Tucker v. Pace Investment Associates, No. Cv 89 360012 S (Nov. 19, 1990)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION ON MOTION TO STRIKE (137) This is an action in which plaintiff has brought suit against defendants Pace Investments Associates, Northeast Savings, Robert Basine, Donna Galluzzo and Lorraine Whitehouse. The original complaint was in two counts. Previously the first count was dismissed and the second count based upon fraud was stricken. Plaintiff has pleaded over by amending the second count and defendants have moved to strike the substitute complaint which is the amended second count.

Plaintiff has amended the second count of his complaint by changing the title "Quiet Title and Damages — Fraud" to "Complaint for Complaint or Abuse of Process" and by incorporating a number of paragraphs of the old complaint into the substitute complaint. This appears to be defective since plaintiff is attempting to incorporate paragraphs from the first count which is no longer in the case.

Giving every benefit to the plaintiff and construing the contested pleading in the manner most favorable to him it can be discerned that plaintiff's action is based upon a claim that defendant Northeast Savings Bank, then known as Hartford Federal Savings and Loan Association, through its attorney, defendant Basine, brought certain actions to foreclose mortgages on real property owned by plaintiff. As a part of the foreclosure actions receivers were appointed. The receivers executed their duties so improperly that charges against the realty were allowed to increase reducing its net value so that strict foreclosure was granted resulting in damages to plaintiff.

Abuse of process, which plaintiff is claiming here, is the CT Page 3698 misuse of process regularly issued to accomplish an unlawful ulterior purpose. Varger v. Pareles, 137 Conn. 663, 667 (1951).

The receiver of rents is an officer of the court and holds the property as an arm of the court not the foreclosing party. Assuming for the purposes of this motion that the receivers acted improperly there is nothing in the complaint which could be construed as alleging that this improper conduct of the receivers constituted an abuse of process by any of the defendants.

The amended pleading fails to set forth a claim upon which relief can be granted.

Accordingly, the motion to strike is granted.

PURTILL, J.