Connecticut Housing Finance Authority v. Ralph E. Phillips aka Ralph E. Phillips, Jr. aka Edward Phillips et al. (2014)

MEMORANDUM OF DECISION RE MOTION TO STRIKE (# 109)

In this foreclosure action, the plaintiff has moved to strike the two special defenses filed by the defendant in this case.

“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.)  Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006).   “The court must construe the facts in the complaint most favorably to the plaintiff.”  (Internal quotation marks omitted.)  Faulkner v. United Technologies Corp, 240 Conn. 576, 580, 693 A.2d 293 (1997).  “[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.”  (Internal quotation marks omitted.)  Batte–Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007).   By contrast, “[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.)  Fort Trumbull Conservancy, LLP v. Alves, supra, 498.

The defendants' first special defense alleges that the plaintiff has breached a duty of good faith and fair dealing thereby failed to mitigate damages.   The conduct complained of in this special defense relates to phone conversations initiated by the defendant or letters sent by the defendant to the plaintiff or the servicers which he offered to tender a deed in lieu of foreclosure.   The defendant asserts that because of the failure to accept the proffered deed in lieu of foreclosure, was a failure to deal fairly and in good faith with the defendant.   The court finds that this defense clearly is not related to the making or validity of the note.   It does not directly relate to actions taken by the plaintiff to enforce the note, but rather describes events that occur after an event of default occurred.   As plead, the special defense does not assert a valid defense to this foreclosure action.

The second special defense incorporates the allegations of the first special defense and asserts that the defendant is entitled to a setoff or credit for any and all sums of money or damages could have been avoided if a deed in lieu of foreclosure had been accepted.   This defense, as plead, does not constitute a legally sufficient defense to this foreclosure action.   The defendant always has the right or opportunity to challenge the calculation of the debt submitted by the plaintiff at the time a judgment is requested.

In summary, the plaintiff's motion to strike the first and second special defenses as plead by the defendant is granted.

Cosgrove, J.

Cosgrove, Emmet L., J.