LLC v. FBAA LLC (2016)

MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION TO STRIKE (No. 134)

The plaintiff, Country Kitchen Enterprises, LLC, has filed a motion to strike the special defenses of defendants, FBAA Realty, LLC and Shahana Asad, executrix of the estate of Mohammad Asad, asserting that they are legally insufficient.  The defendants ¹ oppose this motion.

PROCEDURAL HISTORY

On October 10, 2012, the plaintiff commenced this foreclosure action via a four-count complaint alleging the following facts.  On August 3, 2007, the defendant FBAA Realty, LLC (FBAA), Mohammad Asad and Deloris D. Pino, the principal members of FBAA, became indebted to the plaintiff in the sum of $115,000, as evidenced by a promissory note.  To secure the subject note, the defendant FBAA mortgaged a parcel of land located in East Lyme, Connecticut.  On April 23, 2012, the plaintiff sent written demand of payment of the note upon the defendant FBAA, Mohammad Asad and Pino. Counts one through three of the complaint sound in default on the subject note as to Mohammad Asad, Pino, and the defendant FBAA, respectively.  In count four, the plaintiff alleged a right of action to foreclose against the defendant FBAA, as the record owner in possession of the subject premises and declared the balance of the note, plus interest, fees, and costs.²

On April 24, 2015, the defendants filed their amended answer and special defenses.  Therein, the defendants allege three special defenses:  failure of consideration, equitable estoppel, and unclean hands.  Pertinent to all three special defenses,³ the defendants allege the following facts.  On August 3, 2007, Mohammad Asad (among others) agreed, via an Asset Purchase Agreement (the agreement), to purchase from the plaintiff assets and inventory necessary to the operation of a restaurant business.  Pursuant to paragraph 5C of the agreement, the plaintiff represented that it had good and marketable title to the subject assets and inventory referenced in the agreement, free and clear of any third-party claims;  however, after the agreement was executed, the landlord claimed an interest to, and took possession of, the assets identified in the agreement.  The purchase price for the assets and inventory was $160,000.  The plaintiff received $45,000 at closing, along with the subject note for $115,000, which was executed by Mohammad Asad in his individual capacity and as a member of the defendant FBAA, and was secured a mortgage on the premises subject to this action.

On October 8, 2015, the plaintiff filed its motion to strike the defendants' special defenses on the grounds that they are invalid and do not comport with Practice Book § 10–50, and a memorandum in support.  On October 15, 2015, the defendants filed a memorandum in opposition to the plaintiff's motion.  The court heard argument on November 30, 2015.

DISCUSSION

“The purpose of a motion to strike is to contest ․ the legal sufficiency of the allegations ․ 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).  “A motion to strike shall be used whenever any party wishes to contest ․ the legal sufficiency of any answer to any complaint, ․ including any special defense contained therein.”  Practice Book § 10–39(a)(5).  “It is fundamental that in determining the sufficiency of a [pleading] challenged by a [party's] motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted ․ Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically.”  (Internal quotation marks omitted.)  Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006).  The challenged pleading must be construed “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).  “[I]f facts provable in the [pleading] 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).

In its memorandum in support of its motion to strike, the plaintiff argues that defendants' special defenses should be stricken because they do not address the making, validity, or enforcement of the note, and they fail to comport with the requirements of Practice Book § 10–50.  In response, the defendants argue that the plaintiff's motion to strike should be denied because the motion was untimely, being filed more than thirty days after the defendants filed their special defenses in violation of Practice Book § 10–8, and impermissible, being filed after the defendants filed a default against the plaintiff in violation of Practice Book § 17–32(b).  Alternatively, the defendants argue that the motion should be denied because their special defenses are legally sufficient because they are recognized defenses to a foreclosure action and relate to the making, validity, and enforcement of the subject obligations.

