Opinion
CV166030339S
10-23-2017
The Bank of New York Mellon fka the Bank of New York, Successor in Interest to JP Morgan Chase Bank, N.A. as Trustee for Structured Asset Mortgage Investments II, Inc., Bear Stearns ALT-A Trust, Mortgage Pass-Through Certificates, Series 2005-7 v. Javid I. Malick et al
UNPUBLISHED OPINION
OPINION
Mark H. Taylor, Judge.
I
BACKGROUND
The plaintiff, by way of motion filed with the court on August 17, 2017, moves to strike the special defenses and counterclaims asserted by the defendants, Javid Malick and Talat Malick, in this action to foreclose their mortgage. In their answer, filed with the court on April 27, 2017, the defendants allege two special defenses. The first is for breach of the implied warranty of good faith and fair dealing, and the second is for unclean hands. In addition, two counterclaims are alleged. The first is for breach of contract, and the second is for promissory estoppel.
In their first special defense, asserting breach of the implied warranty of good faith and fair dealing, the defendants allege that on March 10, 2011, they accepted a loan modification, and that consideration was exchanged for a modification agreement. The defendants further allege that funds were prepared to make payments in accordance with the modification. Based upon these essential allegations, the defendants conclude that the plaintiff breached its duties to the defendants by reneging on its promise to execute a final modification agreement and by defaulting them on the original mortgage note.
In their second special defense, asserting unclean hands, the defendants allege that, on the basis of the mortgage modification agreement, the plaintiff engaged in willful misconduct by reneging on its promise to execute a final modification agreement and by alleging a mortgage default. Based upon these allegations, the defendants conclude that the plaintiff should be equitably estopped from foreclosing their mortgage.
In their counterclaims, the defendants reassert the factual allegations of their special defenses, and in their first counterclaim, sounding in breach of contract, they allege that the plaintiff breached the modification agreement by defaulting their mortgage and initiating this action, causing them to incur damages. In their second counterclaim, sounding in promissory estoppel, the defendants allege that in making a clear and unambiguous promise that the loan agreement would be modified, the plaintiff should reasonably have expected the defendants to change their position in reliance upon the plaintiff's promises, which they did. Consequently, the defendants suffered further damages.
The court takes judicial notice of the following facts: In a prior foreclosure action between the same parties, Bank of New York v. Malick, Superior Court, judicial district of Waterbury, Docket No. CV-09-5013125-S, a mortgage modification was reported on April 1, 2011, by the court mediation specialist as accepted by the defendants. The matter was subsequently dismissed by the court six months later on October 28, 2011, for failure to prosecute pursuant to Practice Book § 14-3. The present foreclosure was filed with the court five years later on March 21, 2016. In the present case, the plaintiff alleges a default of the original underlying mortgage on October 1, 2008, and not a modified mortgage as previously reported to the court on April 1, 2011. The court assumes that the alleged 2008 default formed the basis of the previous foreclosure, although the specific date of default is not alleged in the earlier 2009 complaint.
The plaintiff has directed the attention of the court to a prior action to foreclose this mortgage. " [T]here is no question . . . concerning our power to take judicial notice of files of the Superior Court, whether the file is from the case at bar or otherwise[.]" (Internal quotation marks omitted.) Ajadi v. Commissioner of Correction, 280 Conn. 514, 522 n.13, 911 A.2d 712 (2006).
II
DISCUSSION
A
Motion to Strike
The court will begin with the legal standard applicable to motions to strike. Practice Book § 10-39(a) provides in relevant part: " A motion to strike shall be used whenever any party wishes to contest: (1) the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, or of any one or more counts thereof, to state a claim upon which relief can be granted . . . or (5) the legal sufficiency of any answer to any complaint, counterclaim or cross complaint, or any part of that answer including any special defense contained therein." " 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." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).
When deciding a motion to strike, the court must " take the facts to be those alleged in the complaint . . . and . . . construe the complaint in the manner most favorable to sustaining its legal sufficiency . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Moreover . . . [w]hat is necessarily implied [in an allegation] need not be expressly alleged . . . It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252-53, 990 A.2d 206 (2010).
B
The Plaintiff's Assertions
In moving to strike the defendants' counterclaims, the plaintiff asserts that they are not properly joined in that they arise " out of a wholly separate and independent claim, " and, therefore, fail " to attack the making, validity or enforcement of the Note or Mortgage." Pl.'s Mem, p. 10. The plaintiff then cites U.S. Bank, National Ass'n v. Sorrentino, 158 Conn.App. 84, 118 A.3d 607, cert. denied, 319 Conn. 951, 125 A.3d 530 (2015), in which the court held that " improper conduct during the foreclosure mediation program" failed the transaction test for a valid counterclaim to foreclosure. Id., 97. In the present case, however, there is an allegation of a new transaction, involving the modification of the original mortgage agreement.
Similarly, in moving to strike the defendants' special defenses, the plaintiff asserts that " entering into modifications . . . cannot relate to the making, validity or enforcement of the note and mortgage, " and, furthermore, that there is no legal obligation to enter into mortgage modification negotiations with a borrower in default. Pl.'s Mem., p. 11-12. The plaintiff further argues that, even assuming that a mortgage modification can form the basis of a counterclaim or defense to foreclosure, as asserted by the defendants, the plaintiff counters that the defendants' allegations of a modification lack the assertion of valid consideration.
This court has previously concluded that a valid modification may be raised as a defense to foreclosure. Everbank v. Engelhard, Superior Court, Judicial District of Waterbury, Docket No. CV-13-6019881, (July 28, 2016, Taylor, J.) See also TD Bank, N.A. v. M.J. Holdings, LLC, 143 Conn.App. 322, 333-34, 71 A.3d 541 (2013) (alleged mortgage modification presented legally sufficient special defense in foreclosure action as it related to validity or enforcement of note as purported modification would have allowed defendants to remain current on loan obligations). The court sees no reason to hold otherwise here. Furthermore, the same should apply to counterclaims for breach of contract, if based upon a valid modification, and to promissory estoppel. Id., 339, (distinguishing promissory estoppel, based upon " a clear and definite promise" from equitable estoppel, involving " only representations and inducements . . ."
The plaintiff additionally argues that consideration for the alleged modification has not been adequately pleaded by the defendants. " A modification of an agreement must be supported by valid consideration and requires a party to do, or promise to do, something further than, or .different from, that which he is already bound to do." Deutsche Bank Trust Co. Americas v. DeGennaro, 149 Conn.App. 784, 789, 89 A.3d 969 (2014). Although consideration has only been pleaded by the defendants in very general terms, the parties should be left to their proof in any future motion for summary judgment or at a trial on the merits of the case.
III
CONCLUSION
The motion to strike is denied.