterclaim in a foreclosure action must "attack" the making, validity, or enforcement of the mortgage. Instead, our courts have only required that a proper counterclaim "relate to" the making, validity, or enforcement of the mortgage note. Nevertheless, the defendant never moved to strike the plaintiff’s special defense on this ground. Moreover, when construing the special defense in favor of legal sufficiency, its failure to properly provide the correct standard of a properly-brought counterclaim does not destroy the defense’s legal sufficiency.
1.
Practice Book § 10-51
The defendant first argues that the plaintiff’s second special defense should be stricken because it does not provide what counterclaim it is attempting to address, in violation of Practice Book § 10-51. As previously discussed, our Superior Courts have an obligation to construe all pleadings in favor of their legal sufficiency; and as a result, courts have refused to strike pleadings in cases where the court can infer what counts the pleading is attempting to address.
In the present case, the plaintiff’s second special defense makes it clear from the outset that it is aimed at the defendant’s first counterclaim. The first paragraph of the plaintiff’s second special defense reads: "Defendant alleges a violation of the Real Estate Settlement Procedures Act, 12 U.S.C. § 2605 (RESPA) in his first special defense." Docket Entry # 237. As a result, it is clear to both the court and to the defendant what counterclaim the plaintiff is attempting to address with this special defense. Accordingly, the court declines to strike the plaintiff’s second special defense for a violation of Practice Book § 10-51.
2.
RESPA
The defendant secondarily argues that the plaintiff’s second special defense should be stricken because it improperly attacks the validity of his allegations of RESPA, which are properly brought as a supporting fact to his first counterclaim. As previously discussed, a properly filed counterclaim in a foreclosure action must sufficiently relate to the making, validity, or enforcement of the note or mortgage. Moreover, our Appellate Court has held on multiple occasions that "[c]onduct on the part of the party seeking foreclosure that occurred after the loan documents were executed and not necessarily directly related solely to enforcement of the note ... [does] not ... arise out of the same transaction as the complaint." JP Morgan Chase Bank, Trustee v. Rodrigues, supra, 109 Conn.App. 134-35.
In the present case, the plaintiff’s second special defense should not be stricken because it is a correct statement of law. Some of the RESPA violations alleged by the defendant in his counterclaims have a basis in conduct that occurred after the execution of his note with the plaintiff’s assignor.
While some of the defendant’s allegations of RESPA concern conduct that occurred during the execution of his mortgage, the plaintiff’s special defense is still legally sufficient. Our Superior Courts have long held that "if a motion to strike attacks an entire count, but any part of the plaintiff’s claims therein are legally sufficient, the motion will fail." Durkin v. First Healthcare Corp., Superior Court, judicial district of Hartford, Docket No. CV-88-0350622 (October 18, 1990, Freed J.) (2 Conn. L. Rptr. 743, 745); see e.g., Paradigm Healthcare Center of Torrington v. Coole, Superior Court, judicial district of Hartford, Docket No. CV-15-6061109-S (September 7, 2016, Elgo, J.); Aurio v. Allstate Ins. Co., Superior Court, judicial district of Waterbury, Docket No. CV-02-0175465-S (November 26, 2003, Gallagher, J.) ; Farago v. Pfizer, Inc., Superior Court, judicial district of New London, Docket No. 524911 (May 17, 1993, Teller, J.). Because the plaintiff’s second special defense wages a proper defense to some of the defendant’s RESPA allegations, the court declines to strike the plaintiff’s second special defense.
C.
Negligent Infliction of Emotional Distress
The plaintiff’s third special defense alleges that claims of negligent infliction of emotional distress are improper in foreclosure actions because they do not attack the making, validity, or enforcement of the mortgage note. The defendant moves to strike the plaintiff’s third special defense on the grounds that it (1) does not specify which of the defendant’s counterclaims it is attempting to address, in violation of Practice Book 10-51; (2) incorrectly relies on JP Morgan Chase Bank v. Rodrigues, supra, 109 Conn.App. 132-33; and (3) has no factual basis as his counterclaims do relate to the enforcement of his mortgage note. The plaintiff argues in response that Rodrigues is dispositive on this issue given the factual similarities between the defendant’s counterclaims and the counterclaim stricken in Rodrigues.
