JP NA v. Istrate Ionescu et al. (2011)

MEMORANDUM OF DECISION ON PLAINTIFF'S MOTION TO STRIKE

FACTUAL BACKGROUND

The plaintiff, J.P. Morgan Chase Bank, N.A., initiated the present action by service of process against the defendants, Istrate Ionescu and the United States of America, Internal Revenue Service, on October 21, 2009.¹  The complaint alleges the following relevant facts.   On or about March 14, 2007, the defendant mortgaged property located at 1435 North Avenue in Stratford (the property) in order to secure a note executed on that date in the amount of $200,000.00.   The defendant has defaulted on the note, and the plaintiff has elected to accelerate the balance due on the note and foreclose on the mortgage securing the note.   The city of Stratford, PNC Bank andAhlbin Centers have interests in the property that are prior in right to the plaintiff's interest.   The United States of America, Internal Revenue Service has an interest in the property that is subsequent in right to the plaintiffs interest.   Attached to the complaint are copies of the notice provided to the defendant under General Statutes § 49-31d and the plaintiff's lis pendens.

The defendant filed a motion to strike the complaint and a memorandum of law in support thereof on June 21, 2010.   The ground for the motion was defective notice.   The plaintiff in turn filed an objection to the motion and a memorandum of law in support thereof on July 8, 2010.   This court denied the defendant's motion and sustained the plaintiff's objection on July 22, 2010.   The defendant then filed an answer, special defenses and counterclaims on August 5, 2010.   He alleges the following facts in support of his special defenses and counterclaims.   During a hearing held on May 25, 2010, the plaintiff introduced evidence of an appraisal showing that the value of the property is a “fraction” of the value of the note.   The plaintiff thus “failed to get a proper property appraisal before issuing the loan and fraudulently failed to assure that the value of the property would support the loan thus inducing Defendant to enter to his detriment into this alleged mortgage.”

The defendant raises the following seven special defenses.   The first special defense sounds in fraud.   The second special defense sounds in failure to provide notice under General Statutes § 49-6d.   The third special defense sounds in breach of the covenant of good faith and fair dealing.   The fourth special defense sounds in unclean hands.   The fifth special defense sounds in equitable estoppel.   The sixth special defense sounds in violation of the Connecticut Unfair Trade Practices Act (CUTPA).   Finally, the seventh special defense sounds in negligent misrepresentation.   The defendant also raises seven counterclaims that correspond to the seven special defenses by incorporating the allegations made with respect to the special defenses into the counterclaims.

The plaintiff filed the present motion to strike and a memorandum of law in support thereof on October 1, 2010.   The defendant in turn filed an objection to the motion and a memorandum of law in support thereof on October 26, 2010.   The court heard the matter at short calendar on November 29, 2010.   The defendant subsequently filed a pleading on January 11, 2011, which consists of a supplemental memorandum of law in support of his objection to the present motion and a “motion for rescission.”

DISCUSSION

Practice Book § 10-39(a) provides in relevant part:  “Whenever any party wishes to contest ․ (1) the legal sufficiency of the allegations of any ․ counterclaim ․ or 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 ․ or any part of that answer including any special defense contained therein, that party may do so by filing a motion to strike the contested pleading or part thereof.”  “A plaintiff can [move to strike] a special defense or counterclaim” Nowak v. Nowak, 175 Conn. 112, 116, 394 A.2d 716 (1978).  “[A] counterclaim is a cause of action existing in favor of the defendant against the plaintiff and on which the defendant might have secured affirmative relief had he sued the plaintiff in a separate action ․ A motion to strike tests the legal sufficiency of a cause of action and may properly be used to challenge the sufficiency of a counterclaim.”  (Internal quotation marks omitted.)   JP Morgan Chase Bank, Trustee v. Rodrigues, 109 Conn.App. 125, 131, 952 A.2d 56 (2008).   Similarly, a motion to strike with respect to a special defense is proper, because a special defense must consist of “[f]acts which are consistent with [the plaintiff's] statements [of fact] but show, notwithstanding, that the plaintiff has no cause of action”;  Practice Book § 10-50;  and “the total absence of any factual allegations” specific to the dispute “renders [it] legally insufficient.”   U.S. Bank National Assn. as Trustee v. Ascenzia, Superior Court, judicial district of New Haven, Docket No. CV 08 5022527 (July 30, 2009, Abrams, J.) (48 Conn. L. Rptr. 345, 346).

