Opinion
No. CV 05-4017440
April 5, 2006
MEMORANDUM OF DECISION ON PLAINTIFF'S MOTION TO STRIKE
Plaintiff, Deutsche Bank National Trust Company, moves to strike the counterclaims of defendant, Coram Healthcare Corporation (hereinafter "Coram").
Plaintiff's complaint alleged a mortgage note and deed executed by defendant Michael T. Ganci on July 19, 2002, in favor of Aames Funding Corp. for $214,400.00 on property at 23 Lakeview Drive, Farmington, Connecticut. On July 24, 2002, that mortgage was assigned to plaintiff Deutsche Bank National Trust Company, but the assignment was not recorded until April 19, 2005 on the Farmington Land Records. In its complaint plaintiff seeks to foreclose the mortgage. However, the mortgage has been paid off and released and the file shows that the foreclosure action was withdrawn as to all defendants on December 23, 2005.
Defendant Coram's counterclaim alleges in the first count as follows:
On January 11, 2001, Coram obtained a judgment against Marianna L. Ganci in New Jersey in the amount of $56,250.00 plus attorneys fees of $4,097.35 and interest of $7,025.46 for a total of $57,372.81; on May 24, 2001, Coram served a Connecticut Superior Court complaint against defendant Marianna L. Ganci on the New Jersey judgment; on July 9, 2002, Aames Funding Corporation, predecessor-in-interest to plaintiff Deutsche Bank National Trust Company made a credit check on defendants Michael and Marianna Ganci; on July 19, 2002, to avoid payment of Marianna's obligation to defendant Coram, plaintiff encouraged and advised Marianna to quit claim her one-half interest in the Farmington property to Michael Ganci; on October 25, 2002, Coram obtained a judgment in the Connecticut Superior Court against Marianna Ganci in the amount of $79,647.20 and recorded the judgment lien on December 2, 2002; on February 18, 2003, Coram served a Superior Court complaint against Michael Ganci for fraudulent conveyance; plaintiff assisted and contributed to the Ganci's misrepresentation, fraud and fraudulent conveyance; plaintiff's conduct interfered with Coram's collection of its lien and judgment; "plaintiff is liable for its predecessor-in-interest's conduct and action." Count two alleges plaintiff violated CUTPA by its actions alleged in the first count. In its prayer for relief defendant Coram seeks money damages and a determination that plaintiff's note and mortgage does not have priority over Coram's lien.
A motion to strike requires the court to take the allegations of the counterclaim as true even though it is apparent from the allegation that "plaintiff is liable for its predecessor-in-interest's conduct and action," that the fraud if any, is that of Aames Funding Corporation and not that of plaintiff Deutsche Bank National Trust Company, the subsequent assignee of the mortgage. There is no allegation that plaintiff Deutsche Bank National Trust Company colluded with Aames Funding in the alleged fraud.
The cases clearly hold that an assignee is not responsible for the acts of an assignor. As stated in ICC Performance 2 Limited v. Pollack, No. CV 94-313596, jud dist. of Fairfield (April 16, 1997, Levin, J.) ( 19 Conn. L. Rptr. 384), "However, `[i]n the absence of an express provision, an assignee is not required to assume the original responsibilities of the assignor . . . This is true both for claims of breach of contract . . . and for claims that the assignor committed fraud, or misrepresentation.' "(citations omitted) p. 3. See also Mundaca Investment Corp. v. Daddona, No. CV 95-0144551, jud. district of Stamford-Norwalk at Norwalk at Stamford (Jan. 4, 1996, Mickey, J.) p. 5; SCP Corp. v. BankBoston, No. X01CV9890116198, jud. district of Waterbury, complex litigation (Mar. 18, 1999, Hodgson, J.) ( 24 Conn. L. Rptr. 304).
Plaintiff claims the counterclaim is moot because with the mortgage released and the foreclosure action withdrawn, the mortgage no longer constitutes a priority to Coram's lien. However, the mortgage was on the property from July 2002 until December 2005 and during that period it may have impeded Coram's enforcement of its judgment lien and may have caused some damages.
Because the foreclosure action has been withdrawn, the motion to strike the claim for the relief of determination of the priority of Coram's judgment lien over the mortgage is granted. But, because the counterclaim alleges fraud on the part of the plaintiff, which allegations must be assumed true for this motion, the motion to strike the balance of the counterclaims is denied.