Seminole Realty, LLC v. Sekretaev ( 2015 )

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APPENDIX
SEMINOLE REALTY, LLC v. SERGEY SEKRETAEV*
Superior Court, Judicial District of Windham
File No. CV-10-6002259
Memorandum filed October 24, 2014
Proceedings
Memorandum of decision on plaintiff’s action to fore-
close mortgage on certain of defendant’s real property.
Judgment in part for the plaintiff.
Sergey Sekretaev, self-represented, the defendant.
Gordon P. Videll, for the plaintiff.
Opinion
BOLAND, J. In this action, plaintiff pursues a foreclo-
sure of a first mortgage on residential property. The
named defendant, who represents himself, is owner of
the equity in the property and the lone defendant in the
case. The matter came before the court for trial on
September 30, 2014, and was continued to a second
day, October 23. In this memorandum, the court will
address: the complaint, dated July 14, 2010; the answer
(#111), dated August 9, 2010,1 which includes special
defenses and counterclaims; plaintiff’s reply to the
answer, defenses and counterclaims, dated September
10, 2010 (#115); and two motions to dismiss defendant
filed on August 28, 2014 (##222 and 223).
As may be obvious from the ‘‘CV 10’’ docket number,
this case has been pending for some time and has seen
a number of issues raised along the way. While the two
recent motions to dismiss challenged the court’s subject
matter jurisdiction and thus required a response, each
depended for resolution upon factual issues requiring
an evidentiary hearing. Since at the time of their filing
trial had already been scheduled to commence on Sep-
tember 30, the court indicated that the parties could
produce their evidence on those jurisdictional matters
in the course of trial and the motions would be taken
under advisement until now.
I
PLAINTIFF’S CASE-IN-CHIEF
Having heard the parties and examined their exhibits,
the court makes the following findings:
a. On April 24, 2009, plaintiff conveyed to defendant
by warranty deed title to a condominium unit in the
town of Sterling, known as Unit No. 4 of River Bend
Condominiums, for a total price of $140,995 (Ex. I);
b. On that same date, to finance the purchase, defen-
dant paid $4000 in cash, and executed a promissory
note (‘‘the note’’) to plaintiff for the amount of $136,995,
with interest only (annual rate: 7.5 percent) payable
monthly, and the entire principal plus any accrued but
unpaid interest due and payable in full on April 24, 2010
(Ex. 2);
c. On that same date, as security for the note, he
issued to plaintiff a mortgage encumbering the condo-
minium unit described in ‘‘a’’; the mortgage was
recorded on April 27, 2009, at volume 127, pages 482-
492 of the Sterling Land Records (Ex. 1);
d. Plaintiff remains the holder of both the note and
the mortgage, and has standing to bring this action;
e. Defendant made only eight of the monthly interest
payments, and has made no payment towards the
principal;
f. Plaintiff declared the defendant to be in default of
the provisions of the note and mortgage on April 10,
2010 (Ex. 5);
g. On the note, plaintiff is owed the following as of
September 30, 2014:
Principal: $136,995.00
Interest: (per affidavit of Sept. 30) $47,263.85
Interest: Oct. 1—24, per diem of $28.15: $675.60
Total: $184,934.45
(postjudgment, per diem interest accrues at $28.15);
h. The value of the condominium unit which is encum-
bered by the mortgage is $75,000 as of October 23,
2014; and
i. Plaintiff has satisfied the requirements of the Emer-
gency Mortgage Assistance Program and the Federal
Loss Mitigation Program.
It is relevant to point out that at the time of the 2009
title transfer and mortgage issuance, defendant had
independent, competent counsel. ‘‘In a mortgage fore-
closure action, [t]o make out its prima facie case, [the
foreclosing party] ha[s] to prove by a preponderance
of the evidence that it [is] the owner [or holder] of
the note and mortgage and that [the mortgagor] ha[s]
defaulted on the note.’’ (Internal quotation marks omit-
ted.) Franklin Credit Management Corp. v. Nicholas,
73 Conn. App. 830, 838, 812 A.2d 51 (2002), cert. denied,
262 Conn. 937, 815 A.2d 136 (2003). Given the findings,
the court concludes that plaintiff is entitled to a judg-
ment of foreclosure unless the defendant raises a suffi-
cient barrier to that result in his answer or special
defenses.
