Real Estate Funding v. Nadeau, No. 90-382539 (Jan. 3, 1992)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION ON PLAINTIFF'S MOTION TO STRIKE SPECIAL DEFENSES The plaintiff has moved to strike the seven special defenses filed by the defendants to plaintiff's foreclosure action.

I. The first special defense is that the plaintiff lacks authority to do business in this state and therefore lacks capacity to maintain this suit.

The motion to strike is granted because the defendants have not pleaded the statute upon which they rely. Practice Book 109A. In addition, the defendants have not alleged the CT Page 884 "transaction of business" by the plaintiff.

II. The second and third special defenses allege the defense of usury.

The motion to strike these defenses is denied because they allege an illegality not on the face of the pleadings and such allegation is a proper special defense. Practice Book 164.

III. The fourth special defense sets up the defense of fraud.

The motion to strike this defense is denied because it is a proper special defense and is set forth in an acceptable form. Practice Book 164; 705.7 (Forms).

IV. The fifth special defense sets up a defense that the plaintiff did not exercise due diligence and due care to collect the note.

The motion to strike this defense is granted because these defenses are not defenses to an unconditional guarantee on note. See Wallace Barnes v. Zachs, 117 Conn. 285 (1933).

V. The sixth special defense alleges lack of consideration on behalf of the defendants in the execution guaranty on the note.

The motion to strike this special defense is denied because it is evidential in nature and if proven could constitute a defense. Superior Wire Products, Ltd. v. Talcott Tool Mach. Inc., 184 Conn. 10, 20 (1981).

VI. The seventh special defense alleges a lack of reasonable basis by the plaintiff to believe that the prospect of payment has been impaired and thus acceleration is improper.

The motion to strike this special defense is denied, as it is an appropriate statutory defense. See General Statutes 42a-1-208. Although the statute is not pleaded, the defense as pleaded is permissible because is complys with the applicable Practice Book form. See Practice Book 3-5.35 (Forms).

For the above reasons, the motion to strike the first and fifth special defenses is granted. The motion to strike the second, third, sixth and seventh special defenses is denied.

FREED, J.