Savings Bank of Danbury v. 60 LLC (2013)

MEMORANDUM OF DECISION RE MOTION TO STRIKE (# 146)

PROCEDURAL HISTORY

The plaintiff, Savings Bank of Danbury, commenced the present action against the defendants, 60 Shelter Rock Associates, LLC, Stuart L. Longman, Gayla G. Longman, Lurie Investments, LLC and Savings Bank of Danbury, by service of a summons and complaint on April 6, 2011.   The two-count complaint, sounding in default upon a note secured by mortgage, requested a foreclosure upon the subject property and a deficiency judgment against the individual guarantors.   The complaint alleges that the parties entered into a loan agreement on April 9, 2008 for the sum of $5,325,000, secured by a mortgage on certain property located on Shelter Rock Road in Danbury.   The terms of the note stated that the amount became payable with interest on April 1, 2010.   The plaintiff served notice to the defendants on August 31, 2010 that payment had not been received.

On June 1, 2012, the defendants filed an amended answer with thirty-one special defenses and eleven counterclaims.   The plaintiff filed a motion to strike with an accompanying memorandum on December 11, 2012, seeking to strike all of the special defenses and counterclaims.   The defendants filed a memorandum in objection on January 22, 2013, in which they agreed to withdraw and replead the first, nineteenth, twenty-second and twenty-third special defenses and all of the counterclaims.   The plaintiff filed a memorandum in reply addressing the remaining twenty-seven special defenses on February 13, 2013.

DISCUSSION

“The purpose of a motion to strike is to contest ․ the legal sufficiency of the allegations of any complaint ․ to state a claim upon which relief can be granted.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).

“It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted.”   (Internal quotation marks omitted.)  Coe v. Board of Education, 301 Conn. 112, 116–17, 19 A.3d 640 (2011).  “[P]leadings must be construed broadly and realistically, rather than narrowly and technically.”  (Internal quotation marks omitted.)   Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 253, 990 A.2d 206 (2010).   The court takes “the facts to be those alleged in the complaint ․ and ․ construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency.”   (Internal quotation marks omitted.)  New London County Mutual Ins. Co. v. Nantes, 303 Conn. 737, 747, 36 A.3d 224 (2012).  “Moreover [the court notes] that [w]hat is necessarily implied [in an allegation] need not be expressly alleged.”  (Internal quotation marks omitted.)  Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, supra, 295 Conn. 252.  “A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.”  (Internal quotation marks omitted.)  Bridgeport Harbour Place I, LLC v. Ganim, 303 Conn. 205, 213, 32 A.3d 296 (2011).

“[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) (plaintiff moved to strike special defense that there is no duty for a lender to investigate a borrower's motives or financial status).  “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.”  Grant v. Bassman, 221 Conn. 465, 472–73, 604 A.2d 814 (1992);  see also Practice Book § 10–50.  “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.”   (Internal quotation marks omitted.)  Chapman v. Norfolk & Dedham Mutual Fire Ins. Co., 39 Conn.App. 306, 332, 665 A.2d 112, cert. denied, 235 Conn. 925, 666 A.2d 1185 (1995).

“Because a mortgage foreclosure action is an equitable proceeding, the trial court may consider all relevant circumstances 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 ․ Where the plaintiff's conduct is inequitable, a court may withhold foreclosure on equitable considerations and principles.”  (Citations omitted, internal quotation marks omitted.)  Southbridge Assoc. v. Garofalo, 53 Conn.App. 11, 15, 728 A.2d 1114, cert. denied, 249 Conn. 919, 733 A.2d 229 (1999).  “At common law, the only defenses to an action of this character would have been payment, discharge, release or satisfaction ․ or, if there had never been a valid lien ․ Moreover, our courts have permitted several equitable defenses to a foreclosure action.   If the mortgagor is prevented by accident, mistake or fraud, from fulfilling a condition of the mortgage, foreclosure cannot be had ․ Other equitable defenses that our Supreme Court has recognized in foreclosure actions include unconscionability ․ abandonment of security ․ and usury.”  (Citations omitted, internal quotation marks omitted.)  Id., 15–16.  “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.”  LaSalle National Bank v. Shook, 67 Conn.App. 93, 96–97, 787 A.2d 32 (2001).