II
ANSWER
The defendant denies all seven paragraphs of the
plaintiff’s complaint. As to paragraphs 2, 3, and 4, he
adds that he ‘‘can neither admit nor deny’’ the allega-
tions thereof. Throughout the trial, therefore, the court
viewed the plaintiff’s task as to prove that the allega-
tions of its complaint are true by a preponderance of
the evidence, without reliance upon any admissions
by defendant.
III
SPECIAL DEFENSES
The special defenses here number twelve. Plaintiff
has denied all these defenses,2 but never sought to win-
now this list by a motion to strike or other means. The
degree to which a defendant in a foreclosure action
may pursue multiple special defenses is an unsettled
question; Peoples United Bank v. E2A, LLC, Superior
Court, judicial district of New London, Docket No. CV-
XX-XXXXXXX (December 12, 2013) (Cosgrove, J.).
Because this defendant is a self-represented person, the
court would be acting consistently with authority if it
allowed him some latitude in presenting his proof of
these allegations. More importantly, though, is that here
the relationship of the parties is not exclusively that of
lender and borrower. Plaintiff built and marketed the
condominium sold to defendant, and took back the one-
year note as an accommodation to him but also so as
to enable it to proclaim the property as ‘‘sold’’ even
before defendant qualified for third-party financing.
Additionally, plaintiff managed the condominium devel-
opment under the trade name ‘‘Riverbend Condomin-
ium Association.’’ Defendant’s dissatisfaction with
plaintiff’s work as builder and performance as manager
played a role in his performance as a borrower and
goes beyond the four corners of the lending documents.
‘‘The question to decide is whether the subject of
the defendant’s counterclaim is sufficiently intertwined
with the complaint that it arises from the same transac-
tion.’’ CitiMortgage, Inc. v. Rey, 150 Conn. App. 595,
608, 92 A.3d 278, cert. denied, 314 Conn. 905, 99 A.3d
635 (2014). Because ‘‘a mortgage foreclosure action is
an equitable proceeding, the trial court may consider
all relevant circumstances to ensure that complete jus-
tice is done. . . . The determination of what equity
requires in a particular case, the balancing of the equi-
ties, is a matter for the discretion of the trial court.
. . . Where the plaintiff’s conduct is inequitable, a court
may withhold foreclosure on equitable considerations
and principles.’’ (Internal quotation marks omitted.) TD
Bank, N.A. v. M.J. Holdings, LLC, 143 Conn. App. 322,
326, 71 A.3d 541 (2013). The court has these principles in
mind in concluding that the allegations of the complaint,
the special defenses and the three counterclaims all
involve the same transaction and the same parties.
Therefore, the court will not now peremptorily con-
strain defendant in pursuing his issues.
First Special Defense
Defendant first claims that plaintiff failed to send him
notice of a default as required by ¶ 17 of the mortgage,
and that such a notice is a condition precedent to accel-
eration of his debt. Exhibit 5 is a copy of a demand
letter from plaintiff’s counsel to defendant dated April
10, 2010, mailed to him via United States mail addressed
to the post office box which defendant admitted was
his. Attorney Gordon P. Videll, who sent the letter,
testified that it was not returned to him. The defendant
denied receipt of the letter. There can be no argument
that the fact of default was known to defendant, since
he had directed his own letter to plaintiff on March 28,
2010, stating, ‘‘I decided to put the payments on hold
until all repair will be done’’; (Ex. D). Other exhibits
make clear that from February on of that year the par-
ties were in intense negotiation over the problems at
the condo. Videll’s testimony that the letter was mailed
entitles plaintiff to the presumption that the letter was
also received; Garland v. Gaines, 73 Conn. 662, 49 A.