If any facts provable under the express and implied allegations in a pleading challenged on a motion to strike support a cause of action, the pleading is not vulnerable to the motion to strike.   See Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991).   A court deciding a motion to strike must construe the challenged pleading “in the manner most favorable to sustaining its legal sufficiency.”  (Internal quotation marks omitted.)  American Progressive Life & Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009).   To this end, “all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted,” and the challenged pleading “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, 253, 990 A.2d 206 (2010).  “A motion to strike admits all facts well pleaded;  it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings.”  (Emphasis in original;  internal quotation marks omitted.)  Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997).

“[I]t is the established policy of the Connecticut courts to be solicitous of pro se litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the pro se party.”  (Internal quotation marks omitted.)  American Express Centurion Bank v. Head, 115 Conn.App. 10, 11 n.1, 971 A.2d 90 (2009).   Nevertheless, “[t]here are no special rules authorizing a lesser standard of compliance for pro se parties.   Any litigant may choose to proceed without representation, but all are bound by the same standards.”  Basilicato v. Dept. of Public Utility Control, 197 Conn. 320, 324, 497 A.2d 48 (1985), overruled on other grounds by LeConche v. Elligers, 215 Conn. 701, 579 A.2d 1 (1990).

The court begins by addressing the defendant's supplemental memorandum.   In his supplemental memorandum, the defendant argues that he has stated legally sufficient special defenses and counterclaims in light of two facts of which the defendant learned after the November 29, 2010 short calendar hearing through discovery.   These two facts are that the plaintiff conducted neither an appraisal of the property nor a credit verification of the defendant before it issued the mortgage.   In ruling on a motion to strike, the court is limited to the facts alleged in the challenged pleading.   See Faulkner v. United Technologies Corp., supra, 240 Conn. 580.   The two facts proffered by the defendant in his supplemental memorandum have not been made a part of his answer, special defenses and counterclaims.   Therefore, the court will not consider them in deciding the present motion.   The court will now address each of the defendant's special defenses and counterclaims.²

A First Special Defense and First Counterclaim:  Fraud

The plaintiff moves to strike the first special defense and first counterclaim on the ground that the defendant's factual allegations do not fulfill the criteria for a fraud cause of action.   The defendant objects by arguing that he has alleged sufficient facts, because a property's value is a factual statement, and the plaintiff intentionally misrepresented the property's value to the defendant because it is a “profit oriented organization.”  “Fraud is an equitable defense to a foreclosure action ․ Fraud involves deception practiced in order to induce another to act to her detriment, and which causes that detrimental action ․ The four essential elements of fraud are (1) that a false representation of fact was made;  (2) that the party making the representation knew it to be false;  (3) that the representation was made to induce action by the other party;  and (4) that the other party did so act to her detriment.”  (Citation omitted;  internal quotation marks omitted.)   Chase Manhattan Mortgage Corp. v. Machado, 83 Conn.App. 183, 188, 850 A.2d 260 (2004).

The defendant in the present action does not directly or inferentially allege facts in the first special defense to demonstrate that the plaintiff knew that the property value listed in the appraisal was false.   Instead, he relies on his conclusory descriptions of the appraisal as not “proper” and the difference between the property value listed in the appraisal and the property value referenced during the May 25, 2010 hearing as being due to “intentional misrepresentation.”   These descriptions, without more, are opinions, not facts, and they are insufficient to support a special defense or counterclaim sounding in fraud.   The defendant argues in his first memorandum that “it is clear that Plaintiff maximized its profits intentionally” because it had “ample financial reasons for making a false representation of the value of the property on the high side.”   This argument, however, only addresses the potential motive underlying the plaintiff's conduct, not the plaintiff's actual knowledge.   The first special defense and first counterclaim are therefore legally insufficient, and the court grants the plaintiff's motion to strike them.