Request to Revise

The defendants argue at the outset that the plaintiff should properly have filed a request to revise instead of a motion to strike.   One of the grounds on which the plaintiff seeks to strike a majority of the special defenses at issue, the defendants contend, is a lack of factual support, which is properly challenged by a request to revise.   See Salzano v. Goulet, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 04 0287567 (September 22, 2005, Shluger, J.) [40 Conn. L. Rptr. 28];  The Poseidon Group, Inc. v. Bridgeport Hospital, Superior Court, judicial district of Fairfield, Docket No. 412740 (October 6, 2004, Levin, J.);   Durkin v. Durkin, Superior Court, complex litigation docket at Waterbury, Docket No. X01 CV 98 0158478 (April 5, 2001, Hodgson, J.);   and Bonaldi v. Carr, Superior Court, judicial district of Waterbury, Docket No. CV 06 5001101 (November 16, 2006, Gilligan, J.).   The plaintiff argues that our Supreme Court has recognized that a motion to strike is the proper vehicle to attack a claim based on a failure to plead sufficient facts.  Cavallo v. Derby Savings Bank, 188 Conn. 281, 285–86, 449 A.2d 986 (1982) and Ivler v. Stanton, 161 Conn. 568, 570 287 A.2d 742 (1971).

Practice Book § 10–39, which governs motions to strike, states in relevant part:  (a) “Whenever any party wishes to contest ․ (5) 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.”   A request to revise is governed by Practice Book § 10–35, which states:  “[w]henever any party desires to obtain (1) a more complete or particular statement of the allegations of an adverse party's pleading ․ [they] may file a timely request to revise that pleading.”   Connecticut superior courts have used requests to revise as a tool to clarify and eliminate irrelevant information:  “[A] motion to strike is not the proper vehicle for elimination of irrelevant, immaterial or otherwise improper allegations.   The proper vehicle would be a request to revise.”  (Internal quotation marks omitted.)   Deutsche Bank National Trust Co. v. Medina, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 08 5006907 (January 10, 2011, Mintz, J.) (51 Conn. L. Rptr. 270, 277).  “[T]he proper way to cure any confusion [regarding the complaint] is to file a [request] to revise, not a motion to strike the entire complaint ․ If a request to revise had been granted and complied with, the defendants would then have been in a position to move to strike any count of the plaintiff's revised complaint pertaining to their respective liabilities for which the plaintiff was unable to allege the necessary prerequisites.”  (Citation omitted.)  Rowe v. Godou, 209 Conn. 273, 279, 550 A.2d 1073 (1988).   The plaintiff lists multiple grounds, including factual insufficiency, on which it alleges that the present motion should be granted.   A request to revise is not the proper vehicle for addressing a failure to plead sufficient facts, but rather to clarify facts pleaded ambiguously or to eliminate improper allegations.  Id.

“Commercially Unreasonable Manner”

The second and third special defenses allege that the plaintiff acted in a commercially unreasonable manner by refusing to accept payment under a third-party financing agreement or an all-cash settlement offer of the amount due, respectively.   The plaintiff moves to strike the second and third defenses on the grounds that Connecticut does not recognize a special defense of “acting in a commercially unreasonable manner” and that such a claim does not attack the making, validity or enforcement of the mortgage.   The plaintiff also argues that the defenses are duplicative.

The defendants contend that the defenses sufficiently plead specific facts which show that the plaintiff refused an offer of payment in full.   They further argue that the court has the equitable power to consider special defenses which do not address the validity, making or enforcement of the agreement and that, while similar, the defenses are not duplicative.