19 (1901). Defendant’s denial is insufficient to rebut
that presumption. Under the circumstances, the court
finds that this special defense is without merit.
Defendant at trial raised a separate claim regarding
this default notice, namely, that plaintiff failed to pro-
duce a copy of the notice in response to a production
request filed by defendant in January of 2011. He sub-
mitted, as Exhibit L, a copy of the request with plaintiff’s
March 15, 2011 answer attached. He is correct that
plaintiff’s reply, ‘‘All required documents have been
delivered previously as part of the complaint,’’ is a mis-
statement as it relates to this item, which is not a part
of the material delivered with the complaint; see August
4, 2010 Return of Service, as of record appears. Plain-
tiff’s counsel characterized the misstatement as an over-
sight rather than an intentionally deceptive act.
Defendant demands a sanction, up to and including
dismissal of the foreclosure action. Given that defen-
dant had a copy of this very notice obtained by some
other means, that sanction would be grossly dispropor-
tionate to any harm done to him by the discovery inaccu-
racy. The court will, however, consider whether other
sanctions are warranted in response to this circum-
stance.
Second Special Defense
The Second Special Defense lists a broad array of
charges that plaintiff has failed to service and adminis-
ter the loan in compliance with federal, state, and local
laws. Key to its applicability is that plaintiff is ‘‘a Bank-
ing Corporation’’ subject to such laws and regulations.
Plaintiff is not a banking corporation, but a limited
liability company primarily involved in building and
selling homes. It became a lender in this case under
unusual circumstances. Furthermore, defendant’s evi-
dence did not establish that as a lender plaintiff violated
any pertinent standard. The court therefore finds that
this special defense is without merit.
Third Special Defense
The Third Special Defense claims that plaintiff failed
to comply with a requirement imposed upon lenders
by the National Housing Act, 12 U.S.C. § 1701x, that
each provide an eligible borrower with a preforeclosure
notice outlining what counseling options exist to avoid
loss of the home. Defendant has not attempted to prove
that he is an eligible borrower, defined in the Code as
a person rendered unable to pay by a decline in income.
Defendant offered income evidence only in response
to this court’s questions as to the cost of repairing
damages addressed by his second counterclaim, and
that evidence was sketchy, unsupported by any docu-
mentation or other corroborating information, and not
probative in any respect that would have led to a differ-
ent outcome here. Defendant has insisted throughout
that his decision to not pay even the interest on the loan
as far back as 2010 was made strategically in response to
what he regarded as plaintiff’s nonperformance of its
contractual obligations to him. His income, or lack
thereof, is immaterial to the equities of this case; if
plaintiff had provided the notice, assuming that it was
required, the court finds that would have made no differ-
ence to the parties’ positions. The court therefore finds
that this special defense is without merit.
Fourth Special Defense
This defense is a composite of parts of the above,
alleging that plaintiff failed to service the loan properly
and failed to afford him access to debt management
and relief options. He offered no proof concerning this
defense at all. It is found to be without merit.
Fifth Special Defense
This defense alleges that plaintiff breached the pur-
chase and sale agreement by failing to underwrite the
first year’s condominium association fees. The court
finds that the allegation is true and that plaintiff owes
defendant $1680. However, that amount will be consid-
ered as an offset to plaintiff’s debt, as discussed below.
Equity does not warrant allowing payment of a debt of
approximately $185,000 to be avoided because of an
unpaid bill amounting to less than 1 percent thereof.
Sixth Special Defense
This defense alleges comparative negligence. Com-
parative negligence has no place in an action to fore-
close a mortgage. This special defense is found to be
without merit.
