DocketNumber: No. CV94 04 70 37S
Citation Numbers: 1995 Conn. Super. Ct. 6851
Judges: CURRAN, J.
Filed Date: 6/6/1995
Status: Non-Precedential
Modified Date: 4/17/2021
On September 14, 1994, defendant Barbara Nichols filed an answer and three special defenses. In her answer, Nichols admits the allegation of paragraph one of Shawmut's complaint that she was a signatory to the note assigned to Shawmut. Nichols asserts as her first special defense that "[b]y way of accord and satisfaction, and in regular payment of her obligations to Plaintiff, Defendant Nichols has offered and continues to offer to pay the same monthly payments she has always made to Plaintiff, and Plaintiff has always accepted, in satisfaction of the Note and Mortgage. Plaintiff has arbitrarily refused to continue to accept her payments."
The second special defense asserts that "[b]y way of set-off, Plaintiff holds over $17,000.00 of funds in escrow to be paid to Defendant Nichols which offset any payments which have not been accepted by Plaintiff."
Nichols asserts as a third special defense that she "is an unemployed or underemployed person and the subject property is her principal residence. She claims that she is entitled to protection from foreclosure pursuant to Connecticut General Statutes §§
On January 17, 1995, Shawmut filed a motion for summary judgment as to Nichols on the ground that there is no genuine issue as to any material fact with respect to defendant's default of CT Page 6853 payment on the note and that Shawmut is therefore entitled to judgment as a matter of law. In support of its motion, the plaintiff has filed a memorandum of law; a copy of the open-end mortgage deed executed between Shawmut and all defendants; a copy of the mortgage note; and affidavit of debt by Michael Ellis, a foreclosure counselor with Shawmut; and a copy of the title search performed on the subject property.
Practice Book § 384 provides that "The judgment sought shall be rendered forthwith if the 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." See also Haesche v. Kissner,
Generally, the defenses available in a foreclosure action are limited to payment, discharge, release, satisfaction or invalidity of a lien. Petterson v. Weinstock,
Shawmut has moved for summary judgment on the ground that it is entitled to judgment as a matter of law because there is no genuine issue as to any material fact with respect to Nichols' default on payment of the note. Furthermore, Shawmut argues in its memorandum of law in support of its motion that each of Nichols' special defenses "fail to plead facts which are consistent with the allegations of the plaintiff's complaint, but show, notwithstanding, that the plaintiff has no cause of action." In CT Page 6854 support of its motion for summary judgment, Shawmut has filed a copy of the mortgage deed and note signed by Nichols and the affidavit of Michael J. Ellis, a foreclosure counselor with Shawmut. Ellis states in his affidavit that Nichols has defaulted on the payment due on January 1, 1994, under the terms of the note and that at no time had Nichols "reached an agreement with the plaintiff with respect to altering the payment terms on this obligation, nor had the plaintiff at any time accepted an offer of an accord."
None of the special defenses asserted by Nichols are defenses generally recognized in a foreclosure action; see Petterson v.Weinstock, supra. Furthermore, given Nichols' admission as: to the making of the note and her failure to file any documents in opposition to Shawmut's motion for summary judgment, this court adopts the reasoning of the court in Lawall Realty. Because Nichols' special defenses, standing alone, fail to attack the making, validity or enforcement of the lien, Shawmut's motion for summary judgment is granted.
By The Court Curran, J.