B Second Special Defense and Second Counterclaim:  Failure to Provide Notice Under § 49-6d

Section 49-6d provides:  “(a) Each creditor shall notify a consumer debtor in writing when a mortgage loan application is filed that such debtor:  (1) May have legal interests that differ from the creditor's;  (2) May not be required by the creditor to be represented by the creditor's attorney;  (3) May waive the right to be represented by an attorney;  (4) May direct any complaints concerning violations of this section to the Department of Banking. (b) The notice shall be written in plain language and shall be signed by the consumer debtor to acknowledge its receipt.”   The defendant alleges in his second special defense and second counterclaim that the plaintiff violated § 49-6d because it failed to notify the defendant that the two parties had different legal interests.   The plaintiff moves to strike the second special defense and second counterclaim on the ground that they do not relate to the making, validity or enforcement of the note or mortgage.   The defendant objects by arguing that the issue of whether the note or mortgage meets the requirements of § 49-6d is a factual determination that is inappropriate to make on a motion to strike.

“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.”  LaSalle National Bank v. Shook, 67 Conn.App. 93, 96-97, 787 A.2d 32 (2001).  “The rationale behind the making, validity or enforcement limitation is that special defenses which are not limited to the making, validity or enforcement of the note or mortgage fail to assert any connection with the subject matter of the foreclosure action and as such do not arise out of the same transaction as the foreclosure action.”  (Internal quotation marks omitted.)   Household Realty Corp. v. Kujawski, Superior Court, judicial district of Middlesex, Docket No. CV 08 5004992 (September 3, 2010, Burgdorff, J.).

In the present action, the defendant does not directly or inferentially allege that the plaintiff's failure to provide notice under § 49-6d was related to the making, validity or enforcement of the note or mortgage.   The defendant relies upon Sunset Mortgage v. Agolio, Superior Court, judicial district of New London, Docket No. CV 0569833 (June 14, 2005, Jones, J.), in arguing that he has alleged that the plaintiff's failure to provide statutorily mandated notice relates to the making, validity or enforcement of the note or mortgage.   Sunset Mortgage is inapposite, however, because the Sunset court denied the plaintiff mortgagee's motion to strike the defendant mortgagor's breach of contract counterclaim for the reason that the defendant sufficiently alleged that the plaintiff's failure to provide notice as required by the note was related to the making, validity or enforcement of the note.   In the present action, the defendant alleges that the plaintiff failed to provide notice as required by § 49-6d, not the note or mortgage.   The defendant also argues in objection to the motion that the court must deny the motion with respect to the second special defense and second counterclaim because whether they relate to the making, validity or enforcement of the note or mortgage is a question of fact that is outside the scope of the motion.   He has not, however, provided a factual predicate upon which to base such a question.   The second special defense and second counterclaim are therefore legally insufficient, and the court grants the plaintiff's motion to strike them.

C Third Special Defense and Third Counterclaim:  Breach of the Covenant of Good Faith and Fair Dealing

The plaintiff moves to strike the third special defense and third counterclaim on the ground that the defendant's factual allegations do not fulfill the criteria for a breach of the covenant of good faith and fair dealing cause of action.   The defendant objects by arguing that he has alleged sufficient facts, because the underlying contract is the note and mortgage, the plaintiff's defective appraisal is the conduct that injured his right to receive benefits under the note and mortgage and the plaintiff must have acted in bad faith because of its interest in maximizing its profit.

“Every contract carries an implied covenant of good faith and fair dealing requiring that neither party will do anything that will injure the right of the other to receive the benefits of the agreement.”  Habetz v. Condon, 224 Conn. 231, 238, 618 A.2d 501 (1992).  “[A]n action for breach of the covenant of good faith and fair dealing requires proof of three essential elements, which the [defendant] must duly plead:  first, that the plaintiff and the defendant were parties to a contract under which the [defendant] expected to receive certain benefits;  second, that the [plaintiff] engaged in conduct that injured the [defendant]'s right to receive some or all of those benefits;  and third, that when committing the acts by which it injured the [defendant]'s right to receive benefits [he] reasonably expected to receive under the contract, the [plaintiff] was acting in bad faith.”   Gonzalez v. Harte Subaru, Inc., Superior Court, judicial district of Hartford, Docket No. CV 10 6011240 (November 2, 2010, Sheldon, J.).