Connecticut trial courts have exclusively recognized a special defense of commercially unreasonable behavior when alleged in connection with General Statutes § 42a–9–610.   Said section is part of Connecticut's adoption of the Universal Commercial Code provisions governing secured transactions;  see General Statutes § 42a–9–101 et seq.;   and states in relevant part:  “(b) Every aspect of a disposition of collateral, including the method, manner, time, place and other terms, must be commercially reasonable.”  (Emphasis added.)   Section 42a–9–627(b) provides that “[a] disposition of collateral is made in a commercially reasonable manner if the disposition is made:  (1) In the usual manner on any recognized market;  (2) At the price current in any recognized market at the time of the disposition;  or (3) Otherwise in conformity with reasonable commercial practices among dealers in the type of property that was the subject of the disposition.”   These statutes clearly govern the conduct of mortgagors after a foreclosure has occurred and, therefore, are not applicable to the present action.   Additionally, as the defendants themselves acknowledge, these defenses sound in payment and settlement, as addressed in defenses twenty-four and twenty-five.   The motion to strike the second and third special defenses is granted.

Failure to Sufficiently Allege a Cause of Action

The fourth and fifth special defenses allege that the plaintiff's complaint fails to sufficiently allege a cause of action for foreclosure and recovery of a deficiency judgment, respectively.   The plaintiff asserts that such an argument is properly raised in a motion to strike, not by way of a special defense pleading.  “A bare claim that the plaintiffs' complaint fails to state a valid cause of action cannot be categorized as a defense of discharge, justification, or excuse.   This sort of pleading calls for no response by the plaintiff.   Such a special defense is also superfluous.”   Coss v. Steward, Superior Court, judicial district of New London, Docket No. CV 08 5007541 (May 20, 2009, Martin, J.), aff'd, 126 Conn.App. 30, 10 A.3d 539 (2011).  “A mere expression of the deficiency of the plaintiffs' statements fails to assert facts which show that the plaintiffs have no cause of action.”  Id. “A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.”  (Internal quotation marks omitted.)  Bridgeport Harbour Place I, LLC v. Ganim, supra, 303 Conn. 213.   Both special defenses allege that the plaintiff's complaint fails to sufficiently assert causes of action for their respective claims.   The defenses allege mere conclusions of law.   The plaintiff's motion to strike the fourth and fifth special defenses is granted.

Waiver

The sixth and seventh special defenses allege that the plaintiff waived the right to claim each count of the present action because it agreed to, and then reneged on, a settlement agreement.  “Waiver is the intentional relinquishment or abandonment of a known right or privilege ․ As a general rule, both statutory and constitutional rights and privileges may be waived ․ Waiver is based upon a species of the principal of estoppel and where applicable it will be enforced as the estoppel would be enforced ․ Estoppel has its roots in equity and stems from the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which may perhaps have otherwise existed ․ Waiver does not have to be express, but may consist of acts or conduct from which waiver might be implied ․ In other words, waiver may be inferred from the circumstances if it is reasonable to do so.”   (Internal quotation marks omitted.)  LPP Mortgage, LTD v. Lynch, 122 Conn.App. 686, 697–98, 1 A.3d 157 (2010).  “Waiver, as a special defense, must be specifically pleaded.”  (Internal quotation marks omitted.)  Jo–Ann Stores, Inc. v. Property Operating Co., LLC, 91 Conn.App. 179, 198, 880 A.2d 945 (2005).

Both defenses share almost identical language which states:  “The plaintiff has waived its right ․ by agreeing to, and then reneging on, a settlement agreement with the defendants that precluded [the present action].”   Since “[w]aiver is the intentional relinquishment or abandonment of a known right or privilege”;  LPP Mortgage, LTD v. Lynch, supra, 122 Conn.App. 697;  agreeing to a settlement would sufficiently allege a defense of waiver.   If the plaintiff believed that these defenses were improperly titled, the proper remedy was not a motion to strike, but rather a request to revise the defense.  “[T]he proper way to cure any confusion [regarding the complaint] is to file a [request] to revise, not a motion to strike ․” Rowe v. Godou, supra, 209 Conn. 279.   The motion to strike is denied as to the sixth and seventh special defenses.