First, the court turns to the defendants' procedural arguments.  Practice Book § 10–8 provides a time period of thirty days to plead in response to a preceding pleading.⁴  Practice Book § 17–32(b) provides that if a defendant who is in default for failure to plead files an answer before a judgment after default has been rendered by the judicial authority, the default shall automatically be set aside by operation of law.⁵  The defendants argue that the court should deny the motion to strike on procedural grounds because on October 1, 2015,⁶ they filed a motion for default against the plaintiff for failure to plead in response to the defendants' special defenses, and because the plaintiff filed its motion to strike fifty-one days after the defendants' answer and special defenses became effective on August 18, 2015.  The defendants' motion for default, however, was denied on November 18, 2015—the order noted that the motion to strike was filed—and the plaintiff has not been defaulted in this matter at any point.  Further, while the plaintiff filed its motion to strike on October 8, 2015, twenty-one days after Practice Book § 10–8's thirty-day time limit to file a motion subsequent to a preceding pleading, “[i]t is well established that the court has discretion as to whether it will consider the merits of an untimely motion.  Although a motion to strike may appear untimely on its face, the court has discretion to permit a late pleading where the parties have both submitted arguments on the merits.”  (Internal quotation marks omitted.)  Esdaile v. Hill Health Corp., Superior Court, judicial district of New Haven at Meriden, Docket No. CV–98–0262401–S (November 6, 2001, Booth, J.).  Therefore, the court, in exercising its discretion, will consider the parties' arguments on the merits.

“Foreclosure is peculiarly an equitable action, and the court may entertain such questions as are necessary to be determined in order that complete justice may be done.”  Hartford Federal Savings & Loan Assn. v. Lenczyk, 153 Conn. 457, 463, 217 A.2d 694 (1966).  “Where the plaintiff's conduct is inequitable, a court may withhold foreclosure on equitable considerations and principles.”  (Internal quotation marks omitted.)  Fidelity Bank v. Krenisky, 72 Conn.App. 700, 705, 807 A.2d 968, cert. denied, 262 Conn. 915, 811 A.2d 1291 (2002).  “Historically, defenses to a foreclosure action have been limited to payment, discharge, release or satisfaction ․ or, if there had never been a valid lien ․ 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 ․ ⁷ 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 ․ [O]ur courts have permitted several equitable defenses to a foreclosure action.”  (Footnote added, internal quotation marks omitted.)  Id., 705–06.

The appellate courts have held that conduct the precedes, or occurs subsequent to, the making of a note can be properly related to its making, validity, or enforcement.  See Thompson v. Orcutt, 257 Conn. 301, 311–14, 777 A.2d 670 (2001) (determining that clean hands doctrine was valid special defense even though improper conduct occurred subsequent to original loan transaction);  Morgera v. Chiappardi, 74 Conn.App. 442, 450, 813 A.2d 89 (2003) (agreeing with defendant that “plaintiff's fraudulent representations ․ caused [the defendant] to make the note and mortgage ․ [and] that the misrepresentation, conveyances and mortgage are appropriately related ․” [internal quotation marks omitted] ).  Further, while “[p]ractically speaking ․ neither [the Appellate Court] nor our Supreme Court has ever expressed a finite list of equitable defenses available in a foreclosure action”;  TD Bank N.A. v. M.J. Holdings, LLC, 143 Conn.App. 322, 328, 71 A.3d 541 (2013);  “[the] practice in this [s]tate has been to give a liberal interpretation to equitable rules in working out, as far as possible, a just result.”  Petterson v. Weinstock, 106 Conn. 436, 446, 138 A. 433 (1927).

A. Failure/Lack of Consideration

The defendants' first special defense alleges that the plaintiff fraudulently misrepresented that it had the right, title, and interest to sell the assets and inventory referred to in the agreement and in exchange for which the defendant FBAA and Mohammad Asad executed the subject note and mortgage.  The plaintiff argues that defendants' first special defense should be stricken for several reasons.  First, it does not address the making, validity, or enforcement of the note.  Second, while the plaintiff conceded during oral argument that failure of consideration has been recognized as a special defense, it argues that the defendants' first special defense instead sounds in breach of contract, which is not a recognized special defense to an unsatisfied promissory note.  Further, it pleads conclusory statements regarding misrepresentation that fail to demonstrate that the plaintiff has no cause of action, as required by Practice Book § 10–50, and it fails to refer to the cause of action which it intends to answer, as required by Practice Book § 10–51.  Finally, the plaintiff argues that under established Connecticut law, a promissory note is treated independently from an underlying contract.  “[T]he trial courts have permitted several ․ equitable defenses to be raised in foreclosure actions, including ․ lack of consideration.”  (Internal quotation marks omitted.)  ALI, Inc. v. Veronneau, Superior Court, judicial district of Waterbury, Docket No. 126431–S (October 11, 1996, Kulawiz, J.) (17 Conn. L. Rptr. 677).