As in the plaintiff’s second special defense, this special defense also incorrectly states that a counterclaim in a foreclosure action must "attack" the making, validity, or enforcement of the mortgage. Nevertheless, the defendant never moved to strike the plaintiff’s special defense on this ground. Moreover, when construing the special defense in favor of legal sufficiency, its failure to properly provide the correct standard of a properly-brought counterclaim does not impede on its legal sufficiency.
1.
Practice Book § 10-51
The defendant first argues that the plaintiff’s third special defense should be stricken because it does not provide what counterclaim it is attempting to address, in violation of Practice Book § 10-51. As previously discussed, our superior courts have an obligation to construe all pleadings in favor of their legal sufficiency; and as such, courts have refused to strike pleadings in cases where the court can infer what counts the pleading is attempting to address.
In applying this rule to the plaintiff’s third special defense, this court holds that the defense is not legally insufficient. While the special defense fails to specify which of the defendant’s counterclaims it is attempting to address, this court can properly infer from the language of the special defense that it is attempting to address the defendant’s third counterclaim because it is the only counterclaim in which the defendant alleges negligent infliction of emotional distress. Therefore, in keeping with this court’s obligation to construe special defenses in a manner most favorable to its legal sufficiency, this court holds that the plaintiff’s third special defense is legally sufficient in accordance with Practice Book § 10-51.
2.
Negligent Infliction of Emotional Distress
The defendant next argues that the holding in Rodrigues does not impede upon the validity of his counterclaim because the Rodrigues court ultimately held that the actions of the mortgagee constituted a violation of CUTPA. In Rodrigues, the defendants claimed that the mortgagee caused them emotional distress when it refused to honor a previously reached forbearance agreement, and threatened them with foreclosure if they did not sign a new agreement, which allegedly listed an incorrect balance due. Our Appellate Court ultimately held that the trial judge did not abuse his discretion by striking the emotional distress claim writing, "[t]hese allegations of emotional distress relate to the behavior of the plaintiff and do not pertain to the specific subject of the plaintiff’s complaint. * * * [T]he defendants’ allegations related to the conduct of the plaintiff that occurred after the execution of the mortgage note and with respect to documents other than the mortgage note. The disparity between the subject matter of the plaintiff’s complaint and that of the defendants’ counterclaim warranted the court’s conclusion that the counterclaim did not arise from the same transaction." JP Morgan Chase Bank v. Rodrigues, supra, 109 Conn.App. 132-33.
The holding in Rodrigues is further supported by our Appellate Court’s holding in South Windsor Cemetery Assn., Inc. v. Lindquist, 114 Conn.App. 540, 547-48, 970 A.2d 760, cert. denied, 293 Conn. 932, 981 A.2d 1076 (2009). In that case, our Appellate Court applied the transaction test to a defendant’s counterclaim of negligent infliction of emotional distress in a dispute over ownership and use of a right-of-way. The court cited to its previous holding in Rodrigues and found that the counterclaim did not meet the transaction test. In so holding, the court wrote: "The disposition of the plaintiff’s complaint necessarily requires an analysis of the scope of the conveyance from [the defendant] to the plaintiff and the parties’ rights relating to the real property comprising the right-of-way ... Conversely, the disposition of the [infliction of emotional distress claim] would require a fact intensive investigation into personal interactions between the defendant and the representatives of the plaintiff, which occurred after the purchase of the right-of-way and allegedly resulted in physical and emotional distress to the defendant. Those allegations relate to the behavior of the plaintiff and do not pertain to the specific subject of the plaintiff’s complaint." (Citation omitted.) Id., 547.
In light of the aforementioned law, the plaintiff’s third special defense, alleging that claims of negligent infliction of emotional distress cannot be properly be brought as counterclaims in foreclosure actions is a correct statement of law. Accordingly, the plaintiff’s third special defense is legally sufficient.
3.