Seventh Special Defense
This defense alleges that plaintiff failed to maintain
its limited liability status with the Office of the Secretary
of the State. He deems this ‘‘questionable.’’ By implica-
tion, he is raising the company’s failure to comply with
business update requirements as a full defense to plain-
tiff’s foreclosure as a whole. Exhibit 7 is uncontroverted
evidence that plaintiff is today a business recognized
by the Secretary of the State. Although with respect to
a corporation rather than a limited liability company,
the futility of this issue as a defense was established
long ago in the case of DiFrancesco v. Kennedy, 114
Conn. 681, 687–88, 160 A. 72 (1932): [a] corporation is
a de facto corporation where there is a law authorizing
such a corporation and where the company has made
an effort to organize under the law and is transacting
business in a corporate name. . . . A de facto corpora-
tion is an apparent corporate organization asserted to
be a corporation by its members and actually existing
as such, but lacking the creative fiat of the State. . . .
[B]ecause of failure to comply with some provision of
the law, [it] has no legal right to corporate existence
as against a direct attack by the State . . . [but it] is in
plain English a corporation in fact.’’ (Citations omitted;
internal quotation marks omitted.) Accord Clark-
Franklin-Kingston Press, Inc. v. Romano, 12 Conn.
App. 121, 529 A.2d 240, cert. denied, 205 Conn. 803, 531
A.2d 935 (1987). This special defense has no merit.
Eighth Special Defense
This defense claims plaintiff acted with unclean
hands.
In Thompson v. Orcutt, 257 Conn. 301, 777 A.2d 670(2001), it was held that since an action to foreclose a
mortgage is an equitable proceeding, a party seeking
its benefit must establish that he comes into court with
clean hands. ‘‘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.’’
(Internal quotation marks omitted.) Id., 310. While that
language may seem to place upon plaintiff the burden
of proving its faultlessness as an element of standing
to sue, the Court immediately went on to indicate that
‘‘[u]nless the plaintiff’s conduct is of such a character
as to be condemned and pronounced wrongful by hon-
est and fair-minded people, the doctrine of unclean
hands does not apply.’’ (Internal quotation marks omit-
ted.) Id. Shortly after Thompson, the Appellate Court
clarified that the burden of proving unclean hands rests
upon the party asserting the defense, when it held, in
Ridgefield v. Eppoliti Realty Co., 71 Conn. App. 321,
801 A.2d 902, cert. denied, 261 Conn. 933, 806 A.2d 1070(2002), that ‘‘[t]he party seeking to invoke the clean
hands doctrine to bar equitable relief must show that
his opponent engaged in wilful misconduct with regard
to the matter in litigation.’’ (Internal quotation marks
omitted.) Id., 335.
As indicators of ‘‘unclean hands,’’ defendant returns
to the improper servicing procedures raised in the Sec-
ond and Fourth Defenses, as discussed above. Rechar-
acterizing those claims as evidence of ‘‘unclean hands’’
is not sufficient to sustain defendant’s burden of plead-
ing, let alone proof. In the circumstances present, the
court finds this special defense to be without merit.
Ninth Special Defense
This defense is failure of good faith and fair dealing.
The substance of this nebulous charge is that plaintiff
denied defendant ‘‘access to the residential mortgage
servicing protocols applicable to the subject note and
mortgage.’’ No further factual or legal basis is supplied.
As expressed, this defense reads as a restatement of
the substance of the Second and Fourth Defenses, and
is likewise found to be without merit.
Tenth Special Defense
This speaks to the parties’ disputes as to the physical
condition of the condominium. While the alleged
breaches of warranty by plaintiff with respect to the
condition of the premises may be material, they do not
constitute a special defense to the foreclosure. Instead,
they are appropriately the subject of a counterclaim.
The issues regarding the condominium’s quality or lack
thereof will be discussed below as an aspect of the
second count of the counterclaim.
Eleventh Special Defense
Again, this treats of problems defendant had with
refinancing the one year note as a result of construction
mistakes, and the same observation made as to the
Tenth Special Defense applies.
