DocketNumber: No. CV 97-405814 S
Citation Numbers: 1998 Conn. Super. Ct. 5777
Judges: CELOTTO, J.
Filed Date: 5/1/1998
Status: Non-Precedential
Modified Date: 4/17/2021
The one-count amended complaint alleges the following facts. CT Page 5778 By a note dated June 20, 1994, DAA promised to pay to First Union the principal sum of $250,000.00 plus interest as provided in the note. As security for the note, DAA granted a mortgage on property known as 156-158 Dixwell Avenue, New Haven, Connecticut to First Union. The mortgage was recorded on June 23, 1994. DAA has failed to make payments due under the note. First Union is the owner and holder of the note and mortgage. First Union has exercised its right to accelerate the debt and has declared the entire principal and accured interest immediately due and payable. The principal sum of $244,548.72 plus interest is now due and payable.
The amended complaint also sets forth various prior and subsequent encumbrancers, of the mortgaged property.1 One of the alleged subsequent encumbrancers is Dixwell Plaza Merchants Association (DPMA). The complaint alleges the DPMA may claim an interest in the mortgaged property "by virtue of a Notice of Common Maintenance lien in the original principal amount of $8,174.50 dated December 11, 1996 are recorded on December 19, 1996. . . . Said interest is subsequent and subordinate to [First Union's] mortgage."
DPMA has filed an answer and special defence. The answer denies that its lien on the property is subsequent to the mortgage being foreclosed. The special defense affirmatively alleges that DPMA's lien on the mortgaged property has priority over the mortgage being foreclosed by First Union.
On January 21, 1998, DPMA filed a motion for determination of priorities. On January 22, 1998, First Union filed a motion to strike DPMA's amended answer and special defense. This court heard oral argument on the pending motions on February 27, 1998.
"Whenever any party wishes to contest . . . the legal sufficiency of any answer. . . 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." Practice Book § 152, now Practice Book (1998 Rev.) §
1. The Answer
Practice Book § 160, now Practice Book (1998 Rev.) §
Paragraph twenty of the amended complaint states: "The CT Page 5780 defendant, The Dixwell Plaza Merchants Association, Inc., claims or may claim an interest in the mortgaged premises by virtue of a Notice of Common Maintenance Lien in the original principal amount of $8,174.50 dated December 11, 1996 and recorded on December 19, 1996 in Volume 5084 at Page 215 of the New Haven Land Records. Said interest is subsequent and subordinate to the Plaintiff's mortgage."2
Paragraph twenty of DPMA's amended answer states: "Denied the DPMA claims an interest in the mortgaged premises by virtue of Land Disposition Agreements by the city of New Haven Redevelopment Agency recorded at Volume 2337, page 257 and Volume 2338, page 329 of the New Haven Land records as evinced by a Notice of Common Maintenance Lien in the original amount of $8,174.50 dated December 11, 1996 and recorded on December 19, 1996 in the New Haven Land Records. Denied that said interest is subsequent and subordinate to the plaintiff's mortgage."3 DPMA's answer patently satisfies the aforementioned Practice Book requirements, and therefore, the court denies First Union's motion to strike DPMA's answer.
"These special defenses have been recognized as valid special defenses where they were legally sufficient and addressed the making, validity or enforcement of the mortgage and/or note. . . . The rationale behind this is that . . . special defenses which are not limited to the making, validity or enforcement of the note or mortgage fail to assert any connection with the subject matter of the foreclosure action and as such do not arise out of the same transaction as the foreclosure action." (Citations omitted; internal quotation marks omitted.) BerkeleyFederal Bank Trust v. Phillips, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 317957 (January 23, 1996, West, J.). See also Dime Savings Bank v. Albir, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. 132582 (February 7, 1995, D'Andrea, J.). "Courts have not been receptive to foreclosure defendants who have asserted defenses and counterclaims based on factors outside of the note or mortgage." Shoreline Bank Trust Co. v. Leninski, Superior Court, judicial district of New Haven, Docket No. 335561 (March 19, 1993, Celotto, J.).
Here, DPMA claims that its rights in the mortgaged property are prior to, and therefore superior to, the rights of First Union. DPMA does not allege that the mortgage was defectively made, is invalid or is in anyway unenforceable. Because DPMA's special defense does not attack the making, validity or enforcement of the note or mortgage, it is legally insufficient. Therefore the court grants the motion to strike the defendant's special defense.
Here, First Union seeks foreclosure by sale, not strict foreclosure. "The decree of foreclosure by sale should not adjudicate the rights of the parties to the funds realized; those rights should be determined by way of supplemental judgment."Gault v. Bacon,
Because the instant action seeks foreclosure by sale, a determination of priorities before judgment is unnecessary. Accordingly, the court denies DPMA's motion for a determination of priorities.
Donald W. Celotto Judge Trial Referee