Enforcement
Finally, the defendant argues that the plaintiff’s third special defense must be dismissed because it improperly claims that his counterclaims do not relate to the enforcement of his note or mortgage. In U.S. National Assn., Trustee v. Blowers, supra, 177 Conn.App. 635, our Appellate Court held that a post-execution negotiation to modify a loan agreement is not sufficiently related to the original mortgage note unless a binding new agreement is reached. In so holding, the court provided: "In the present case, the plaintiff’s alleged conduct does not relate to the enforcement of the note or mortgage because no binding modification was reached between the parties that rendered the original note and mortgage unenforceable." Id. Moreover, upon the defendant’s request, the court declined to extend the definition of "enforcement" to include post-execution negotiations and interactions between mortgagee and mortgagor that did not result in a new, binding agreement. Id.
In the present case, there is no evidence that the plaintiff and the defendant reached a new, binding agreement in their negotiations. Instead, according to defendant’s counterclaims, it appears that the plaintiff and the defendant merely discussed entering into forbearance and loan modification agreements; the defendant never claims that he reached an agreement with the plaintiff. See Docket Entry # 230. As a result, the plaintiff’s third special defense, which alleges that a claim of negligent infliction of emotional distress cannot properly be brought in a foreclosure action, is properly waged against the defendant’s third counterclaim. Accordingly, the court denies the defendant’s motion to strike the plaintiff’s third special defense.
D.
Good Faith and Fair Dealing
The plaintiff’s fourth special defense alleges that counterclaims alleging a breach of the covenant of good faith and fair dealing are not valid counterclaims in a foreclosure action, in accordance with Fidelity Bank v. Krenisky, 72 Conn.App. 700, 716, 807 A.2d 968, cert. denied, 262 Conn. 915, 811 A.2d 1291 (2002). The defendant moves to strike this special defense arguing that Krenisky is dissimilar to the present action because unlike the defendant in Krenisky, he alleges that the plaintiff has committed illegal and unscrupulous activities. The defendant further argues that the plaintiff’s special defense is an improper statement of law because breach of the covenant of good faith and fair dealing can be properly brought as a counterclaim in a foreclosure action. In response, the plaintiff reiterates that its special defense is legally sound because our courts have already held that claims regarding a breach of the covenant of good faith and fair dealing may not be properly brought as a counterclaim in a foreclosure action.
The defendant argues that the plaintiff’s fourth special defense should be stricken because a counterclaim alleging breach of the covenant of good faith and fair dealing may properly be brought in a foreclosure action. According to our Appellate Court: "[S]pecial defenses and counterclaims alleging a breach of an implied covenant of good faith and fair dealing ... are not equitable defenses to a mortgage foreclosure." New Haven Savings Bank v. LaPlace, 66 Conn.App. 1, 10, cert. denied, 258 Conn. 942, 786 A.2d 426 (2001); accord Fidelity Bank v. Krenisky, supra, 72 Conn.App. 716.
In light of the foregoing law, the plaintiff’s fourth special defense, which alleges that claims regarding a breach of the implied covenant of good faith and fair dealing cannot be brought in a foreclosure action is a proper statement of law. The defendant has not alleged any reason why the plaintiff’s statement is legally unsound in light of the aforementioned law. As a result, the court denies the defendant’s motion to strike the plaintiff’s fourth special defense.
E.
Factual Sufficiency of Counterclaims
The plaintiff’s fifth special defense, aimed at the defendant’s fifth, sixth, seventh, ninth, eleventh, and twelfth counterclaims, alleges that counterclaims without facts do not form a basis upon which relief may be granted. According to the plaintiff, the counterclaims allege the plaintiff’s breach of various covenants due to the actions of its agent, SPS. As a result, the plaintiff argues that the counterclaim has failed to allege sufficient facts (1) to establish an agency relationship between the plaintiff and SPS; and (2) to support the violations of law or legal concept alleged in each counterclaim. The defendant moves to strike the plaintiff’s fifth special defense on the grounds that each of his aforementioned counterclaims incorporate, by reference, facts that allege the existence of an agency relationship between the plaintiff and SPS and support the substantive allegations of these counterclaims. In response, the plaintiff reiterates that its special defense is proper because the defendant’s aforementioned counterclaims merely state and define what violations the defendant believes the plaintiff has committed, and do not contain any facts or any application of the law.
