City of Norwich v. Elissa Speer et al. (2012)

MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (# 114)

The plaintiff, City of Norwich (hereinafter “plaintiff”), has filed a motion for summary judgment in its tax lien foreclosure against Elissa Speer (hereinafter “defendant”).   Both parties briefed the issue and argument was had on short calendar hearing date of March 5, 2012.

Background

The plaintiff commenced this action by filing of a complaint with a return date of September 20, 2011 (hereinafter “Complaint”).   The Complaint was brought in three counts and sought the foreclosure of municipal tax liens on property known as 8 Clay Avenue, Norwich, Connecticut.   On October 5, 2011, the defendant filed her answer, special defenses and counterclaim.   On October 25, 2011, the plaintiff filed its motion to strike the special defenses and counterclaims, which was granted by this court on January 9, 2012 by agreement of counsel for the defendant who appeared at a short calendar hearing.   Pursuant to Connecticut Practice Book § 10–44, the defendant had fifteen days after the granting of the motion to strike to file a new pleading.   The time period to file a new pleading has since passed.   The defendant has not filed a new pleading.

The defendant in her answer admits owning the subject property.   She claims to have sufficient information concerning whether the tax was assessed and became due.   She denies, in part, that the tax obligation has not been paid.   She admits that the lien was filed, but denies its validity.   She denies that there are no encumbrances senior to the municipal tax lien being foreclosure and denies that the mortgage on the subject property is subsequent to the tax liens.  (See Defendant's Answer to Plaintiff's Complaint dated October 5, 2011.)   The plaintiff files the instant motion for summary judgment claiming that the allegations contained in the defendant's answer fail as a matter of law.

Law:  Summary Judgment

“Practice Book § 17–49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.   In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.”  (Internal quotation marks omitted.)  Sherman v. Ronco, 294 Conn. 548, 553–54, 985 A.2d 1042 (2010).

“In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist.”  Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).  “In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact.   The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law.   The courts hold the movant to a strict standard.   To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact.”  “As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ․ When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ․ It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.   Mere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17–45].”  (Internal quotation marks omitted.)   Zielinski v. Kotsoris, 279 Conn. 312, 318–19, 901 A.2d 1207 (2006).

Analysis

The present controversy deals with a foreclosure of tax liens.   Defenses and/or counterclaims in tax lien foreclosures are limited to those relating to the making, validating or enforcement with the lien being foreclosed.   Middletown v. 180 Johnson Road, Inc., Sup.Ct., judicial district of Middlesex, Docket No. CV 97 0082578 (January 6, 1998) (Fineberg, J.);   Dime Savings Bank v. Albir, Sup.Ct. judicial district of Stamford–Norwalk at Stamford, Docket No. 93–0132582 (February 7, 1995) (D'Andrea, J.).

“No facts may be proved under either a general or special denial except such as show that the plaintiff's statements of fact are untrue.   Facts which are consistent with such statements but show, notwithstanding, that the plaintiff has no cause of action, must be specially alleged.”  (Internal quotation marks omitted.)   Citicorp Mortgage v. Imbruce et al., Superior Court, judicial district of Norwalk at Stamford, Docket No. 01730369 (March 15, 2000) (Hickey, J.).   Defenses such as “accord and satisfaction, arbitration and award, coverture, duress ․ payment, release ․ and res judicata must be specially pleaded.”  Id. If the defendant fails to specially plead these defenses, then under Connecticut Practice Book § 10–50, “the failure to do so renders any evidence on the subject inadmissible.”  Id.

In the instant case, the defendant's special defenses and counterclaims were stricken by this court on January 9, 2012.   The defendant failed to replead within the time period required by Connecticut Practice Book § 10–44.   Defenses to a tax lien foreclosure must be specially pled, which the defendant has not done in the present action.  Id. The defendant, in her answer, admits owning the subject property.   She claims to have insufficient information concerning whether the tax was assessed and became due.   She denies in part that the tax obligation has not been paid.   She admits that the lien was filed, but denies its validity.   Finally, she denies that there are no encumbrances senior to the municipal tax lien being foreclosure and denies that the mortgage on the subject property is subsequent to the tax liens.   The defendant has failed to specially plead any defenses to the present action.   As a matter of law, the plaintiff is entitled to summary judgment.

Order

The plaintiff's motion for summary judgment (# 114) as to all counts is hereby granted.

Devine, J.

Devine, James J., J.