DocketNumber: No. CV95 0050118 S
Citation Numbers: 1995 Conn. Super. Ct. 10227
Judges: FOLEY, J.
Filed Date: 9/7/1995
Status: Non-Precedential
Modified Date: 4/18/2021
The Defendants, Carl A. and Catherine L. Jackson, appeared through counsel on February 21, 1995, and filed a Disclosure of Defense with the court on March 21, 1995. On March 30, 1995, the same Defendants filed their Answer and Special Defenses, in which they assert the following: (1) that during the Defendants' attempts to "obtain relief as to their mortgage payments and for restructuring their mortgage obligation . . .", the Plaintiff made false and misleading representations to the Defendants regarding the mortgage relief and that the Defendants were mislead, (2) that Plaintiff "neglected and refused" to discuss any issues of the case with Defendant's counsel and, therefore, violated the Federal Fair Debt Collection Practices Act and the Connecticut General Statutes, and (3) that the Plaintiff's acts, as alleged in the first and second special defenses, violate the Plaintiff's "obligation to act in good faith as required by statute."
The Plaintiff filed the present Motion to Strike the Defendants' First, Second and Third Special Defenses on June 15, 1995, claiming essentially that the Special Defenses: (1) fail to comply with the requirements of Practice Book § 164, (2) are not valid defenses in a foreclosure action, and (3) do not attack the making, enforcement or validity of the note and mortgage and are, therefore, insufficient as a matter of law.
Pursuant to Practice Book § 152, "[w]henever any party wishes to contest . . . (5) the legal sufficiency of any answer to any complaint, counterclaim or cross-complaint, or any part of that answer including any special defense contained therein . . .", that party may do so by filing a motion to strike the contested pleading. In ruling on a motion to strike, the court is "limited to the facts alleged in the complaint", Gordon v. BridgeportHousing Authority,
"The purpose of a special defense is to plead facts which are CT Page 10229 consistent with the allegations of the complaint but show, notwithstanding, that the plaintiff has no cause of action."Commissioner of Environmental Protection v. National CanCorporation,
The first special defense alleges that the Defendants were mislead by false representations made by the Plaintiff in connection with their attempt to obtain relief from their mortgage payments through restructuring their mortgage obligation. The first special defense appears to assert the equitable defense of fraudulent misrepresentation, but does not properly allege the necessary elements of the claim. See Dorsey v. Mancuso,
The second special defense alleges that the Plaintiff's acts, in refusing to discuss any issues of this case with Defendants' counsel, violated the Federal Fair Debt Collection Practices Act. The Plaintiff argues that the second special defense fails to comply with Practice Book § 164, in that the facts it alleges are inconsistent with the facts alleged in Plaintiff's complaint. The second special defense must fail because it does not address the making, enforcement or validity of the note and mortgage, but rather alleges facts which took place after the commencement of the present action. Accordingly, the motion to strike the second special defense is granted.
The Defendants' third special defense asserts the equitable CT Page 10230 defense of the Plaintiff's failure to act in good faith, based on the actions alleged in the first and second special defenses. Although "the duty of good faith and fair dealing is present in every contract", Donza v. Depamphilis,
Foley, J.