Twelfth Special Defense
Here, defendant raises the issue of the value of the
condominium at the time he purchased it.3 This is not
a special defense to a foreclosure. The court notes that
the appraisal of present value provided by plaintiff’s
expert matches defendant’s claim in court on Septem-
ber 30 that the condominium unit is today worth
$75,000, as the court has found, above.
IV
COUNTERCLAIMS
Defendant has filed three counterclaims here, briefly
summarized thus:
1. The first count of the counterclaim seeks to have
plaintiff’s mortgage and note declared null and void on
the basis that they resulted from deceptive and fraudu-
lent practices in both their origination and as serviced
by the plaintiff.
2. The second count of the counterclaim alleges fail-
ure by plaintiff to comply with the New Home Warranty
Act and the parties’ Purchase Agreement.
3. The third count of the counterclaim alleges failure
of plaintiff to comply with the acceleration clause of
Paragraph 17 of the mortgage.
Plaintiff denies all three.4 The court will first address
the third of these counts. It is a restatement of the same
issues defendant raised in the form of the first special
defense. On the merits, the court has determined that
issue as set forth above. Defendant produced no addi-
tional evidence on this score in his case-in-chief, and
the court thus finds that the allegations of the third
count of the counterclaim have been adequately
addressed in the treatment of the special defense.
The first count alleges two distinct violations of fed-
eral statutes. First, he claims the benefit of 15 U.S.C.
§ 1635, which permits rescission of the loan transaction
within three days by a debtor. Section 1635 is inapplica-
ble to this case. Section 1602 of title 15 of the United
States Code contains the definitions and rules of con-
struction which must be read in concert with § 1635 to
interpret how this entire paragraph is to be applied,
and in subsection w—now codified as subsection ‘‘x,’’5
it defines ‘‘ ‘residential mortgage transaction’ [as] a
transaction in which a mortgage, deed of trust, purchase
money security interest arising under an installment
sales contract, or equivalent consensual security inter-
est is created or retained against the consumer’s dwell-
ing to finance the acquisition or initial construction of
such dwelling.’’ Section 1635 (e) provides that it ‘‘does
not apply to . . . a residential mortgage transaction as
defined in section 1602 (w) of this title.’’ That is the
type of transaction involved here, and thus no three-
day right of rescission was imposed upon the deal.
Next, he claims that 15 U.S.C. § 1639 forbids the
extension of credit to a debtor unless the creditor has
made an adequate investigation of the borrower’s cred-
itworthiness to enter into the original transaction. His
invocation of § 1639 is equally inapplicable. This section
limits a creditor’s privilege to engage a consumer in a
‘‘high cost mortgage,’’ defined as one in which ‘‘the
annual percentage rate at consummation of the transac-
tion will exceed by more than 6.5 percentage points
. . . the average prime offer rate for a comparable
transaction.’’ The limit permitted, therefore, would have
to be lower than the interest rate agreed upon by the
parties here, that is, 7.5 percent. Defendant bears the
burden of showing that plaintiff violated this statute.
He offered no evidence to that effect. Furthermore, the
prime interest rate on April 24, 2009, the court notes,
was 1.25 percent,6 meaning that a loan under 7.75 per-
cent would be outside the scope of § 1639.
The second count is the heart of his case. He contends
that the condition of the premises was defective, and
that plaintiff, in its role as builder, and equally in its role
as condominium manager, refused to make required
repairs. His frustration with plaintiff’s inertia (at best)
or deceptions (at worst) led to his deciding, even before
the due date of the one year note, to refuse (on the
advice of counsel, he claims) to make any payments to
plaintiff or to refinance that obligation as the parties
had agreed upon. He has made no payment since the
beginning of 2010, but has maintained title to and occu-
pancy of the condominium throughout the four-plus
years that this suit has been pending. Throughout that
time, he has vigorously defended this lawsuit.