Here, the defendants argue that their first special defense alleged a lack of consideration, not a breach of contract, and relates to the making, validity, or enforcement of the note or mortgage because the promise to pay, contained in the note and mortgage subject to the present foreclosure action, was exchanged for good and marketable title to the assets and inventory, which the plaintiff fraudulently represented it possessed in the agreement.  The court agrees with the defendants.  The court will proceed to examine the legal sufficiency of the defendants' first special defense.

In its first special defense, the defendants alleged that the plaintiff represented in the agreement that it had good and marketable title to the assets and inventory referenced therein, free and clear of any third-party claims.  While this special defense alleged that the plaintiff breached the agreement by fraudulently misrepresenting that it had the right, title, and interest to sell the subject assets, it, in paragraph 6, explicitly alleged a failure of consideration with regard to the note and mortgage subject to the present foreclosure action.  The defendants do not allege that they did not default on the subject note or that the note was not secured by the subject mortgage;  rather, they alleged that, pursuant to the agreement, Mohammad Asad, as a member of the defendant FBAA, agreed to purchase from the plaintiff the subject assets in order to continue the operation of a restaurant.  Pursuant to the agreement, the plaintiff received $45,000 in cash and the subject note for $115,000, executed by Mohammad Asad individually and as a member of FBAA and secured by the subject mortgage, in exchange for the plaintiff's title to the assets and inventory necessary to the restaurant's operation.  Following the purported bargained-for-exchange, the landlord claimed an interest in, and took possession of, the subject assets.

Finally, while the plaintiff argues that under established Connecticut law, the promissory note and underlying contract are treated independently of each other, the cases ⁸ cited by the plaintiff to support this position deal with the independence of an agreement for a letter of credit from an underlying commercial agreement prompting the procurement of the letter of credit, as opposed to a lack or failure of consideration in an agreement paid for in part by a note secured by a mortgage, and are therefore distinguishable from the present case.  In viewing these allegations in the light most favorable to the defendants, the court concludes that the defendants have sufficiently alleged facts demonstrating a failure of consideration, which is recognized as a valid special defense to a foreclosure action.  For these reasons, the plaintiff's motion to strike the defendants' first special defense is denied.

B. Equitable Estoppel

With regard to the defendants' second special defense alleging equitable estoppel, the plaintiff argues that it should likewise be stricken because it fails to address the making, execution, and validity of the note and fails to state the elements of equitable estoppel, therefore failing to demonstrate how the principles of equitable estoppel leave the plaintiff without a cause of action.

“[T]raditional mortgage foreclosure standards ․ permit the assertion of certain special defenses, including that of equitable estoppel ․ The doctrine of equitable estoppel is well established.  [W]here one, by his words or actions, intentionally causes another to believe in the existence of a certain state of things, and thereby induces him to act on that belief, so as injuriously to affect his previous position, he is [precluded] from averring a different state of things as existing at the time ․ Our Supreme Court ․ stated, in the context of an equitable estoppel claim, that [t]here are two essential elements to an estoppel:  the party must do or say something which 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 something to his injury which he otherwise would not have done.  Estoppel rests on the misleading conduct of one party to the prejudice of the other ․ Broadly speaking, the essential elements of an equitable estoppel ․ as related to the party to be estopped, are:  (1) conduct which amounts to a false representation or concealment of material facts, or, at least, which is calculated to convey the impression that the facts are otherwise than, and inconsistent with, those which the party subsequently attempts to assert;  (2) the intention, or at least the expectation, that such conduct shall be acted upon by, or influence, the other party or other persons;  and (3) knowledge, actual or constructive, of the real facts.”  (Citation omitted;  footnote omitted;  internal quotations marks omitted.)  TD Bank, N.A. v. M.J. Holdings, LLC, supra, 143 Conn.App. 337–38.  “As a general rule ․ a representation or assurance, in order to furnish the basis of an estoppel, must relate to some present or past fact or state of things, as distinguished from mere promises or statements as to the future.”  28 Am.Jur.2d 479, Estoppel and Waiver § 50 (2000).