Forbearance

The eighth and ninth defenses claim that the plaintiff has waived its right to bring the present action by orally and constructively agreeing to forbear any default proceeding.   The plaintiff argues that these defenses are conclusory, lack factual specificity, are inconsistent with the written modification clause, violate the statute of frauds, and do not address the making, validity or enforcement of the note or mortgage.   As previously noted, “[w]aiver does not have to be express, but may consist of acts or conduct from which waiver might be implied.”  LPP Mortgage, LTD v. Lynch, supra, 122 Conn.App. 698.   This general rule does not, however, absolve the defendants from the requirements of specifically pleading a defense of waiver and complying with the statute of frauds.   On their face, the allegations fail to sufficiently meet these requirements.   The plaintiff's motion to strike the eighth and ninth special defenses is granted.

Constitutional Claims

The tenth through the seventeenth special defenses claim, citing various U.S. and Connecticut constitutional amendments, that the present action deprives the defendants of property without due process of law.   The plaintiff moves to strike all of these defenses asserting that they fail to set forth any factual allegations on which such claims could stand.   The plaintiffs argue, and the defendants concede, that such defenses have never validly been recognized to claims of foreclosure by a Connecticut court.   The plaintiffs also assert that the defendant has failed to sufficiently plead these defenses.  “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.”  Grant v. Bassman, supra, 221 Conn. 472–73.   While the court must “construe the complaint in the manner most favorable to sustaining its legal sufficiency” (internal quotation marks omitted), New London County Mutual Ins. Co. v. Nantes, supra, 303 Conn. 747;  claims that are “merely conclusions of law and [are] absent sufficient alleged facts to support them, are subject to a motion to strike ․ The trial court may not seek beyond the complaint for facts not alleged.”  (Internal quotation marks omitted.)  Cavallo v. Derby Savings Bank, supra, 188 Conn. 285–86.   There are a multitude of ways to violate the protections enshrined in both the state and federal constitution.   The defendants plead only that the present action is an attempt to deprive the defendant of due process and is an unfair application of the laws of Connecticut.   Without further allegations or specificity, the fundamental purpose of a special defense, to put the court and opposing counsel on notice of the issues to be tried, is not being met.  Chapman v. Norfolk & Dedham Mutual Fire Ins. Co., supra, 39 Conn.App. 332.   As special defenses ten through seventeen allege mere conclusions of law, the plaintiff's motion to strike is granted.

Ratification

The eighteenth special defense claims that the defendants did not authorize, approve or ratify the acts or omissions attributed to them in the complaint, which bars the plaintiff from asserting any such claims.   The plaintiff argues that this defense alleges mere conclusions of law without a factual basis.   The defendants object, arguing that there are no further facts available to them which would support the defense.

“[R]atification is defined as the affirmance by a person of a prior act which did not bind him but which was done or professedly done on his account ․ Ratification requires acceptance of the results of the act with an intent to ratify, and with full knowledge of all the material circumstances ․ If the officers or the agents of a corporation assume to act for the corporation without any authority at all, or if they exceed their authority or act irregularly, and the act is one which could have been authorized in the first instance by the stockholders, board of directors or subordinate officers, as the case may be, it may be expressly or impliedly ratified by them, and thus be rendered just as binding ․ In order to ratify the unauthorized act of an agent and make it effectual and obligatory upon the principal, the general rule is that the ratification must be made by the principal with a full and complete knowledge of all the material facts connected with the transaction to which it relates;  and this rule applies, of course, to ratification by a corporation of an unauthorized contract or other act by its officers or agents, whether the ratification is by the stockholders, or by the directors, or by a subordinate officer having authority to ratify.”  (Citations omitted, internal quotation marks omitted.)  Il Giardino, LLC v. Belle Haven Land Co., 254 Conn. 502, 530–31, 757 A.2d 1103 (2000).

The present special defense alleges that the defendants did not ratify any act attributed to them in the complaint.   It does not, however, allege which acts that entails, nor to which count of the complaint it refers to.   As such, the plaintiff's motion to strike the eighteenth special defense is granted.