According to Practice Book § 10-1, "[e]ach pleading shall contain a plain and concise statement of the material facts on which the pleader relies, but not of the evidence by which they are to be proved ..." see also Bridgeport Harbour Place I, LLC v. Ganim, 111 Conn.App. 197, 209-10 (2008), aff’d, 303 Conn. 205, 32 A.3d 296 (2011) (a legally sufficient pleading need not, "provide detailed factual allegations, but it does need to plead something more than conclusory allegations that invite speculation as to the actual effects of the challenged conduct ..."); HSBC Bank USA v. Maurer, Superior Court, judicial district of New Haven, Docket No. CV-13-6043583-S (May 26, 2016, Corradino, J.T.R.) ("[our] case law does not require a litigant to plead evidence but only facts which establish a legal theory in support of a claim ..."). In other words, a plaintiff need only "fairly ... apprise the adverse party of the state of facts" that he will use to prove the claim in question. Practice Book § 10-2; see also Smith v. Furness, 117 Conn. 97, 99 (1933) ("The adverse party has the right to have the facts appear so that the question whether they support the conclusion may be determined and that he may have an opportunity to deny them"). Moreover, our courts have provided that if a pleading merely alleges a conclusory statement of law, and fails to allege supporting facts, they are subject to a motion to strike. See Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003); Smith v. Furness, supra, 117 Conn. 99.
1.
Agency
The defendant first alleges that the plaintiff’s fifth special defense should be stricken because the counterclaims it is attempting to address have all properly plead the existence of an agency relationship between the plaintiff and SPS. Our Superior Court has held that a mere allegation of the existence of an agency relationship is sufficient to withstand the requirements of Practice Book § 10-1. See HSBC Bank USA v. Maurer, supra, Superior Court, Docket No. CV-13-6043583-S (holding mere claim of agency relationship in complaint sufficient allegation of agency).
In the present case, the defendant alleges in his fifth, sixth, seventh, ninth, eleventh, and twelfth counterclaims that the plaintiff’s agent, SPS, took various unjust and illegal actions, including but not limited to harassing collection tactics, making false claims that it would help the defendant enter into forbearance and loan modification programs, improper bookkeeping records, and incorrect tallying of his mortgage payments and associated fees. Because the defendant is attempting to hold the plaintiff responsible for actions allegedly done by SPS, the defendant is required to plead that an agency relationship exists between the plaintiff and SPS. In the background section of the defendant’s counterclaims, the defendant pleads that SPS is an agent of the plaintiff. Moreover, this allegation of an agency relationship is properly incorporated into all of the aforementioned counterclaims by reference, in accordance with Practice Book § 10-51. Docket Entry # 230. Our superior courts have held that a mere claim of the existence of an agency relationship, such as the one made by the defendant, is a sufficient pleading of agency. See HSBC Bank USA v. Maurer, supra, Superior Court, Docket No. CV-13-6043583-S.
2.
Sufficient Facts
The defendant also argues that the plaintiff’s fifth special defense is legally insufficient because his fifth, sixth, seventh, ninth, eleventh, and twelfth counterclaims have all set forth sufficient facts to prove their respective substantive allegations. The court recognizes that the plaintiff’s special defense is legally sufficient if it is properly waged as to only one of the defendant’s counterclaims. See Durkin v. First Healthcare Corp., supra, 2 Conn. L. Rptr. 743, 745. Consequently, this court will proceed to determine whether the plaintiff’s fifth special defense is properly waged against any one of the aforementioned counterclaims.
Our Superior Courts have not yet had the opportunity to address what constitutes a sufficient pleading for any of the above-mentioned counterclaims in the context of a foreclosure action. Nevertheless, our courts have addressed what constitutes a sufficient pleading of unjust enrichment in a broad, civil context. According to our Superior Courts, in order to successfully plead a counterclaim of unjust enrichment, the plaintiff "must prove (1) that the defendants were benefited, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs’ detriment." Precision Computer Services v. Zones, Inc., Superior Court, judicial district of Fairfield, Docket No. CV-12-6031688-S (April 11, 2013, Sommer, J.); see also Consumer Incentive Services, Int’l v. Memberworks, Inc., Superior Court, judicial district of Fairfield, Docket No. CV-99-0362655-S (April 25, 2000, Melville, J.).