Here, the defendants argue that their second special defense of equitable estoppel relates to the making, validity, or enforcement of the note and mortgage because it alleges that the plaintiff's misrepresentation induced the execution of the note and mortgage.  Again, the court agrees with the defendants.  In viewing the facts in the light most favorable to the defendants, the plaintiff's alleged representation that it had good and marketable title to the subject assets and inventory induced the defendants to enter into the agreement, paid for in part by the subject note, which was secured by the mortgage subject to this action.  Therefore, the defendants' first special defense properly relates to the making, validity, or enforcement of the note.  In this light, the court will proceed to examine the legal sufficiency of the defendants' second special defense.

The defendants have alleged sufficient facts demonstrating that the plaintiff, by its representation regarding its title to the subject assets, intended or calculated to induce the defendants to believe such representation and enter into the agreement.  The defendants do not allege that they are not in default.  Rather, they alleged that the plaintiff represented that it had good and marketable title to the subject assets being purchased in part by the subject note.  A necessary implication of such allegation is that the plaintiff made the representation with the intention of inducing Mohammad Asad to enter into the agreement.  Further, the defendants alleged that after the plaintiff received the subject note and the defendants purportedly took title to the subject assets and inventory, the landlord claimed an interest in, and took possession of, the subject assets.  These facts demonstrate the defendants' injury as a result of their reliance on the plaintiff's representation and that the defendants believed they had received title to the subject assets via the agreement.  Further, in viewing these facts in the light most favorable to the defendants, they imply that the plaintiff knew that it did not have good and marketable title, free and clear of third-party claims.  For these reasons, the court concludes that the defendants have sufficiently alleged the elements of equitable estoppel and therefore, the plaintiff's motion to strike the defendants' second special defense is denied.

C. Unclean Hands

With regard to the defendants' third special defense alleging unclean hands, the plaintiff argues that it should likewise be stricken because it fails to address the making, execution, and validity of the note and fails to state the elements of the unclean hands doctrine, therefore failing to demonstrate how the doctrine's principles leave the plaintiff without a cause of action.

“It is a fundamental principle of equity jurisprudence that for a complainant to show that he is entitled to the benefit of equity he must establish that he comes into court with clean hands ․ The clean hands doctrine is applied not for the protection of the parties but for the protection of the court ․ It is applied not by way of punishment but on considerations that make for the advancement of right and justice ․ The doctrine of unclean hands expresses the principle that where a plaintiff seeks equitable relief, he must show that his conduct has been fair, equitable and honest as to the particular controversy in issue ․ Unless the plaintiff's conduct is of such a character as to be condemned and pronounced wrongful by honest and fair-minded people, the doctrine of unclean hands does not apply ․

“Because the doctrine of unclean hands exists to safeguard the integrity of the court ․ [w]here a plaintiff's claim grows out of or depends upon or is inseparably connected with his own prior fraud, a court of equity will, in general, deny him any relief, and will leave him to whatever remedies and defenses at law he may have ․ The doctrine generally applies [only] to the particular transaction under consideration, for the court will not go outside the case for the purpose of examining the conduct of the complainant in other matters or questioning his general character for fair dealing.  The wrong must ․ be in regard to the matter in litigation ․ Though an obligation be indirectly connected with an illegal transaction, it will not thereby be barred from enforcement, if the plaintiff does not require the aid of the illegal transaction to make out his case.”  (Citations omitted;  internal quotation marks omitted.)  Thompson v. Orcutt, supra, 257 Conn. 310–11.  “In other words, the unclean hands defense is proper if the plaintiff would not be able to bring the action but for its improper conduct.”  LaSalle Bank National Assn. v. Bardales, Superior Court, judicial district of New London, Docket No. CV08–5007137–S (April 14, 2009, Devine, J.).

