BAC LP LP v. Lessitte Steer et al. (2011)

MEMORANDUM OF DECISION ON MOTION TO STRIKE COUNTERCLAIMS AND SPECIAL DEFENSES (*108)

The plaintiff, BAC Home Loans Servicing, LP, has moved to strike the counterclaims and the special defenses of the defendant, Lessitte Steer, dated September 14, 2010, on the grounds that they are legally insufficient.   The counterclaims and special defenses are based largely on the erroneous assertion that the defendant's mortgage is invalid because all 30-year mortgages are invalid.

First Count of Counterclaim

The first count of the counterclaim alleges that the plaintiff committed fraud when it induced the defendant to sign a thirty-year mortgage which the defendant claims violates Section 28, Clause 5 of the National Bank Act. That section was repealed by Pub. L 103-325, Title VI, § 602(e)(1) on September 23, 1994, prior to the execution of the subject mortgage.   The first count of the counterclaim has no legal basis and is ordered stricken.

Second Count of the Counterclaim

The second count of the counterclaim alleges that the plaintiff “has a duty to abide by the law ․ the directors of Bank of America, N.A. must swear/affirm an oath to not violate or permit to be violated the Statutes of the United State of America, specifically, the National Currency Act ․ has a legal and moral duty of good faith and fair dealing.”   Counterclaims that do not attack the making, validity or enforcement of the note or mortgage are irrelevant to mortgage foreclosure action.  New Haven Savings Bank v. LaPlace, 66 Conn.App. 1, 10-11 (2002).   The allegations of the second count of the counterclaim do not go to the making, enforcement or validity of the note.   There is no authority to support the defendant's ridiculous assertion that every mortgage must be accompanied by an oath of the mortgagee bank's directors.   The second count is ordered stricken.

Third Count of the Counterclaim

The third count of the counterclaim alleges that the plaintiff was grossly negligent by perpetrating and benefiting from “illegal, immoral and unconscionable acts” and “by violating and allowing to be violated the statutes mentioned,” and as a result of these alleged actions, the defendant “has suffered mental anguish, suffering and monetary damage in the amount of $303,000.”   The defendant has alleged absolutely no facts to support any cause of action for gross negligence or even negligence.   The third count is, therefore, ordered stricken.

Fourth and Fifth Counts of the Counterclaim

The fourth and the fifth counts of the counterclaim are not claims, but, rather, discovery requests and motions and are ordered stricken.

Sixth Count of the Counterclaim

The sixth count of the counterclaim is more of a claim for relief than a cause of action.   The defendant demands a jury trial.  “It is well settled that the right to a jury trial under article first, Sec. 19, of the Connecticut constitution, as amended, does not include a right to a jury trial in an equitable action.”  Texaco, Inc. v. Golart, 206 Conn. 454, 458 (1988).   An action of foreclosure is peculiarly equitable.  Hartford Federal Savings & Loan Association v. Tucker, 196 Conn. 172, 175 (1985).   The sixth and final “count” of the counterclaim is ordered stricken.

Based on the foregoing, the entire counterclaim is stricken.

First Special Defense

The first special defense alleges that the complaint fails to state a cause of action.   A special defense must do more than set forth mere legal conclusion that the plaintiff has no cause of action.   It must allege facts showing that the plaintiff has no cause of action.  Practice Book § 10-50.   The plaintiff has provided no factual allegations to support her first special defense.   Moreover, the plaintiff has stated a claim for foreclosure of a mortgage against the defendant's property at 641 Middle Turnpike West, Manchester, Connecticut.   The first special defense is stricken.

Second Special Defense

The second special defense purports to state a defense of unclean hands.   The defense of unclean hands to a mortgage foreclosure has generally been disallowed in this state unless it attacks the making, validity or enforcement of the note or mortgage.  Mechanics & Farmers Savings Bank, FSB v. Delco Dev. Co. 43 Conn.Sup. 408, 420-21 (1993).  Thompson v. Orcutt, 257 Conn. 301, 311-12 (2001).   The defendant has not provided any factual allegations to support her second special defense and it is stricken.

Fifth Special Defense

The fifth special defense asserts “this answering Defendant alleges that the Plaintiff herein, and each and every Cause of Action contained in the Complaint are barred by reason of acts, omissions, representations and courses of conduct by plaintiff by which defendant was led to rely to the detriment, thereby barring under the doctrine of equitable estoppel, any Causes of Action asserted by the Plaintiff.”

Equitable estoppel has been recognized as a defense in a foreclosure action.   It requires proof of two elements:  1) a statement or action by the party against whom estoppel is claimed designed to induce reliance on that statement or action;  and 2) a changed position by the second party in reliance on the act or statement of the first that results in loss or injury to the second party.   For estoppel to exist, there must be misleading conduct resulting in prejudice to the other party.  Blackwell v. Mahmood, 120 Conn.App. 690, 694-95, 992 A.2d 1219 (2010).

The defendant has failed to provide any factual allegations to support the fifth special defense and it is stricken.

Third and Ninth Special Defenses

The third and ninth special defenses appear to allege setoff and recoupment.   As with the other special defenses, they contain absolutely no factual bases.   At best, a claim of setoff and recoupment would go to the finding of the actual debt at the time of judgment and not to liability under the terms of the note and mortgage.   The third and ninth special defenses are stricken.

Fourth, Sixth, Seventh and Eighth Special Defenses

As her fourth, sixth, seventh and eighth special defenses, defendant asserts.

4. This answering Defendant alleges that the Plaintiff herein and each and every purported Cause of Action in the Complaint are barred because Plaintiff has engaged in acts and course of conduct which rendered them in pari delicto ․

6.  This answering Defendant alleges that the Plaintiff is barred by the applicable provisions of the Civil Code, i.e., the Statute of Frauds.   Plaintiff is without a mutual contract wherein Defendant has “a meeting of the minds.”   Plaintiff's action is fraudulent.

7. This answering Defendant alleges that the Plaintiff herein and each and every purported Cause of Action in the Complaint are barred as a result of a failure of consideration.

8. This answering Defendant is informed and believes and on such information and belief alleges that the contract alleged in the complaint, if any, has been substantially and/or partially performed, by another party, and as such, is subject to divisibility.

The fourth, sixth, seventh and eighth special defenses do not allege any facts and even if they did, they do not attack the making, validity or enforcement of the note or mortgage.   They are ordered stricken.

For the reasons set forth above all of the special defenses are ordered stricken.

By the Court

Aurigemma, J.

Aurigemma, Julia L., J.