F & B Realty Corporation v. Kevin Finucane (2013)

MEMORANDUM OF DECISION RE MOTION FOR DEFAULT FOR FAILURE TO DISCLOSE DEFENSE (# 103)

FACTS

The plaintiff commenced this action by writ, summons, and complaint on August 25, 2013.   The matter was returned to court on September 3, 2013.   In the present case, the one-count complaint alleges the following.   The defendant executed a promissory note promising to pay to the order of the plaintiff the sum of $30,000 dollars together with interest at the rate of 12% interest per annum.   The complaint further alleges that “in order to induce the Plaintiff to extend credit to the Defendant, Kevin Finucane executed a Security Agreement (the “Agreement”) dated February 9, 2012.   The defendant granted a security interest in collateral described as a 1992 Vessile, Mako Model ․ The Defendant defaulted on his/her payments under said note and Agreement and the sum of $30,000 dollars together with interest and all costs, including reasonable attorneys fees remain due and owing.   The plaintiff is currently the holder of the note.   Although demand for payment has been made, the [d]efendant ․ has not made same.”   Pl. Compl., 9/3/2013.

On October 22, 2013, pursuant to Practice Book § 13–19, the plaintiff filed a demand for disclosure of defense.   On November 18, 2013, in accordance with Practice Book § 13–19, the plaintiff filed a motion for default for failure to disclose defense as the defendant failed to disclose a defense within ten days of the filing of plaintiff's demand for defense.   The self-represented defendant filed an objection to the motion for default on grounds that he is not represented by an attorney and therefore § 13–19 does not apply to this case.   This matter was scheduled on the court's December 2, 2013 nonarguable short calendar.

DISCUSSION

Practice Book § 13–19 states in relevant part:  “In any action ․ upon any written contract, in which there is an appearance by an attorney for any defendant, the plaintiff may at any time file and serve in accordance with Sections 10–12 through 10–17 a written demand that such attorney present to the court, to become a part of the file in such case, a writing signed by the attorney stating whether he or she has reason to believe and does believe that there exists a bona fide defense to the plaintiff's action and whether such defense will be made, together with a general statement of the nature or substance of such defense.   If the defendant fails to disclose a defense within ten days of the filing of such demand in ․ any action upon any written contract, the plaintiff may file a written motion that a default be entered against the defendant by reason of the failure of the defendant to disclose a defense.   If no disclosure of defense has been filed, the judicial authority may order judgment upon default to be entered for the plaintiff at the time the motion is heard or thereafter, provided that in either event a separate motion for such judgment has been filed.”

This is clearly a breach of contract action brought against the defendant.   A promissory note between the original parties to the note is interpreted under the fundamental principles of contract law.  Appliances, Inc. v. Yost, 181 Conn. 207, 210–11, 435 A.2d 1 (1980).   The plain language of § 13–19 clearly applies to “any action ․ upon any written contract, in which there is an appearance by an attorney for any defendant ․” Here, the defendant filed an appearance in this case as a self-represented party.   He is not an attorney.   Accordingly, Practice Book § 13–19 does not apply in this case as no appearance by an attorney has been filed for the defendant.   The motion for default for failure to disclose defense is therefore denied.

Wilson, J.

Wilson, Robin L., J.