DocketNumber: No. 0129019
Citation Numbers: 1996 Conn. Super. Ct. 4010-E
Judges: KULAWIZ, J.
Filed Date: 5/23/1996
Status: Non-Precedential
Modified Date: 4/18/2021
In the first special defense, Bochino alleges that he transferred his undivided one-half interest in the property to Nesline as part of their separation agreement in 1987, and therefore, any deficiency judgment should be rendered solely against Nesline, not against Bochino. In the second special defense, Bochino claims that any deficiency judgment should not exceed the difference between the valuation established by the Court, and the plaintiff's claim. Bochino argues, in the third special defense, that Derby Savings has not dealt fairly with him in three ways: first, by not redeeming "the mortgaged premises in a related foreclosure action in which Derby Savings is a party defendant, even though the property had a value of $15,000"; second, by waiting to foreclose on the premises until 1995, four years after the defendants defaulted on the property, and when the value of the property was much higher than it presently is; third, by failing to attempt to mitigate its damages since the date of the default.
On March 14, 1996, Derby Savings filed the motion for summary judgment that is presently before the Court, claiming that there is no genuine issue of fact concerning Bochino's defenses and Bochino and Nesline's liability under the complaint. In support of its motion, Derby Savings submitted a memorandum of law, several affidavits, and other documentary evidence. Bochino's memorandum in objection to the motion for summary judgment and supporting affidavit consists merely of a claim that Nesline has filed a Chapter 7 bankruptcy petition, and that this case must be stayed until relief is given from the automatic stay provisions of
Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Waterand Way Properties v. Colt Mfg. Co.,
The moving party bears the burden of establishing the non-existence of any material fact, . . . and the trial court must view the evidence before it in the light most favorable to the nonmoving party. Honan v. Greene,
"As a general rule, defenses available in a foreclosure action are limited to payment, discharge, release, satisfaction or invalidity of a lien. However, since foreclosure is an equitable proceeding, the court may consider, aside from these specifically enumerated defenses, all relevant circumstances to ensure that complete justice is done. The determination of what equity requires in a particular case is a matter for the discretion of the court." (Internal citations omitted.)Shawmut Bank v. Carriage Hill Estates, Superior Court, Docket No. 11 65 93, judicial district of Waterbury (June 10, 1994, West, J.).
Because they are not recognized defenses, the first and CT Page 4010-H second special defenses are invalid. "Courts have not been receptive to foreclosure defendants who have asserted defenses and counterclaims based on factors outside of the note or mortgage." Shoreline Bank Trust Co. v. Leninski,
The final special defense is also not one of the recognized defenses. However, a claim that Derby Savings failed to mitigate its damages invokes the equity power of this Court, which feels obliged to consider the claim. Bochino argues that Derby Savings failed to mitigate its damages, thereby reducing the amount of damages Bochino should have to pay. In response to this argument, Derby Savings cites several cases that stand for the proposition that a holder of a note does not have to accept property as full payment for that debt. See FirstFederal Bank of Connecticut v. Zavatsky,
The motion for summary judgment is granted against Bochino and Nesline, because no material questions of fact are in disputed. Derby Savings has produced sufficient evidence that the note was issued, that Bochino and Nesline defaulted on the note, and that there are no valid defenses to the foreclosure action. Additionally, Bochino has not carried his burden under Practice Book § 380, which requires that all opposing parties to CT Page 4010-I a motion for summary judgment file affidavits, documents or exhibits to support their objection to the motion. Duhaime v.American Reserve Life Insurance Company,
KULAWIZ, J.