Accident and Mistake

The twentieth and twenty-first special defenses claim that the plaintiff, by accident and mistake, respectively, failed to fulfill a condition of the mortgage by failing to accept payment, misrepresenting the terms of the mortgage, misrepresenting a financing and forbearance agreement and reneging on said agreement.   The plaintiff argues first that a defense of accident or mistake is only permitted if it alleges that the mortgagor was prevented by accident or mistake from meeting its obligations under the mortgage.   It next states that the defenses fail to state sufficient facts to form a basis of a defense of accident or mistake.

“At common law, the only defenses to an action of [foreclosure] would have been payment, discharge, release or satisfaction ․ or, if there had never been a valid lien ․ Moreover, our courts have permitted several equitable defenses to a foreclosure action.   If the mortgagor is prevented by accident, mistake or fraud, from fulfilling a condition of the mortgage, foreclosure cannot be had.”  New Haven Savings Bank v. LaPlace, 66 Conn.App. 1, 10, 783 A.2d 1174, cert. denied, 258 Conn. 942, 786 A.2d 426 (2001).   The defense of mistake was well-defined in Petterson v. Weinstock, 106 Conn. 436, 443, 138 A. 433 (1927), wherein the court stated:  “While the general statement that mistake is a ground of equitable interference is undoubtedly sound, it does not follow that all mistakes of every character constitute such ground, without reference to the circumstances.   A mistake resulting from wilful or gross negligence would be an exception.”   As mistake and accident are recognized defenses and there is adequate factual basis alleged, the plaintiff's motion to strike is denied.

Payment, Accord and Satisfaction and Discharge

The twenty-fourth, twenty-fifth and twenty-sixth special defenses sound in payment, accord and satisfaction and discharge, and allege that the plaintiff agreed to and then reneged upon a financing agreement which would have satisfied the amount owing under the mortgage.  “The traditional defenses available in a foreclosure action are payment, discharge, release, satisfaction or invalidity of a lien ․” (Internal quotation marks omitted.)   Housing Development Fund v. 130 Main St., Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 08 5007937 (March 26, 2009, Mintz, J.).   In Housing Development Fund v. 130 Main St., the court comprehensively outlined the split of authority among superior court judges on the issue of a defense of payment to a foreclosure action.  Id. The court noted that while a line of cases rejected a defense of refused or misapplied payments finding that such a defense did not address the making, validity or enforcement of the note or mortgage;  see, e.g., Greenpoint Mortgage Corp. v. Ruisi, Superior Court, judicial district of Danbury, Docket No. 33106 (June 1, 1999, Moraghan, J.);   another line of cases held that such a defense directly addressed the enforcement of the note;  see, e.g., Homecomings Financial Network, Inc. v. Starbala, 85 Conn.App. 284, 289, 857 A.2d 366 (2004).  “[I]t is a sufficient defense of payment, for purposes of a motion to strike, that the mortgagee refused to accept properly tendered payment, that is, full and timely payment of the amount due, before declaring default.”  (Internal quotation marks omitted.)  Housing Development Fund v. 130 Main St., supra, Superior Court, Docket No. CV 08 5007937.   The court explained the distinction on defenses which address the enforcement of a note, stating, “[s]imply because the allegations concern events after the execution of the mortgage does not make the claims automatically meritless ․ Indeed, by definition, the ‘enforcement’ of a mortgage may involve conduct occurring after the execution of the mortgage ․ Whether such claims may be raised through a simple denial or a special defense depends on the specific circumstances of the case and the nature of the claims.”  (Internal quotation marks omitted.)  Id. As this defense validly addresses the enforcement of the mortgage, it serves as a valid special defense.   As such, the motion to strike is denied as to the twenty-fourth special defense.

As to the twenty-fifth special defense, sounding in accord and satisfaction, the plaintiff moves to strike because it fails to sufficiently allege a cause of action.   The defendants argue that the defense alleges sufficient facts to support a claim of accord and satisfaction, and that such a claim is a valid defense to a foreclosure action.