The defendant in the present action does not directly or inferentially allege facts sufficient to support a breach of the covenant of good faith and fair dealing cause of action.   In support of the third special defense and third counterclaim, he alleges only that “Plaintiff supplied a defective appraisal, benefitted by collecting loan origination and other fees for a mortgage against Defendant's property.   This mortgage was for an amount above the market value of the property.”   The defendant argues that he has alleged the existence of a contract between the parties because the mortgage and note are “implied and central to these proceedings” and therefore underlie his answer.   The court rejects this argument.  “The fact that in a special defense one must plead facts which are consistent with the allegations of the complaint does not relieve the defendants of the duty of providing the plaintiff with a plain and concise statement of the material facts on which they rely.   It does not enable the defendants to incorporate the factual claims of the plaintiff without stating them.”   Zdanis v. Sekeret, Superior Court, judicial district of Litchfield, Docket No. CV 01 0084641 (July 24, 2002, Moraghan, J.T.R.).   Because the defendant has not alleged the existence of a contract between the parties, he has not identified the contractual benefits that he was prevented from enjoying by the plaintiff's conduct.   The third special defense and third counterclaim are thus legally insufficient because the defendant's factual allegations cannot fulfill all three criteria for a breach of the covenant of good faith and fair dealing cause of action.   Accordingly, the court grants the plaintiff's motion to strike the third special defense and third counterclaim.

D Fourth Special Defense and Fourth Counterclaim:  Unclean Hands

“The doctrine of unclean hands expresses the principle that where a plaintiff seeks equitable relief, he must show that his conduct has been fair, equitable and honest as to the particular controversy in issue ․ Unless the plaintiff's conduct is of such a character as to be condemned and pronounced wrongful by honest and fair-minded people, the doctrine of unclean hands does not apply.”   (Internal quotation marks omitted.)  Thompson v. Orcutt, 257 Conn. 301, 310, 777 A.2d 670 (2001).  “The party seeking to invoke the clean hands doctrine to bar equitable relief must show that his opponent engaged in wilful misconduct with regard to the matter in litigation.”  (Internal quotation marks omitted.)  Ridgefield v. Eppoliti Realty Co., Inc., 71 Conn.App. 321, 335, 801 A.2d 902, cert. denied, 261 Conn. 933, 806 A.2d 1070 (2002).  “Wilful misconduct requires intentional conduct with the design to injure either actually entertained or to be implied from the conduct and circumstances ․ Not only the action producing the injury but the resulting injury also must be intentional.”  (Internal quotation marks omitted.)   TD Banknorth, N.A. v. Genesis Properties, LLC, Superior Court, judicial district of Danbury, Docket No. 085004597 (January 15, 2009, Sommer, J.).

The plaintiff in the present action moves to strike the fourth special defense and fourth counterclaim on the ground that the defendant has not alleged wilful misconduct.   The defendant objects by arguing that he has done so because “[f]ailing to provide an accurate appraisal/mortgage of subject property is ‘wilful misconduct,’ as it was motivated by profit, calculated to extract unduly high Plaintiff profits at Defendant's expense.”   The court agrees with the plaintiff.   In the fourth special defense and fourth counterclaim, the defendant alleges only that the plaintiff's failure “to provide an accurate valuation of the subject property thereby injuring Defendant” was “conduct to be condemned by honest and fair minded people.”  (Internal quotation marks omitted.)   This allegation, even when taken as admitted and viewed in the light most favorable to the defendant, cannot reasonably be read to state the intent underlying the plaintiff's conduct, let alone that such intent was the injury of the defendant.   The defendant's argument, made in his first memorandum, contains allegations that are not contained his fourth special defense and fourth counterclaim.   Therefore, they will not be considered by the court in deciding the present motion.   The fourth special defense and fourth counterclaim are thus legally insufficient, and the court grants the plaintiff's motion to strike them.

E Fifth Special Defense and Fifth Counterclaim:  Equitable Estoppel

“Equitable estoppel is the effect of the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed ․ as against another person, who has in good faith relied upon such conduct, and has been led thereby to change his position for the worse ․ Its two essential elements are that one party must do or say something which is intended or calculated to induce another to believe in the existence of certain facts and to act on that belief, and that the other party, influenced thereby, must change his position or do some act to his injury which he otherwise would not have done.”  (Citations omitted;  internal quotation marks omitted.)  Bozzi v. Bozzi, 177 Conn. 232, 241-42, 413 A.2d 834 (1979).  “It is fundamental that a person who claims an estoppel must show that he has exercised due diligence to know the truth, and that he not only did not know the true state of things but also lacked any reasonably available means of acquiring knowledge.”  (Internal quotation marks omitted.)   Celentano v. Oaks Condominium Assn., 265 Conn. 579, 615, 830 A.2d 164 (2003).

