Bank of America et al. as Trustee for Structured Asset Investment Loan Trus v. Grove Blidgen et al. (2011)

MEMORANDUM OF DECISION ON MOTION TO STRIKE SPECIAL DEFENSE AND COUNTERCLAIM

The plaintiff and counterclaim defendant, Bank of America, National Association as successor by merger to LaSalle Bank National Association, as Trustee for Structures Asset Investment Loan Trust, Mortgage Pass Through Certificates, Series 2004-6 for SAIL 2004-6 (“Bank of America”), has moved to strike the Fourth Special Defense and the Counterclaim, docket entry no. 118, Defendant's Revised Answer, Special Defense And Counterclaim dated June 28, 2010.

Factual and Procedural History

Bank of America commenced this foreclosure action on February 27, 2009.   On October 7, 2009, the defendant filed an Answer Special Defense and Counterclaim.   On December 23, 2009 Bank of America filed a Request to Revise which sought to have the defendant revise the original counterclaim.   Defendant failed to respond to the Request to Revise within thirty days and, therefore, the Request to Revise was deemed granted as of December 23, 2009 under Practice Book § 10-37.   On June 28, 2010 the court granted Bank of America's nonsuit against the defendant for failing to revise the counterclaim.

On June 28, 2010, the defendant filed the Revised Answer, Special Defense and Counterclaim.   The Fourth Special Defense, which was not present in the previous Answer, alleged that the plaintiff did not have standing to bring the action.

Discussion of Law and Ruling

A motion to strike is a proper method to challenge the legal sufficiency of a counterclaim.  Practice Book § 10-39;  Mingachos v. CBS, Inc., 196 Conn. 91, 108 (1985).   Bank of America argues that the Fourth Special Defense must be stricken for both procedural and substantive reasons.

The defendant did not amend his special defenses by either consent of the adverse party or order of the judicial authority in violation of Practice Book § 10-60.   Therefore, it must be stricken on procedural grounds.   Moreover, on October 1, 2009, the original plaintiff moved to substitute Bank of America as plaintiff in this action and the defendant filed no objection.   The motion to substitute was granted by the court.   Therefore, Bank of America is the proper plaintiff.

A nonsuited party must move to open the nonsuit before he may file additional pleadings.   See Connecticut General Statutes §§ 52-212, 52-259c, PRI Capital Group, LLC v. Eastern Capital Funding, LLC, 90 Conn.App. 1, 3 (2005).   In this case the defendant was nonsuited for failure to revise his counterclaim in accordance with the Request to Revise.   He has not opened that nonsuit, but instead, has merely filed a Revised Counterclaim of June 28, 2010, which is, hereby, ordered stricken.

By the court

Aurigemma, J.

Aurigemma, Julia L., J.