Here, the defendants argue that their third special defense of unclean hands relates to the making, validity, or enforcement of the note and mortgage because the note and mortgage originated as part of the transaction in which the plaintiff's misrepresentation was made.  Again, the court agrees with the defendants.  In viewing the facts in the light most favorable to the defendants, the plaintiff's alleged representation that it had good and marketable title to the subject assets and inventory induced the defendants to enter into the agreement, paid for in part by the subject note, which was secured by the mortgage subject to this action.  Therefore, the defendants' first special defense properly relates to the making, validity, or enforcement of the note.  In this light, the court will proceed to examine the legal sufficiency of the defendants' third special defense.

In the present case, the defendants have alleged facts sufficient to demonstrate that but for the plaintiff's representation regarding its good and marketable title to the subject assets, it would not able to bring this foreclosure action.  The defendants do not allege that they did not default on the subject note, but rather, that the plaintiff represented that it had good and marketable title to the subject assets, which were necessary to the operation of the restaurant, and that the landlord claimed an interest in, and took possession of, the subject assets.  Viewing these allegations in the light most favorable to the defendants and making all necessary implications in their favor, the court concludes that the defendants would not have defaulted on the subject note but for the plaintiff's representation about its title to the subject assets because without such representation, Mohammad Asad, as member of the defendant FBAA, would not have entered into the agreement partially paid for by the subject note and secured by the subject mortgage.  Furthermore, if the plaintiff's representation had been accurate, the landlord would not have claimed interest and taken possession of the subject assets.  Finally, if the defendants had not defaulted on the subject note following the landlord's possession of the assets necessary to the restaurant's operation, the plaintiff would not have been able to bring this foreclosure action.  For these reasons, the court concludes that the defendants have sufficiently alleged the elements of unclean hands and therefore, the plaintiff's motion to strike the defendants' third special defense is denied.

CONCLUSION

For the foregoing reasons, the plaintiff's motion to strike is denied in its entirety.

Cosgrove, J.

FOOTNOTES

FN1. The caption for this matter lists seven defendants, several of which are nonappearing.  Deloris D. Pino, Commercial Loan Consultants, LLC, and Mutual Oil Co. are listed as nonappearing defendants.  On January 20, 2015, this court granted the plaintiff's motion to substitute Shahana Asad, executrix or administratrix and widow, heirs, and/or creditors of the estate of Mohammad Asad, following his death, and Mohammad Asad was removed as a defendant.  The two appearing defendants in this matter are FBAA Realty, LLC and Shahana Asad, executrix of the estate of Mohammad Asad, who will be hereinafter collectively referred to as the defendants, unless referred to individually.  Nonappearing or removed defendants will be referred to individually..  FN1. The caption for this matter lists seven defendants, several of which are nonappearing.  Deloris D. Pino, Commercial Loan Consultants, LLC, and Mutual Oil Co. are listed as nonappearing defendants.  On January 20, 2015, this court granted the plaintiff's motion to substitute Shahana Asad, executrix or administratrix and widow, heirs, and/or creditors of the estate of Mohammad Asad, following his death, and Mohammad Asad was removed as a defendant.  The two appearing defendants in this matter are FBAA Realty, LLC and Shahana Asad, executrix of the estate of Mohammad Asad, who will be hereinafter collectively referred to as the defendants, unless referred to individually.  Nonappearing or removed defendants will be referred to individually.

FN2. The plaintiff also alleged that Commercial Loan Consultants, LLC has a prior right of interest and Mutual Oil Co. has a subsequent and inferior right of interest to that of the plaintiff on the subject premises..  FN2. The plaintiff also alleged that Commercial Loan Consultants, LLC has a prior right of interest and Mutual Oil Co. has a subsequent and inferior right of interest to that of the plaintiff on the subject premises.

FN3. Both the second and third special defenses incorporate paragraphs 1 though 5 of the first special defense..  FN3. Both the second and third special defenses incorporate paragraphs 1 though 5 of the first special defense.