The plaintiff moves to strike the fifth special defense and fifth counterclaim on the ground that the defendant has alleged neither that the plaintiff intended to provide an inaccurate appraisal nor that he exercised due diligence in order to obtain an accurate appraisal.   The defendant objects by arguing that he has alleged sufficient facts to meet the two criteria for an equitable estoppel cause of action and that obtaining a second appraisal would have been costly, futile and unfair, given that he paid and relied upon the plaintiff to provide an accurate appraisal.   The court begins by rejecting the plaintiff's argument that the fifth special defense and fifth counterclaim are legally insufficient because the defendant has not alleged that he exercised due diligence to know the truth by obtaining a second appraisal.  “The due diligence requirement is only an evidentiary requirement for prevailing on a claim of equitable estoppel, not a pleading requirement to state such a claim.”  (Emphasis in original.)   Beckenstein v. Naier, Superior Court, judicial district of Hartford, Docket No. CV 08 5019254 (November 4, 2010, Sheldon, J.).

The court nonetheless concludes that the fifth special defense and fifth counterclaim are legally insufficient, because the defendant has pleaded legal conclusions, not factual allegations, to show that the plaintiff intended to induce the defendant's reliance with its conduct and that the defendant relied upon the plaintiff's conduct to his detriment.   In support of the fifth special defense and fifth counterclaim, the defendant alleges:  “Defendant was misled by Plaintiff's inaccurate property valuation to enter into a mortgage agreement to Defendant's detriment.   Defendant changed his position on the belief that Defendant's property had a higher than actual value.”   The court cannot read the allegation, even when taken as admitted and viewed in the light most favorable to the defendant, to state that the plaintiff provided the inaccurate appraisal in order to induce the defendant into signing the note and mortgage.   At the most, the allegation states that the appraisal was inaccurate and that the defendant changed his position in reliance upon it by entering into the note and mortgage, to his injury.   The fifth special defense and fifth counterclaim are therefore legally insufficient, and the court grants the plaintiff's motion to strike them.

F Sixth Special Defense and Sixth Counterclaim:  CUTPA

“[Section] 42-110b(a) provides that [n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.   It is well settled that in determining whether a practice violates CUTPA we have adopted the criteria set out in the cigarette rule by the federal trade commission for determining whether a practice is unfair:  (1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise-in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness;  (2) whether it is immoral, unethical, oppressive, or unscrupulous;  (3) whether it causes substantial injury to consumers, [competitors or other business persons] ․ All three criteria do not need to be satisfied to support a finding of unfairness.   A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three ․ Thus a violation of CUTPA may be established by showing either an actual deceptive practice ․ or a practice amounting to a violation of public policy ․ In order to enforce this prohibition, CUTPA provides a private cause of action to [a]ny person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a [prohibited] method, act or practice.”  (Citations omitted;  internal quotation marks omitted.)  Ramirez v. Health Net of Northeast, Inc., 285 Conn. 1, 18-19, 938 A.2d 576 (2008).  “An action under this section may not be brought more than three years after the occurrence of a violation of this chapter.”   General Statutes § 42-110g(f).

The plaintiff moves to strike the sixth special defense and sixth counterclaim on the ground that the three-year statute of limitations for a CUTPA cause of action has passed in the present action, because the parties entered into the note and mortgage on March 14, 2007, and the defendant filed his answer, special defenses and counterclaims on August 5, 2010.   The plaintiff also moves on the ground that the defendant's factual allegations fail to meet the “cigarette rule” criteria.   The defendant objects by arguing that he has alleged sufficient facts and that the court should consider the plaintiff's conduct not only during the time of the appraisal but also during the course of the parties' relationship as mortgagee and mortgagor, up to and including now.   The court agrees with the plaintiff.