“When there is a good faith dispute about the existence of a debt or about the amount that is owed, the common law authorizes the debtor and the creditor to negotiate a contract of accord to settle the outstanding claim ․ An accord is a contract under which an obligee promises to accept a stated performance in satisfaction of the obligor's existing duty ․ Upon acceptance of the offer of accord, the creditor's receipt of the promised payment discharges the underlying debt and bars any further claim relating thereto, if the contract is supported by consideration ․ ‘Accord and satisfaction’ is a method of discharging a claim whereby the parties agree to give and accept something other than that which is due in settlement of the claim and to perform the agreement.”  (Citations omitted;  internal quotation marks omitted.)  B & B Bail Bonds Agency of Connecticut, Inc. v. Bailey, 256 Conn. 209, 212–13, 770 A.2d 960 (2001).  “The accord must be a new agreement based on new consideration.  Crucible Steel Co. v. Premier Mfg. Co., 94 Conn. 652, 656, 110 A. 52 (1920).   The proponent must be able to show that there was a meeting of the minds, and that the offer by the debtor was clearly tendered as full satisfaction of the debt and that the payment was knowingly accepted.”   (Internal quotation marks omitted.)  Munroe v. Emhart Corp., 46 Conn.App. 37, 42–43, 699 A.2d 213, cert. denied, 243 Conn. 926, 701 A.2d 658 (1997).

The defense in the present action alleges that the defendant and the plaintiff agreed to a third-party financing agreement and forbearance agreement that was reneged upon by the plaintiff in accord and satisfaction of the alleged mortgage.   In construing the defendants' pleadings broadly and realistically, the court finds that the defendants have stated sufficient facts to fully disclose the ground for accord and satisfaction.   The plaintiff's motion to strike count twenty-five is denied.

As to the twenty-sixth special defense, which claims a discharge of the debt, the plaintiff moves to strike on the same grounds argued against the previous defense.  General Statutes § 42a–3–604(a) governs the discharge of negotiable instruments and states:  “A person entitled to enforce an instrument, with or without consideration, may discharge the obligation of a party to pay the instrument (i) by an intentional voluntary act, such as surrender of the instrument to the party, destruction, mutilation, or cancellation of the instrument, cancellation or striking out of the party's signature, or the addition of words to the instrument indicating discharge, or (ii) by agreeing not to sue or otherwise renouncing rights against the party by a signed writing.”   While the present defense alleges that the plaintiff agreed to forbear its rights to foreclose on the mortgage, it does not allege that the plaintiff memorialized said agreement in a signed writing.   The defendants argue that the court can infer the existence of a writing based on the allegations of the defense.   They cite no authority, however, for this argument.   While a written modification is sufficient to modify the mortgage, a written instrument is not necessarily implied by a claim of modification.   Section 42a–3–604(a), supra.  “An agreement to forbear from foreclosing a mortgage involves an interest in real property;  therefore, such an agreement is within the purview of the Statute of Frauds and must be in writing.”   (Internal quotation marks omitted.)   First Union National Bank v. Bogardus, Superior Court, judicial district of Ansonia/Milford at Milford, Docket No. 071447 (December 10, 2001, Curran, J.).   Furthermore, a special defense based on a forbearance agreement is subject to a motion to strike when there is no allegation that the agreement modified the original mortgage.   Point Center Financial, Inc. v. Phoenix Development Group, Superior Court, judicial district of Litchfield, Docket No. 07 6000460 (February 5, 2008, Martin, J.).   Absent an allegation that a discharge was sufficiently memorialized in writing or that it altered the original mortgage, the twenty-sixth special defense is legally insufficient to support a claim of discharge and, accordingly, the court grants the motion to strike this defense.