FN4. Practice Book § 10–8 provides, in pertinent part, the following:  “Commencing on the return day of the writ, summons and complaint in civil actions, pleadings, including motions and requests addressed to the pleadings, shall advance within thirty days from the return day, and any subsequent pleadings, motions and requests shall advance at least one step within each successive period of thirty days from the preceding pleading ․”.  FN4. Practice Book § 10–8 provides, in pertinent part, the following:  “Commencing on the return day of the writ, summons and complaint in civil actions, pleadings, including motions and requests addressed to the pleadings, shall advance within thirty days from the return day, and any subsequent pleadings, motions and requests shall advance at least one step within each successive period of thirty days from the preceding pleading ․”

FN5. Practice Book § 17–32(b) provides, in pertinent part, the following:  “If a party who has been defaulted under this section files an answer before a judgment after default has been rendered by the judicial authority, the default shall automatically be set aside by operation of law ․”.  FN5. Practice Book § 17–32(b) provides, in pertinent part, the following:  “If a party who has been defaulted under this section files an answer before a judgment after default has been rendered by the judicial authority, the default shall automatically be set aside by operation of law ․”

FN6. On October 1, 2015, the defendants filed a motion for default for failure to plead against the plaintiff, who objected to this motion on October 13, 2015.  The defendants replied to the plaintiff's objection on October 15, 2015..  FN6. On October 1, 2015, the defendants filed a motion for default for failure to plead against the plaintiff, who objected to this motion on October 13, 2015.  The defendants replied to the plaintiff's objection on October 15, 2015.

FN7. Practice Book § 10–50 provides, in pertinent part, the following:  “Facts which are consistent with such statements but show, notwithstanding, that the plaintiff has no cause of action, must be specially alleged ․” Practice Book § 10–51 provides, in pertinent part, the following:  “Where several matters of defense are pleaded, each must refer to the cause of action which it is intended to answer ․”.  FN7. Practice Book § 10–50 provides, in pertinent part, the following:  “Facts which are consistent with such statements but show, notwithstanding, that the plaintiff has no cause of action, must be specially alleged ․” Practice Book § 10–51 provides, in pertinent part, the following:  “Where several matters of defense are pleaded, each must refer to the cause of action which it is intended to answer ․”

FN8. See Naugatuck Savings Bank v. Fiorenzi, 232 Conn. 294, 303, 654 A.2d 729 (1995) (“[N]o obligation in the three party arrangement [involving a letter of credit] is contingent on the performance of any of the other obligations”);  Armac Industries, Ltd. v. Citytrust, 203 Conn. 394, 398, 525 A.2d 77 (1987) (“[T]he single most important legal principle [in the common law of letters of credit] is the independence of [the] three commitments [of the underlying contract between the customer and beneficiary of the letter of credit, the contract between the customer and the issuer of the letter of credit, and the letter of credit itself between the issuer and the beneficiary], and especially the independence of the letter of credit from the underlying commercial agreement between the customer and the beneficiary”);  New York Life Ins. Co. v. Hartford National Bank & Trust Co., 173 Conn. 492, 498–99, 378 A.2d 562 (1977) ( “[I]t is important to stress that the letter of credit arrangement is completely independent of the underlying contract between the beneficiary of the letter of credit and the issuing bank's customer who has procured the letter of credit”)..  FN8. See Naugatuck Savings Bank v. Fiorenzi, 232 Conn. 294, 303, 654 A.2d 729 (1995) (“[N]o obligation in the three party arrangement [involving a letter of credit] is contingent on the performance of any of the other obligations”);  Armac Industries, Ltd. v. Citytrust, 203 Conn. 394, 398, 525 A.2d 77 (1987) (“[T]he single most important legal principle [in the common law of letters of credit] is the independence of [the] three commitments [of the underlying contract between the customer and beneficiary of the letter of credit, the contract between the customer and the issuer of the letter of credit, and the letter of credit itself between the issuer and the beneficiary], and especially the independence of the letter of credit from the underlying commercial agreement between the customer and the beneficiary”);  New York Life Ins. Co. v. Hartford National Bank & Trust Co., 173 Conn. 492, 498–99, 378 A.2d 562 (1977) ( “[I]t is important to stress that the letter of credit arrangement is completely independent of the underlying contract between the beneficiary of the letter of credit and the issuing bank's customer who has procured the letter of credit”).

Cosgrove, Emmet L., J.