In the present case, the defendant alleges that the plaintiff and SPS wrongly charged him for assessments of his home that were never performed, and improperly assessed fees for nonpayment of monthly installments that the defendant claims he made. Nevertheless, the defendant has not plead in his counterclaim that he actually gave a benefit to the plaintiff, such as the payment of the wrongly incurred fees. Moreover, even if the defendant had plead the plaintiff’s receipt of a benefit, he has not plead a detriment that he suffered as a result of the plaintiff’s receipt of such a benefit. Accordingly, the plaintiff’s fifth special defense, which alleges that the defendant failed to plead sufficient facts to support his counterclaims, properly alleges that the defendant’s ninth counterclaim is factually insufficient to support a claim of unjust enrichment.
Because the plaintiff’s special defense is legally sufficient as to the defendant’s ninth counterclaim, this court need not address the special defense’s sufficiency as to the defendant’s other counterclaims. Accordingly, the defendant’s motion to strike the plaintiff’s fifth special defense is denied.
F.
Fraudulent Concealment
Lastly, the plaintiff brings a sixth special defense, which alleges that fraudulent concealment is inapplicable in the current action. The plaintiff brings this special defense on the grounds that (1) the defendant has not presented enough facts in which to support a fraudulent concealment claim; and (2) fraudulent concealment is inapplicable because fraudulent concealment tolls the statute of limitations, which cannot be done in a foreclosure action. The defendant moves to strike this special defense arguing that his claim has set forth sufficient facts to put the plaintiff on notice of the basis for his claim. In response, the plaintiff reiterates that the defendant has failed to present sufficient facts to support the required elements of a fraudulent concealment claim, in accordance with Flynn v. Bank of America, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-15-5014831-S (October 31, 2016, Heller, J.).
According to our General Statutes, fraudulent concealment is an equitable remedy that allows a moving party to continue with their claim even if it is time barred. General Statutes § 52-595. Section 52-595 provides in pertinent part, "[i]f any person, liable to an action by another, fraudulently conceals from him the existence of the cause of such action, such cause of action shall be deemed to accrue against such person so liable therefor at the time when the person entitled to sue thereon first discovers its existence." "Under our case law, to prove fraudulent concealment, the plaintiff is required to show: (1) the [defendant’s] actual awareness, rather than imputed knowledge, of the facts necessary to establish the plaintiff’s cause of action; (2) the [defendant’s] intentional concealment of these facts from the plaintiff; and (3) the [defendant’s] concealment of these facts was for the purpose of obtaining delay on the plaintiff’s part in filing a complaint on his cause of action." (Citation omitted.) Macellaio v. Newington Police Dept., 145 Conn.App. 426, 432, 75 A.3d 78 (2013); accord Flynn v. Bank of America, supra, Superior Court, Docket No. CV-15-5014831-S.
While fraudulent concealment will toll the statute of limitations in most cases, our courts have ruled that foreclosure actions are not precluded by the statute of limitations, diminishing the purpose of a claim of fraudulent concealment. See Federal Deposit Insurance Corp. v. Owen, 88 Conn.App. 806, 815, 873 A.2d 1003, cert. denied, 275 Conn. 902, 882 A.2d 670 (2005) (providing "the rule in Connecticut, as far back as the early nineteenth century, is that a statute of limitations does not bar a mortgage foreclosure"); Markham v. Smith, 119 Conn. 355, 359, 176 A. 880 (1935) ("the statute of limitations does not destroy the debt but merely bars the remedy").
Upon looking at the pleadings in the present case, the plaintiff has not argued that any of the defendant’s counterclaims are barred by the statute of limitations, thereby necessitating the defendant to plead fraudulent concealment. Moreover, even if a pleading of fraudulent concealment were applicable in this action, neither party could benefit from such a pleading as the statute of limitations cannot be tolled in a foreclosure proceedings. As a result, the plaintiff’s special defense, which claims that fraudulent concealment is inapplicable in this action, is a legally sufficient and correct statement of law. Accordingly, the court denies the defendant’s motion to strike the plaintiff’s sixth special defense.
IV
CONCLUSION
For the foregoing reasons, the court denies the defendant’s motion to strike the plaintiff’s first, second, third, fourth, fifth, and sixth special defenses.