Estoppel

The twenty-seventh and twenty-eighth special defenses claim that the plaintiff is estopped from bringing both counts of the complaint, respectively, by “its own deeds, acts and representations.”   The plaintiff moves to strike these defenses because they fail to set forth the required factual basis;  because they fail to address the making, validity or enforcement of the note or mortgage;  because the allegations are conclusory;  and because they contain no contentions of misleading conduct which induced the defendants to act to their detriment.   The defendants object, arguing that the defenses sufficiently allege claims of equitable estoppel.

“Equitable estoppel is a doctrine that operates in many contexts to bar a party from asserting a right that it otherwise would have but for its own conduct ․ In its general application, we have recognized that there are two essential elements to an estoppel—the party must do or say something that is intended or calculated to induce another to believe in the existence of certain facts and to act upon that belief, and the other party, influenced thereby, must actually change his position or do some act to his injury which he otherwise would not have done.”  (Citations omitted;  internal quotation marks omitted.)  Glazer v. Dress Barn, Inc., 274 Conn. 33, 60, 873 A.2d 929 (2005).   The defenses allege that the plaintiff is estopped from proceeding in the present action by his own deeds, acts and representations because it agreed to the third-party financing and forbearance agreement that eliminated any alleged default under the mortgage.   The defenses do not include any allegations that the plaintiff entered into the agreement with an intent to induce the defendants to act nor that the defendants took any action to their detriment in reliance on the plaintiff's agreement to forbear its rights to foreclose.   Therefore, the defenses fail to sufficiently allege claims of estoppel, and the plaintiff's motion to strike the twenty-seventh and twenty-eighth special defenses is granted.

Consent

The twenty-ninth special defense alleges that the plaintiff consented to the defendants' default by agreeing to the financing and forbearing agreement.   The plaintiff moves to strike this defense, arguing that this defense combines the previous defenses of waiver and breach of agreement, both of which have been argued already in the sixth, eighth and ninth defenses.   The defendants argue that the plaintiff misconstrues this defense, and that a defense of consent to default is a valid defense to a contract action.   The defendants cite Torgerson v. Kenny, Superior Court, judicial district of New Haven, Docket No. CV 02 0464344 (September 14, 2004, Devlin, J.), for the position that consent is a valid special defense.   Torgerson is, however, inapplicable to the present action.   Furthermore, research reveals no cases where a court has permitted a special defense of “consent” in a foreclosure action.   As the defendant has failed to sufficiently plead a defense, the plaintiff's motion to strike the twenty-ninth special defense is granted.

General Inequitable Conduct

The thirtieth special defense alleges that the plaintiff should be barred from asserting its claims because of its “general inequitable conduct.”   It further alleges that the parties had an agreement to obtain third-party financing after which the plaintiff “allow[ed] all relevant documents to be prepared and all parties involved to act in reliance on the agreement,” and then reneged on the agreement, causing the defendants damage.   The plaintiff argues that general inequitable conduct is not a recognized special defense;  that such a defense does not attack the making, validity or enforcement of the note or mortgage;  and that the alleged agreement is subject to the statute of frauds.   The defendants argue that the defense alleges sufficient facts and that the court can infer that the alleged agreement is in writing.

“Where the plaintiff's conduct is inequitable, a court may withhold foreclosure on equitable considerations and principles.”  Fidelity Bank v. Krenisky, supra, 72 Conn.App. 705.   While inequitable conduct on behalf of a plaintiff may appropriately be asserted, such conduct must be alleged as an element of a recognized defense.   See Comm 2006–C–8 Asylum v. Northland, Superior Court, judicial district of Hartford, Docket No. CV 10 6005957 (October 5, 2011, Sheldon, J.) (defendant alleges inequitable conduct in support of defense of unclean hands);  Patriot National Bank v. Riversong Designs, LLC, Superior Court, judicial district of Fairfield, Docket No. CV 10 6012427 (April 1, 2011, Hartmere, J.) (plaintiff should be estopped from asserting claims due to inequitable conduct).  “Inequitable conduct,” however, is not recognized as an independent defense.   In this instance, the defense alleges that the defendants acted in reliance on the plaintiff's agreement to their detriment.   To the extent that the pleading can be construed to assert a defense of equitable estoppel, it falls short of alleging that the plaintiff agreed to the financing and forbearance agreement with the intent to induce reliance.   Thus, as general inequitable conduct is not a recognized defense and because the pleading fails to sufficiently allege a defense of equitable estoppel, the plaintiff's motion to strike the thirtieth special defense is granted.

