Opinion
No. CV-08-501 51 20 S
November 5, 2008
MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION TO STRIKE
This is an action for the foreclosure of a mortgage. In its complaint, the plaintiff, Deutsche Bank, alleges that it is the owner and holder of a mortgage executed by the defendant, Marie E. Gue.
The defendant has pled two special defenses to the allegation in the plaintiff's complaint that she had executed a mortgage to the plaintiff. Those special defenses allege that (1) the mortgage was witnessed by only one witness, in contravention of Sec. 47-5, C.G.S.; and (2) that the mortgage document "was materially altered after the defendant signed it to add a witness in an effort to effectuate the enforceability of same."
The plaintiff has moved the court to strike each of those two special defenses arguing that they are not valid defenses to this foreclosure action.
Section 47-5, C.G.S., provides that, "(a) All conveyances of land shall be: (1) in writing; (2) if the grantor is a natural person, subscribed, with or without a seal by the grantor with his own hand . . .; (3) acknowledged by the grantor . . . to be his free act and deed . . .; and (4) attested to by two witnesses with their own hands."
The plaintiff notes that Sec. 47-36aa, C.G.S. provides that defects in documents of conveyance, including the lack of two witnesses, can be deemed to be remedied if not properly raised within two years after the execution of such a document. While not addressing the legal sufficiency of those special defenses had the defendant timely raised them, the plaintiff correctly points out that nothing was done by the defendant to raise those issues for two years after the mortgage was signed.
The purpose of the validating act (Sec. 47-36aa) is to correct errors and omissions which would render the document invalid. It was created to rectify mistakes in the otherwise proper execution of a document. There is a critical difference between a document which was not witnessed by the requisite number of witnesses and a document allegedly signed and sworn to by a person who is lying about having actually witnessed the signature of the maker of the document. It is one thing for evidence of the witness's role to be missing or deficient and quite another for the evidence of the witness's role to be fraudulent. It is unlikely that the legislature intended Sec. 47-36aa to be used to legitimatize fraudulent acts.
"[A] motion to strike challenges the legal sufficiency of a pleading . . ." Sherwood v. Danbury Hospital, 252 Conn. 193, 212 (2000). The role of the court is to "construe the complaint in the manner most favorable to sustaining its legal sufficiency." Pamela B. v. Ment, 244 Conn. 296 (1998). "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." Doe v. Yale University, 252 Conn. 641, 667 (2000). "In ruling on a motion to strike, the court is limited to the facts alleged in the [pleading]." Faulkner v. United Technologies Corp., 240 Conn. 576, 580 (1997). "[I]t does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." Id., 588.
In order to establish a prima facie case, the proponent must submit evidence which, if credited, is sufficient to establish the fact or facts which it is adduced to prove. Berchtold v. Maggi, 191 Conn. 266, 270 (1983). New England Savings Bank v. Bedford Realty Corp., 246 Conn. 595, 608 (1998).
A critical component of any foreclosure action is the existence of a valid, legally enforceable mortgage instrument. The defendant has raised allegations which, if established, would be a valid special defense which could defeat the plaintiff's cause of action.
For the foregoing reasons, the plaintiff's motion to strike defendant's first and second special defenses is hereby denied.