Valley National Bank v. LLC (2012)

MEMORANDUM OF DECISION ON PLAINTIFF'S MOTION TO STRIKE (# 116)

FACTUAL BACKGROUND

On January 20, 2011, the plaintiff, Valley National Bank, filed a three-count complaint against the defendants, Private Transerve, LLC, John Tartaglia, Linda Tartaglia and Geoffrey Minte, as individuals.   The first and second counts sought foreclosure on two properties, 83–85 Randall Avenue, Bridgeport, Connecticut and 84–86 Randall Avenue, Bridgeport, Connecticut, respectively.   The third count, which is not at issue in the present matter, alleged breach of guaranty.   The facts of the complaint are alleged as follows.   On or about September 12, 2008, the defendant, Private Transerve,¹ entered into a secured revolving building promissory note for a loan of up to $500,000.00, modified by a mortgage and note modification agreement dated November 16, 2009.   The note was secured by a mortgage on the properties located at 83–85 and 84–86 Randall Avenue, Bridgeport, Connecticut and by an agreement modification dated January 26, 2009.   The mortgage note is in default due to the defendant's “failure to pay the monthly installments due of principal and interest since March 1, 2010.”   The plaintiff has “elected to accelerate the balance due on the note, to declare the note to be due in full and to foreclose on the mortgage securing the note.”   The defendant is the “owner of equity of redemption of the property and, on information and belief, is in possession of the property.”   On May 27, 2011, the defendants filed their answer, special defenses and counterclaims.   On December 13, 2011, the plaintiff filed its motion to strike the first and second special defenses to the first and second counts of complaint and a memorandum in support of the motion.   On December 29, 2011, the defendants filed their objection to the motion to strike.   On January 3, 2012, this matter was heard on the short calendar.

DISCUSSION

“[A] party may challenge the legal sufficiency of an adverse party's claim by filing a motion to strike.”  Vertex, Inc. v. Waterbury, 278 Conn. 557, 564, 898 A.2d 178 (2006).  “[A] plaintiff can [move to strike] a special defense ․” Nowak v. Nowak, 175 Conn. 112, 116, 394 A.2d 716 (1978);  see also Connecticut National Bank v. Voog, 233 Conn. 352, 354–55, 659 A.2d 172 (1995).  “In ․ ruling on the ․ motion to strike, the trial court recognized its obligation 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).  “[T]he total absence of any factual allegations” specific to the dispute “renders [the special defense] legally insufficient.”   (Internal quotation marks omitted.)   Branch v. Grogan–Barone, Superior Court, judicial district of New Britain, Docket No. CV 08 4018808 (May 2, 2011, Swienton, J.) “The Connecticut Supreme Court “will not uphold the granting of [a] motion to strike on a ground not alleged in the motion nor relied upon by the trial court.”  Blancato v. Feldspar Corp., 203 Conn. 34, 44, 522 A.2d 1235 (1987).   The appellate courts have concluded that they “are not required to review issues that have been improperly presented to [the] court through an inadequate brief ․ Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.”  (Internal quotation marks omitted.)  Hogan v. Dept. of Children & Families, 290 Conn. 545, 578, 964 A.2d 1213 (2009).   Where two of the grounds were not briefed for a motion to strike, the court “treat[ed] those issues as abandoned.”  State v. Bashura, 37 Conn.Sup. 745, 748–49, 436 A.2d 785 (App.Sess.1981).

The plaintiff argues in its motion that it is moving to strike the defendants' first and second special defenses of the first and second count of the complaint.   The plaintiff's memorandum, however, argues to strike the first, second and third special defenses of the first count and the second special defense of the second count.   The plaintiff argues in both the motion and the memorandum that these special defenses are inconsistent with the allegations in the complaint.   The defendant, in its memorandum of opposition, addressed the first and second special defenses to the first count, arguing that the special defenses are consistent with the complaint and withdrew the third special defense to the first count and the second special defense to the second count.   This discussion will analyze the defendants' first and second special defenses of the first count as the only special defenses that were written on the face of the motion, briefed in the memorandum and were not withdrawn by the defendant.   As this memorandum focuses solely on a motion to strike, the discussion will address the plaintiff's argument that the special defenses are inconsistent with the allegations in the complaint, rather than the merits of the special defenses.

Facts must be pleaded as a special defense when they are consistent with the allegations of the complaint.  Practice Book § 10–50.  “Generally speaking, facts must be pleaded as a special defense when they are consistent with the allegations of the complaint ․ The fundamental purpose of a special defense, like other pleadings, is to apprise the court and opposing counsel of the issues to be tried, so that basic issues are not concealed until the trial is underway.”  (Citations omitted;  internal quotation marks omitted.)  Almada v. Wausau Business Ins. Co., 274 Conn. 449, 456, 876 A.2d 535 (2005).

The first and second special defenses to count one involve a document referred to as the “mortgage spreader.”   Though the complaint references a modified “agreement” dated January 26, 2009 “and the special defenses mention a “mortgage spreader,” these refer to the same document.   In fact, the special defenses utilize language taken directly from the modified agreement and indicate that the language is from the mortgage spreader.   The special defenses solely regard the modified agreement or mortgage spreader and its viability.   Because this is a motion to strike based only on the alleged inconsistency of facts, the merits of the argument cannot be reached at this point.   The facts alleged in the special defenses and complaint, which involve the same agreement by a different name are consistent.   Consequently, the plaintiff's argument that the special defenses “are not consistent with the allegations in the plaintiff's complaint” must fail.

CONCLUSION

Based on the foregoing, the court will deny the motion to strike.

HARTMERE, J.

FOOTNOTES

FN1. John Tartaglia, Linda Tartaglia and Geoffrey Minte are not involved in the present matter and “defendant” will refer solely to Private Transerve in this memorandum..  FN1. John Tartaglia, Linda Tartaglia and Geoffrey Minte are not involved in the present matter and “defendant” will refer solely to Private Transerve in this memorandum.

Hartmere, Michael, J.