Inadequate Notice

The thirty-first special defense claims that the plaintiff is precluded from asserting the present claims because it failed to provide the defendants with adequate notice of any alleged default, payment, modification or acceleration of the mortgage or forbearance agreement.   The plaintiff argues that the defense is vague and conclusory;  fails to allege in what manner the notice was inappropriate;  does not attack the making, validity or enforcement of the mortgage;  and is a legally insufficient special defense, citing Coolidge CT Ltd. v. 1200 Main St. Ass'n, Superior Court, judicial district of Fairfield, Docket No. CV 89 0265384 (February 17, 1995, Hauser, J.).   While the defendants argue that the defense alleges sufficient facts to support such a claim, they admit that there is a split of authority on whether lack of notice is a recognized special defense.   See Eastern Savings Bank FSB v. Mara, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 05 4006305 (June 5, 2006, Dooley, J.) (defenses to foreclosure are recognized when they attack the note itself rather than some behavior of the mortgagor).

General Statutes § 8–265ee(a) provides:  “On and after July 1, 2008, a mortgagee who desires to foreclose upon a mortgage ․ shall give notice to the mortgagor by registered, or certified mail, postage prepaid at the address of the property which is secured by the mortgage.   No such mortgagee may commence a foreclosure of a mortgage prior to mailing such notice.   Such notice shall advise the mortgagor of his delinquency or other default under the mortgage and shall state that the mortgagor has sixty days from the date of such notice in which to (1) have a face-to-face meeting, telephone or other conference acceptable to the authority with the mortgagee or a face-to-face meeting with a consumer credit counseling agency to attempt to resolve the delinquency or default by restructuring the loan payment schedule or otherwise, and (2) contact the authority, at an address and phone number contained in the notice, to obtain information and apply for emergency mortgage assistance payments if the mortgagor and mortgagee are unable to resolve the delinquency or default.”   Exact compliance with the notice requirement is not necessary, provided “the notice of default substantially complied with the relevant notice requirements.”

The present complaint alleges in paragraph five that “[o]n or about August 31, 2010, subsequent to the maturity date, the plaintiff caused notice to be given to the defendant.”   Thus, the allegations of the defense which state that the plaintiff did not provide notice of the default do not comply with the allegations of the complaint.   Furthermore, the defendants plead only that “[t]he plaintiff is barred from asserting the claims in the herein complaint as a result of the plaintiff's failure to provide adequate notice to the defendants.”   See Wells Fargo Bank, N.A. v. Gary, Superior Court, judicial district of New Haven, Docket No. CV 10 6016192 (September 26, 2011, Zemetis, J.) (defense which only alleged “the plaintiff failed to [send] written notice in accordance with General Statutes § 8–265ee,” was “a bald assertion of a legal conclusion”).   See also U.S. National Bank Assn. v. Lewis, Superior Court, judicial district of New London, Docket No. CV 09 5011097 (November 12, 2009, Martin, J.) (granting motion to strike a defense of inadequate notice where complaint alleged that notice was sent to the defendants and defense therefore failed to allege facts consistent with the complaint).   The court grants the motion to strike the thirty-first special defense, sounding in inadequate notice, for failure to sufficiently state a claim and for alleging facts inconsistent with the allegations of the complaint.

Conclusion

For the foregoing reasons, the court grants the plaintiff's motion to strike the second, third, fourth, fifth, eighth, ninth, tenth through seventeenth, eighteenth, twenty-sixth, twenty-seventh, twenty-eighth, thirtieth and thirty-first special defenses.   The court denies the plaintiff's motion to strike the sixth, seventh, twentieth, twenty-first, twenty-fourth and twenty-fifth special defenses.

Pavia, J.

Pavia, Robin, J.