People's United Bank v. Leroy Clemons et al. (2011)

MEMORANDUM OF DECISION

Plaintiff, People's United Bank, renews its motion for summary judgment against defendants, Leroy Clemons and Irma Clemons.   Since the previous motion, defendants have interposed an answer and a special defense sounding in laches, and Leroy Clemons has filed an opposing affidavit.

Defendants' brief asserts “The defendants Leroy Clemons and Irma Clemons rely on their Answers and Special Defenses which have been filed in this matter to establish the existence of disputed material facts.”   That reliance is misplaced.   Answers and special defenses are not the bases for opposing motions for summary judgment.   Only affidavits are.

In an opposing affidavit defendant Leroy Clemons states that for the past sixteen years he has been unable to obtain documentation relating to the original transaction because prior counsel destroyed the files after ten years, and defendant Irma Clemons has lost the documentation.   Mr. Clemons states, “All of the foregoing reasons have created a prejudicial delay on the part of the Plaintiff which have made it impossible for me to effectively raise the defenses to which I would have normally been entitled to, and including setoff, accord and satisfaction, equitable estoppel, and other defenses which may have been applicable.”

The defense of laches has two elements:  (1) “an unreasonable inexcusable” delay, and (2) the delay is “unduly prejudicial” to the defendant.  Cummings v. Tripp, 204 Conn. 67, 88 (1987).   The facts are as follows:

When plaintiff placed their mortgages on defendants' properties, there were prior mortgages in amounts which exceeded the value of the properties.   At the time defendants defaulted on the two mortgages which are the subject of this action, the plaintiff defended the foreclosure actions on the prior mortgages.   The last mortgage was released in February 2006.   Plaintiff started this action in September 2008.

Given this set of facts, plaintiff's delay in bringing a foreclosure action against the defendants was reasonable and excusable.   It was not required to bring a foreclosure action when it would receive no benefit from it.   There was every good reason for the plaintiff to delay bringing this action until the prior mortgages were released.   Its delay was not “unreasonable or inexcusable.”   Thus, defendants have failed to raise a material issue of fact to support an essential element of this defense of laches.

The defendant Leroy Clemons' opposing affidavit further states that the unavailability of the documents of the original transaction has caused him prejudicial delay, making it impossible for him to raise defenses such as setoff, accord and satisfaction, equitable estoppel and other defenses.   Such an assertion is pure speculation.

In April 2010, this court gave to the defendants four months to conduct discovery to find the documents to support any defenses they may have.   They failed to exercise that right and have conducted no discovery over the past eleven months.   They have even failed to request that plaintiff produce documents.   It is unlikely that even if a trial were held, they could support their purported defenses.   Moreover, Leroy Clemons has lived in one property subject to plaintiff's mortgage without paying the mortgage and he has been collecting the rents on the other property subject to the mortgage, likewise, without paying anything on the mortgage.   Thus, they have failed to raise a material issue of fact as to a prejudicial delay to support their defense of laches.

As a consequence, the court concludes plaintiff's renewed motion for summary judgment may be granted.

Satter, JTR

Satter, Robert, J.T.R.