Putnam Bank v. LLC (2013)

MEMORANDUM OF DECISION

The plaintiff, Putnam Bank, has moved to strike the answer and special defenses filed by a subsequent encumbrancer in this action, the defendant Horizon Asset Management, LLC.

In its complaint, the plaintiff alleges that the defendant, Delmac, LLC, executed a promissory note in favor of that plaintiff and that the promissory note was secured by a mortgage on property owned by the defendant, Delmac, LLC, at 140 Preston Road, Griswold, Connecticut.

The plaintiff alleges that Delmac, LLC is in default under the terms of the note, and that the plaintiff has accelerated the balance due.   The plaintiff further indicates that the defendant, Horizon Asset Management, LLC, claims an interest in the property subject to this foreclosure action by virtue of two mortgages on the property.   The complaint alleges that Horizon's interest is subsequent in right to the plaintiff's mortgage.

The defendant, Horizon, filed an answer and special defenses to the plaintiff's complaint.   Horizon leaves the plaintiff to its proof with respect to the loan made to Delmac.   Horizon admits that it has an interest in the property subject to this foreclosure suit, and that those interests are subsequent in right to the plaintiff's mortgage.   By way of special defense, Horizon asserts “[t]he claims to be asserted by the plaintiff in regard to its debt are unconscionable or unenforceable and are against public policy and are otherwise barred in whole or in part.”

In this motion to strike, the plaintiff challenges the legal sufficiency of this defense because the defendant has failed to allege that it owed a duty to Horizon.   Specifically, it claims that Horizon has not pled that there was an express agreement between the plaintiff and Horizon or that the plaintiff has acted in bad faith.   The plaintiff further argues that as such the defendant, Horizon's, special defense does not fall within the penumbra of allowable special defenses in a foreclosure action.

The defendant, Horizon, objects to the motion to strike on procedural and substantive grounds.   First it claims that the plaintiff's motion to strike is fatally defective because it fails to comply with Practice Book § 10–41.   Without waiving its rights to this procedural objection, the defendants also object to the motion to strike because they claim that the motion should be denied on its merits.   Essentially, they claim that they have standing to raise as a special defense the equitable concerns articulated in their special defense.

The court is reluctantly in agreement with the defendant that the motion to strike does not comply with Practice Book § 10–39 et seq.  Section 10–41 of the Practice Book had been interpreted by our Appellate Courts to require that the motion to strike distinctly specify the reason or reasons for the claimed legal insufficiency.   Here the motion itself merely references the memorandum filed in support of the motion and does not incorporate that memorandum by reference nor does it specifically articulate the claims that are made in that memorandum.   This motion to strike is denied without prejudice to refiling the same in proper procedural form.

Cosgrove, J.

Cosgrove, Emmet L., J.