DocketNumber: No. 31 13 05
Citation Numbers: 1993 Conn. Super. Ct. 3960
Judges: MORAGHAN, JUDGE
Filed Date: 4/23/1993
Status: Non-Precedential
Modified Date: 4/18/2021
In addition to the above defendants, in the fourth and fifth counts of the complaint, the Bank alleges that the defendants, Dennis Currier and Leonard Abramowitz, each owed the Bank the sum of $25,000.00, as evidenced by two demand notes, payable to the Bank or order. Pursuant to the terms of the notes, the $25,000.00 was due in the event Hillside defaulted on the underlying building loan agreement. Therefore, since Hillside was in default of the loan agreement, the Bank demanded payment of the notes.
On February 22, 1993, the Bank filed a request for leave to amend the complaint, adding five counts that seek to reform "the loan documents of June 10, 1992 to reflect the real agreement of the parties to include a $65,000 principal CT Page 3961 paydown on the land out of the construction loan notes and funds for each of the two lots 2 and 12, for a total paydown of $130,000," which Hillside now claimed was not included as part of the loan documents.
Any defect, mistake or informality in the writ, complaint or petition may be amended and a plaintiff may insert new counts in the complaint during the first thirty days after the return date. Practice Book, Sec. 175; General Statutes, Sec.
Factors to be considered in passing on a motion to amend are the length of delay, fairness to the opposing parties and the negligence, if any, of the party offering the amendment. . . . The motion to amend is addressed to the trial court's discretion which may be exercised to restrain the amendment of pleadings so far as necessary to prevent unreasonable delay of the trial. . . . It is within the discretion of the trial court to grant or deny an amendment, and a decision to deny an amendment during trial will not be disturbed unless there is a clear abuse of that discretion.
(Emphasis added.) Lo Sacco v. Young,
Interestingly enough, the Bank does not cite any authority for including a reformation count in a foreclosure action. However,
[m]ost commonly, reformation is needed in connection with an incorrect property description. That is, the mortgage deed contains a description that deviates from the actual interest thought by CT Page 3962 the parties to be subject to the mortgage. If the discrepancy is discovered prior to the commencement of a foreclosure, it is a simple matter to add a second count to the complaint, seeking a reformation of the mortgage sought to be foreclosed in the first count. Judgment for reformation can enter immediately prior to the judgment of foreclosure, with the latter judgment properly containing the description as reformed.
D. Caron, Connecticut Foreclosures, Sec. 4.13 (1989).
The Bank in this situation does not seek to reform the mortgage deed to accurately reflect the description of the property, but seeks to reform the entire written agreement between the parties. This is not a simple matter of adding a second count, but is a matter of adding complex and confusing allegations that will require extensive discovery, responsive pleading, and litigation, resulting in delay, as well as causing the parties to incur additional expenses.
The court must and does recognize that "[t]he appropriateness of joining a foreclosure action with another type of relief was established in Norwalk Shores Realty Co. v. Clark,
The motion for permission to amend the complaint is, accordingly, denied.
Moraghan, J. CT Page 3962-A