DocketNumber: No. CV93 30 96 24 S
Citation Numbers: 1995 Conn. Super. Ct. 6940
Judges: MAIOCCO, JUDGE.
Filed Date: 6/13/1995
Status: Non-Precedential
Modified Date: 4/18/2021
Centerbank also moves to strike the case from the jury docket because mortgage foreclosure actions are equitable in nature and do not give rise to a jury trial.
The plaintiff, Centerbank, filed a one count complaint in this foreclosure action on December 7, 1993. Centerbank alleges in its complaint that on December 12, 1989, the defendants Thomas McLaughlin and Edward Laflamme, managing partners of Putnam Square Associates, a Connecticut general partnership, executed a promissory note on behalf of Putnam Square Associates in favor of CT Page 6941 Connecticut Savings Bank (CSB). The complaint alleges that the note was secured by a mortgage given to CSB on certain parcels of land situated in the city of Bridgeport. The mortgage was executed by McLaughlin and Laflamme as Putnam Square Associates' managing partners.
Centerbank alleges that on or about November 14, 1991, CSB was declared insolvent, and the Federal Deposit Insurance Corporation, (F.D.I.C.), was appointed receiver. According to its complaint, Centerbank acquired all of CSB's rights, title and interests in those of CSB's assets that are the subject of this action. Centerbank further alleges that Putnam Square Associates defaulted in its obligations under the note thus bringing about this foreclosure action.
On June 28, 1994, this case was claimed for the jury list. On November 21, 1994, the defendants, Putnam Square Associates, Joseph Gall, Joseph Gall, trustee, Thomas McLaughlin, Thomas McLaughlin, trustee, Unified Development Corp. XVI, and Employee Staffing of America, Inc., filed their revised answer, defenses and counterclaim. On Dec. 6, 1994, Centerbank filed a motion to strike all five of the defendants' special defenses and both counts of the counter claim. Centerbank filed a memorandum in support of its motion on the same date. The defendants have not filed a memorandum in opposition to Centerbank's motion.1
On January 23, 1995, the defendants filed a withdrawal of the first, second and third special defenses and both counts of the counterclaim. Therefore, the court is left to consider Centerbank's motion to strike the fourth and fifth special defenses and the motion to strike the claim from the jury docket.
"Whenever 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 or part thereof." Bouchard v.Peoples's Bank
The defendants allege in their fourth special defense that as part of the consideration for which the defendants bargained, CSB made a false oral representation that it would convert the "construction mortgage" to "permanent financing." The defendants allege that because CSB did not honor its agreement to convert the mortgage to permanent financing, the note and mortgage are void for lack of consideration. The defendants allege in their fifth special defense that the same false oral representation makes the note and mortgage void for fraud.
In its motion to strike the fourth and fifth special defenses, Centerbank argues that the common law D'Oench Duhme doctrine and its statutory counterpart,
As a second ground for its motion to strike the fourth and fifth special defenses, Centerbank argues that the federal holder in due course doctrine bars assertion of those defenses. Since the D'Oench Duhme doctrine warrants striking the fourth and fifth special defenses, the court will not address the applicability of federal holder in due course doctrine to those defenses.
In D'Oench, Duhme Co. Inc. v. Federal Deposit InsuranceCorporation,
The term "agreement" as used in § 1823(e) "covers more than promises to perform acts in the future"; it also applies to an "unwritten and unrecorded condition', upon the repayment of a note.Langley v. Federal Deposit Insurance Corp.,
The D'Oench Duhme doctrine and § 1823(e) have been held to bar the defenses of failure of consideration; D'Oench, Duhme Co. Inc.v. Federal Deposit Insurance Corp.,
CSB's alleged agreement to provide permanent financing to the defendants is an agreement pursuant to § 1823(e) as it created a condition upon which the defendants claim their performance under the note and mortgage depended. Further, the defendants have failed to allege in their third and fourth special defenses all of the four requirements of § 1823(e). Accordingly, Centerbank's motion to strike the fourth and fifth special defenses, alleging failure of consideration and fraud in the inducement respectively, is granted. CT Page 6944
Centerbank has also moved to strike the present case from the jury docket on the ground that mortgage foreclosure actions are equitable in nature and do not give rise to the right to a jury trial.
"A motion to strike is the proper vehicle for striking a case from the jury docket." Continental Bank v. Willard Square,
Hence, since Centerbank's claim is a mortgage foreclosure action and is equitable in nature, the defendants have no right to a jury trial. Accordingly, Centerbank's motion to strike the present case from the jury docket is granted.
MAIOCCO, JUDGE