Citimortgage, Inc. v. Jerry Rowe et al. (2011)

MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION TO STRIKE (# 107.00)

This is an action brought by plaintiff CitiMortgage seeking foreclosure of a mortgage to Jerry Rowe. Defendant Christine Pantanella, a subsequent encumbrancer and former owner of the affected premises has raised several special defenses and asserted two counterclaims, all of which relate to the allegedly fraudulent transaction that resulted in the transfer of the property from Rowe to Pantanella.   By Motion dated June 18, 2009, plaintiff seeks to strike defendant Pantanella's special defenses and counterclaims.   After a long delay, plaintiff claimed this Motion for oral argument, which was held on March 28, 2011.   While defendant's counsel appeared at oral argument, no Memorandum in Opposition was filed.

Defendant Christine Pantanella's special defenses and counterclaims contain specific allegations about defendant Rowe's nefarious behavior accompanying the transfer of the property.   Whether she can prove these claims is not at issue at this juncture of the proceedings.  “A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court.”  Bernhard–Thomas Building Systems, LLC v. Dunican, 286 Conn. 548, 552–53 (2008).  “Practice Book § 10–39(a) provides:  Whenever any party wishes to contest ․ 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, that party may do so by filing a motion to strike the contested pleading or part thereof.”  (Internal quotation marks omitted.)  Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 256 n.20, 905 A.2d 1165 (2006).  “In ․ ruling on the ․ motion to strike, the trial court [is obligated] to take the facts to be those alleged in the special defenses and to construe the defenses in the manner most favorable to sustaining their legal sufficiency.”  Connecticut National Bank v. Douglas, 221 Conn. 530, 536, 606 A.2d 684 (1992).  “The allegations of the pleading involved are entitled to the same favorable construction a trier would be required to give in admitting evidence under them and if the facts provable under its allegations would support a defense or a cause of action, the motion to strike must fail.”  Mingachos v. CBS, Inc., 196 Conn. 91, 108–09 (1985).

The vast majority of special defenses raised in foreclosure actions are susceptible to motions to strike because they consist of mere legal conclusions or contain allegations regarding events that took place after the execution of the mortgage at issue.   In this case, however, while the special defenses and counterclaims are factually specific, they relate to the relationship and transaction between the co-defendants rather than the making, validity or enforcement of the mortgage at issue.  “[A] foreclosure action constitutes an equitable proceeding ․ In an equitable proceeding, the trial court may examine all relevant factors to ensure that complete justice is done ․ The determination of what equity requires in a particular case, the balancing of the equities, is a matter for the discretion of the trial court ․ Historically, defenses to a foreclosure action have been limited to payment, discharge, release or satisfaction ․ or, if there had never been a valid lien ․ The purpose of a special defense is to plead facts that are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action ․ 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 ․ Where the plaintiff's conduct is inequitable, a court may withhold foreclosure on equitable considerations and principles ․ Furthermore, if the mortgagor is prevented by accident, mistake or fraud, from fulfilling a condition of the mortgage, foreclosure cannot be had ․” (Citations omitted;  internal quotation marks omitted.)  LaSalle National Bank v. Shook, 67 Conn.App. 93, 96–97 (2001).   The same limitations appear to apply to counterclaims:  “The rationale behind this is that counterclaims and 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 of the foreclosure action and as such do not rise out of the same transaction as the foreclosure action.”   National Mortgage v. McMahon, Docket No. CV 349246, Judicial District of New Haven (February 18, 1994, Celotto, J.).

Given that plaintiff's special defenses and counterclaims relate to the actions of Ms. Pantanella's co-defendant, Mr. Rowe, rather than the making, validity, or enforcement of the mortgage at issue, they are not appropriately raised against plaintiff in this action and plaintiff's Motion to Strike is hereby granted in its entirety.

James W. Abrams, Judge

Abrams, James W., J.