DocketNumber: No. CV98-0490011S
Citation Numbers: 2000 Conn. Super. Ct. 10870
Judges: KOCAY, JUDGE.
Filed Date: 9/1/2000
Status: Non-Precedential
Modified Date: 7/5/2016
On August 28, 1998, Pinnfund filed a complaint against the defendant, Sheryll Stinson, to foreclose the mortgage on property located at 104 Berkeley Street, New Britain, Connecticut, of which the defendant is in possession and is the record owner. The defendant, then pro se, filed an appearance and answer on September 9, 1998. On October 2, 1998, Aames filed a motion to substitute the plaintiff attaching a copy of the assignment of the mortgage to it from Pinnfund dated September 24, 1998. This motion for substitution was never acted upon by the court.
After obtaining counsel, the defendant filed an amended answer, special defenses and counterclaims on November 4, 1998. Aames filed its reply to the defendant's special defenses and answer to the counterclaims on November 25, 1998. On April 27, 1999, Aames filed a request to amend its complaint, reflecting the change of plaintiff from Pinnfund to Aames, that was granted on June 7, 1999 by the court, Shortall, J. To this, the defendant filed an answer with special defenses and counterclaims on June 29, 1999. Thereafter, on November 23, 1999, Aames filed a motion to strike the defendant's special defenses and counterclaims (#128). The defendant filed a timely objection on December 6, 1999, to which Aames filed a reply on December 7, 1999. While the motion to strike was pending, Aames filed an amended motion to substitute the plaintiff on February 1, 2000, which was granted by the court, Shortall, J., on February 14, 2000.1
On March 27, 2000, the court heard oral argument on the instant motion to strike. Both parties filed supplemental briefs as requested at oral argument.2 This court now issues its decision.
Aames argues that the motion to strike the defendant's special defenses and counterclaims should be granted on the basis that Pinnfund is no longer a party of interest to the action because Aames is the substituted plaintiff. In opposition, the defendant argues that the motion to strike is untimely filed, procedurally deficient and also substantively deficient because Aames mistakes applicable principles of law.
A. PROCEDURAL GROUNDS
The Practice Book specifies that a motion to strike must be filed prior to the filing of a plaintiff's reply to any special defenses or an answer to counterclaims; see §
Aames' motion to strike fails upon procedural grounds because filing CT Page 10873 the motion on November 23, 1999, fails to comply with the time prescribed by §
B. SUBSTANTIVE GROUNDS
The motion to strike is also denied on the merits. In its motion to strike, Aames argues that the defendant's special defenses and counterclaims do not address the actions of Aames. but rather those of Pinnfund. Aames argues that because is it the substituted plaintiff, Pinnfund is no longer a party of interest in this case and, therefore, the defendant's special defenses and counterclaims should be stricken. In opposition, the defendant argues that she obtained jurisdiction over Pinnfund by filing her counterclaim against Pinnfund on April 23, 1999, while Pinnfund was the party plaintiff and before any motion to substitute parties had been acted upon. The defendant also argues that her special defenses are directed towards the assignee Aames because an assignee of a mortgage takes the instrument with all of the rights and liabilities of the assignor.
A motion to substitute the party plaintiff must adequately describe the reasons necessitating the substitution. See Practice Book §
The record shows that on February 14, 2000, the date the amended motion for substitution was granted, two appearances were filed. In an appearance dated February 9, 2000, attorney Geoffrey K. Milne filed as counsel for Pinnfund, USA. In the other appearance, dated February 11, 2000, the firm of Atlas and Hudon filed as counsel for Aames Capital Corporation and Pinnfund USA, seventeen months after the assignment of the note and mortgage deed, sixteen months after the first motion for substitution was filed and fifteen months after the reply to the defendant's special defenses and answer to the counterclaims was filed. It seems rather disingenuous for Aames to claim that Pinnfund is no longer a party in this action when as recently as January 18, 2000, Attorney Milne moved the court on behalf of Pinnfund for a continuance of the trial court date, which was granted by the court, Shortall, J., on January 28, 2000. It seems clear that Pinnfund by its actions still considered itself a real party in interest, as did the court, even after the filing of the original and amended motions for substitution and Aames' amended complaint naming itself as plaintiff.
Aames' motion for substitution was, however, granted during the pendency of the instant motion to strike. "[A]n amendment substituting a new plaintiff will relate back if the added plaintiff is the real party in interest. . . . An amendment to pleadings will relate back to its filing, at the very least, and back to the beginning of the action under appropriate circumstances. We see no reason why our general policy with respect to pleadings should not also apply in the context of the substitution of a plaintiff" (Citations omitted.) Federal Deposit Ins.Corp. v. Retirement Mgmt. Group, supra,
However, the general rule is that "[t]he plaintiff, as assignee of the mortgage, [stands] in the shoes of his assignor, with the same rights." (Internal quotation marks omitted.) Reynolds v. Ramos,
Moreover, Aames cannot assert any independent right to assume the special status of a holder in due course, thereby bypassing any applicable defenses, for it took the assignment with notice that the defendant was in default because Pinnfund had filed the instant foreclosure action prior to the assignment. See General Statutes §
BY THE COURT
Hon. Andre M. Kocay, J.