“[O]rdinarily, [a] claim that an action is barred by the lapse of the statute of limitations must be pleaded as a special defense, not raised by a motion to strike.”  (Internal quotation marks omitted.)  Greco v. United Technologies Corp., 277 Conn. 337, 344 n.12, 890 A.2d 1269 (2006).  “[T]here are two exceptions to that holding.   Those exceptions relate to situations in which a motion to strike, filed instead of a special defense of a statute of limitations, would be permitted.”  (Internal quotation marks omitted.)   Girard v. Weiss, 43 Conn.App. 397, 415, 682 A.2d 1078, cert. denied, 239 Conn. 946, 686 A.2d 121 (1996).   One of the exceptions “exists ․ when a statute gives a right of action which did not exist at common law, and fixes the time within which the right must be enforced, the time fixed is a limitation or condition attached to the right-it is a limitation of the liability itself as created, and not of the remedy alone.”  (Internal quotation marks omitted.)  Greco v. United Technologies Corp., supra, 277 Conn. 344-45 n. 12.   This exception has been applied to CUTPA causes of action in deciding motions to strike.   See, e.g., Kearney v. Thibault, Superior Court, judicial district of New Britain, Docket No. CV 09 5011018 (June 16, 2009, Tanzer, J.) (48 Conn. L. Rptr. 177).

The violation upon which the defendant bases the sixth special defense and sixth counterclaim is the plaintiff's provision of the inaccurate appraisal and its use of the appraisal in determining the terms of the defendant's note and mortgage, not the plaintiff's conduct over the course of the parties' relationship as mortgagor and mortgagee.   Because the defendant alleges that the appraisal occurred before the parties entered into the note and mortgage on March 14, 2007, the defendant's CUTPA special defense and counterclaim must have been filed by before March 14, 2010 in order to be timely.   They were not and are therefore legally insufficient.   The court accordingly grants the plaintiff's motion to strike them.

G Seventh Special Defense and Seventh Counterclaim:  Negligent Misrepresentation

The plaintiff moves to strike the seventh special defense and seventh counterclaim on the ground that the defendant's factual allegations cannot fulfill the criteria for a negligent misrepresentation cause of action.   The defendant objects by arguing that he has alleged sufficient facts because he has alleged that the plaintiff breached its fiduciary duty to him.  “[T]o establish the claim of negligent misrepresentation as a defense in [a] foreclosure action, the [defendant has] to establish (1) that the [plaintiff] made a misrepresentation of fact (2) that the [plaintiff] knew or should have known was false, and that (3) the [defendant] reasonably relied on the misrepresentation, and (4) suffered pecuniary harm as a result.”  Johnnycake Mountain Associates v. Ochs, 104 Conn.App. 194, 200, 932 A.2d 472 (2007), cert. denied, 286 Conn. 906, 944 A.2d 978 (2008).

The defendant in the present action does not directly or inferentially allege with sufficient facts that the plaintiff knew or should have known that the appraisal was false.   Instead, the defendant has only alleged in conclusory fashion that “Plaintiff, a well known major bank, knew or should have known that Defendant's property was overvalued for mortgage purposes at the time the alleged mortgage was granted.”   The defendant's argument that “Plaintiff has proven in Court that it has the capability to extrapolate property values into the future for substantial time periods” and that “Plaintiff should have used that capability to extrapolate at the time of entering into the subject mortgage” does not support his negligent misrepresentation cause of action and special defense, because it addresses only the accuracy of the appraisal, not whether the plaintiff knew or should have known of its falsity.   The seventh special defense and seventh counterclaim are therefore legally insufficient, and the court grants the plaintiff's motion to strike them.

CONCLUSION

For the foregoing reasons, the court grants the plaintiff's motion to strike the defendant's seven special defenses and seven counterclaims.

Hartmere, J.

FOOTNOTES

FN1. Because Ionescu is the only defendant involved in the present motion, the court hereinafter will refer to him as the defendant..  FN1. Because Ionescu is the only defendant involved in the present motion, the court hereinafter will refer to him as the defendant.

FN2. Because the defendant's seven special defenses and seven counterclaims are substantively identical, the court will address them together in deciding the present motion..  FN2. Because the defendant's seven special defenses and seven counterclaims are substantively identical, the court will address them together in deciding the present motion.

Hartmere, Michael, J.