The court allowed him several hours to enumerate
the building’s defects and the impact they had on the
value of the premises with the intent of allowing him
to prove damages, if any, that would, at the very least,
provide him an offset to the debt plaintiff claims. If
these damages were of sufficient dimension, perhaps
that would lead the court to conclude that plaintiff’s
demand for foreclosure is inequitable. Defendant used
much of this time to argue his entitlement to the multi-
ple legal defenses he believes he enjoys under federal
law, as addressed above, and to express in very nebu-
lous terms the toxic impact plaintiff’s breaches have
had upon his family, his career, and his faith in the
promise of America. Defendant maintains that his
losses in those categories are inestimable, and con-
ceded that he has no evidence of any damages affecting
those concerns which can be translated into dollar
amounts.
With much prodding from this court, he focused in
upon two specific defects. One involved a crack in a
basement wall which led to water accumulating in that
area shortly after he took occupancy. There was no
evidence of the weather conditions at the time this
occurred. Plaintiff met his complaints with indifference.
Eventually, defendant mopped up the water, purchased
concrete and other supplies, and repaired the crack.
Thereafter, although exactly when is unclear, plaintiff
sent in a contractor who replaced some damaged sheet-
rock. Defendant has not experienced any subsequent
water problems in the ensuing four years. He had no
evidence of any out-of pocket expenditures he incurred
in making this repair. The court finds on the basis of
his testimony that plaintiff failed in its obligation as the
builder of this new residential unit to make a necessary
repair when notified by its buyer to do so, and that
defendant’s labor in making the repairs has a value
of $2000.
His second concern relates to a dead tree which fell
on the property in a storm. It did not hit the condomin-
ium, or do any damage to person or property. Defendant
demanded that the condominium association remove
it, which it failed to do. However, he did not relate
whether the tree had previously stood on condominium
property or that of an abutter before it came down,
whether he paid to have it removed, or, indeed, whether
it even has been removed. Instead, he claims that the
danger inherent in this event has ‘‘scared’’ him to the
point of determining that the plaintiff has no equitable
right to demand his payment of its mortgage.
As to the flooded basement problem, the court holds
that allowing him an offset to plaintiff’s debt in the
amount of $2000 is an equitable response. Like the con-
dominium association fee default on plaintiff’s part
noted above, denying plaintiff’s request for a foreclo-
sure as a consequence of this breach would be dispro-
portionate to the harm he suffered.
As to defendant’s emotional response to the fallen
tree—and, moreover, as to the emotional impacts which
he claims his long standoff with plaintiff has had upon
his career and his family—this court will only observe
that while defendant is undoubtedly sincere in his per-
ception of these unfortunate consequences, they lack
any objectively discernible connection to the actual
occurrences on the subject premises. His quest to have
this court determine that plaintiff must forfeit its fore-
closure claim against him on the strength of these occur-
rences is objectively unreasonable.
V
MOTIONS TO DISMISS (##222 AND 223)
Motion to dismiss #222, filed on August 28, claims
that plaintiff is not the real party in interest and thus
lacks standing. His claim is that the limited liability
company is the alter ego of its sole member, Joseph
DiBuono. Aside from that allegation, defendant pro-
duced no evidence sufficient to allow a court to pierce
the corporate veil that segregated DiBuono individually
from the business that is the plaintiff here. There is no
factual basis for this motion, and it ought to be denied.
Number 223, filed the same date, claims that plaintiff
lacked formal status with the office of the Secretary of
the State as a result of its late filing of annual paperwork,
and hence lacks standing to pursue this foreclosure
action. The findings and discussion set forth above
under ‘‘Seventh Special Defense’’ need not be repeated;
the defendant cites a host of cases involving mortgagee
standing to pursue a foreclosure which all arise from
very different factual scenarios. This motion, likewise,
ought to be denied.
These two motions are, notably, the fifth and sixth
motions to dismiss that he has filed in this action. All
four prior motions were accompanied by lengthy memo-
randa of law, met by plaintiff’s objections, and denied
by this or previous jurists.
