Opinion
CV166021018S
04-11-2018
U.S. BANK NATIONAL ASSOCIATION v. Robert SABIA et al.
UNPUBLISHED OPINION
OPINION
John W. Moran, J.T.R.
Presently before the court is the plaintiff’s motion to strike the defendants’ counterclaims alleging trespass and Connecticut Unfair Trade Practices (CUTPA), and a special defense alleging unconscionability. The plaintiff, U.S. Bank, N.A., brought this action to foreclose on a mortgage given by the defendants, Robert and Faith Sabia.
The plaintiff originally moved to strike two special defenses alleging unconscionability and lack of standing. The defendant, however, withdrew the defense of lack of standing.
" 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). " A motion to strike shall be used whenever any party wishes to contest ... the legal sufficiency of any answer to any complaint, counterclaim or cross complaint, or any part of that answer including any special defense contained therein." Practice Book § 10-39(a).
The plaintiff moves to strike the special defense on the ground that it is legally insufficient. More particularly, the plaintiff argues that the special defense only provides bald legal conclusions that do not assert the elements of a claim of unconscionability, and that it does not relate to the making, validity or enforcement of the lien, but focuses on conduct that occurred after the loan origination. " 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 ... 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." (Internal quotation marks omitted.) Chase Manhattan Mortgage Corp. v. Machado, 83 Conn.App. 183, 188, 850 A.2d 260 (2004). Here, the defendants fail to allege facts that relate to the making, validity, or enforcement of the mortgage, but rather allege conduct that occurred after the loan origination, and therefore, the special defense is stricken.
" [I]n a foreclosure action, a counterclaim must relate to the making, validity or enforcement of the mortgage note in order properly to be joined with the complaint ... Thus, [c]onduct on the part of the [foreclosing party] that occurred after the loan documents were executed and not necessarily directly related solely to enforcement of the note ... properly has been found not to arise out of the same transaction as the complaint." (Citations omitted; internal quotation marks omitted.) U.S. Bank, National Ass’n v. Sorrentino, 158 Conn.App. 84, 95, 118 A.3d 607, cert. denied, 319 Conn. 951, 125 A.3d 530 (2015).
In the first counterclaim alleging trespass, the defendants claim that the plaintiff has employed agents to come upon their property, leaving notice about the foreclosure, causing extreme emotional and physical distress. In the second counterclaim alleging a CUTPA violation, the defendants reallege the first counterclaim, but add that the plaintiff’s agents, by trespassing, have engaged in unfair and deceptive acts. These counterclaims, however, allege facts that do not relate to the " making, validity, or enforcement of the mortgage." Thus, they must be stricken.
For the foregoing reasons, the plaintiff’s motion to strike the defendants’ counterclaims and special defenses is granted.