VI
CONCLUSION AND ORDERS
The court concludes that the plaintiff has proven by
a preponderance of the evidence that defendant is liable
to it upon the promissory note secured by the mortgage,
and that the defendants’ special defenses (except num-
ber five) are legally inapplicable or factually supported
by any material evidence. The first and third counts of
his counterclaim are inapplicable. Defendant has
proven in part the allegations of the second count
thereof, and is entitled to an offset.
It is therefore adjudged, ordered, and decreed:
1. A judgment of strict foreclosure is granted;
2. Plaintiff’s debt of $184,934.45 shall be reduced by
$2000 consistent with the court’s finding on the second
counterclaim, and by $1680 consistent with the court’s
findings on the fifth special defense, to a net amount
of $181,254.45;
3. The first Law Day is December 1, 2014, with subse-
quent dates for any subsequent encumbrancers in
inverse order of their priority;
4. Plaintiff is awarded no attorney’s fee or costs, in
light of its breaches of warranty and contract;7
5. The motions to dismiss filed August 28, 2014, are
each denied; and
6. Plaintiff shall file an amended answer to the special
defenses and counterclaims not later than November
5, 2014 (see footnote 2 of this opinion).
* Affirmed. Seminole Realty, LLC v. Sekretaev, 162 Conn. App. 167,
A.3d (2015).
1
For no known reason, and without seeking permission of the court,
defendant filed four separate and distinct versions of an answer with special
defenses and counterclaim; the first arrived on July 28, 2010 (#106), the
second on August 4 (#108), and two on August 9 (##109 and 111). The last,
#111, is the operative answer for the purposes of this memorandum.
2
While there are twelve special defenses pled in the fourth iteration
of defendant’s answer, plaintiff’s September 10, 2010, reply to the special
defenses, #115, answered ‘‘denied’’ eleven times. A close perusal of the four
versions of defendant’s pleading reveal that the July 28 edition (#106) had
fifteen special defenses and a single counterclaim; the August 4 version
(#108) had eleven special defenses and two counterclaims; the August 9
version, #1(#109), had ten special defenses and two counterclaims, and the
August 9 version, #2 (#111), which the court is treating as the operative
answer, has twelve special defenses and three counterclaims.
It is evident that the plaintiff replied to the August 4 version and missed
the last special defense and the third counterclaim slipped into the August
9 #2 answer. Ordinarily, this would be a serious concern. Here, where
defendant has papered the file with multiple, multipaged pleadings with
shifting claims and charges, the court regards it as more a matter of form
than of substance. The court notes that plaintiff’s succinct reply to each of
the August 4 special defenses was ‘‘denied,’’ and will impute to plaintiff,
subject to the record being corrected, a ‘‘denial’’ to the twelfth defense also.
A similar problem attends the answer to the counterclaims. Plaintiff’s
answer of September 10 was that ‘‘1’’ and ‘‘2’’ are both denied. There were
two in the August 4 version, but three in August 9’s #2. So, as with the
missing reply to special defense number twelve, the court will impute a
denial to counterclaim three.
To correct the record, however, plaintiff is directed to file an amended
reply to all twelve special defenses not later than November 5. If the replies
differ from the version of September 10, 2010, other than with respect to
these two corrections, the court will conduct further proceedings as nec-
essary.
3
Exhibit M is a sheaf of preclosing e-mails containing various indications
that defendant, who was conducting negotiations while still in Europe, was
concerned about the fair market value of the condominium he was buying.
He was advised by his Realtor to commission an appraisal. Whether or not
he did so then is unclear.
4
See footnote 2 of this opinion.
5
Pub. L. 111-203 recodified § 1602 (w) as § 1602 (x).
6
Source: www.comptroller.tn.gov/shared/. . ./20130906Interest
TableSince2002.
7
The denial of attorney’s fees and costs is also a sufficient sanction for
the discovery mistake discussed in response to the First Special Defense.