ACCREDITED HOME LEND v. VOSSBRINCK, No. CV 08-5007144S (Oct. 29, 2010)


ACCREDITED HOME LEND v. KARL P. VOSSBRINCK ET AL.

2010 Ct. Sup. 21003
No. CV 08-5007144SConnecticut Superior Court Judicial District of Waterbury at Waterbury
October 29, 2010

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION
MATASAVAGE, J.

This is a motion for summary judgment, dated August 6, 2010, filed by the plaintiff.[1] This foreclosure matter was originally filed on December 24, 2007. The court had previously entered a judgment of strict foreclosure in September 2008. Subsequently, there have been bankruptcy filings and stays, motions to open judgment which were granted, and various other filings. Eventually, on July 1, 2010, the defendant, Karl P. Vossbrinck, filed an answer, special defense and counter claim which is the subject of the motion for summary judgment. The plaintiff has not filed any subsequent pleading in response to the special defense or counterclaim.

The plaintiff is seeking summary judgment on its complaint, the special defenses and the counterclaim. The matter was first heard on short calendar on October 18, 2010, and the parties filed subsequent memorandums and also appeared at the October 25, 2010, short calendar.

I.
In the defendant’s special defense, the defendant alleges fraud in that the plaintiff failed to comply with 12 U.S.C. 2604, et seq., (commonly known as RESPA, or the Real Estate Settlement Procedures Act), and 15 U.S.C. 1601, et seq. (commonly known as TILA, or the Truth in Lending Act).

The plaintiff correctly points out in his memorandum of law “that the defense is devoid of any factual support,” as the defendant has failed to allege sufficient facts to support his conclusory allegations that the plaintiff committed fraud and violated either TILA or RESPA. In addition, the plaintiff claims that both RESPA and TILA violations are not viable special defenses. The plaintiff claims that the defense is legally insufficient.

The court can entertain a motion for summary judgment before the CT Page 21004 pleadings are closed. However, “the decisions of the Connecticut Superior Court are almost in unanimous agreement that a [plaintiff’s] motion for summary judgment as to a special defense is improper. Such a motion is improper because Practice Book § 17-44 does not provide for summary judgment on special defenses . . . Summary judgment on a special defense is also improper because [e]ven if the special defenses were all to fail . . . the plaintiffs’ motion and supporting documents do not remove from dispute facts relevant to determining whether they are entitled to judgment as a matter of law on the complaint itself . . .” (Citation omitted; internal quotation marks omitted.) Sound Post, LLC v. New Harvest Coffee Roasters Inc., Superior Court, Housing Session at Bridgeport, Docket No. BRSP 056336 (May 6, 2005, Skolnick, J.); see also Wyatt Energy, Inc. v. Motiva Enterprises, LLC, 104 Conn.App. 685, 692 n. 7, 936 A.2d 280 (2007), cert denied, 286 Conn. 901, 943 A.2d 1103 (2008).

Since the motion for summary judgment seeks to test the legal sufficiency of the special defense, the motion is denied; as a proper motion to test the legal sufficiency of a special defense is a motion to strike, rather than a motion for summary judgment.

II.
The plaintiff also moves for summary judgment on the counterclaim claiming that the defendant’s cause of action was not brought within the applicable statute of limitations. “[A]ny party may move for summary judgment upon any counterclaim or cross complaint as if it were an independent action.” Practice Book § 17-44. “Because a counterclaim is a separate and distinct action . . . a party seeking summary judgment on both a complaint and a counterclaim must file an appropriate motion addressed to each.” (Citations omitted; internal quotation marks omitted.) Miller v. Bourgoin, 28 Conn.App. 491, 500, 613 A.2d 292, cert. denied, 223 Conn. 927, 614 A.2d 825 (1992). “Summary judgment may be granted where the claim is barred by the statute of limitations.” Doty v. Mucci, 238 Conn. 800, 806, 679 A.2d 945 (1996). Summary judgment is appropriate on statute of limitation grounds when the “material facts concerning the statute of limitations [are] not in dispute . . .”Burns v. Hartford Hospital, 192 Conn. 451, 452, 472 A.2d 1257 (1984).

In his counterclaim, the defendant, Paul Vossbrinck, claims to be the owner of 487 Berkshire Road in Southbury, and received a mortgage from the plaintiff on October 15, 2005. He further alleges that he did not CT Page 21005 receive from the plaintiff appropriate RESPA disclosures required by 12 U.S.C. 2604, et seq., and TILA disclosures required by 15 U.S.C. 1601 et seq., despite making a written request for the same on January 27, 2010. As a result of the non-disclosures by the plaintiff, the defendant claims a rescission of the note, a balance reduction and money damages.

With reference to the RESPA violations, the plaintiff cite Collins v. FMHA-USDA, 105 F.3d 1366, 1368 (11th Cir. 1997), for the proposition that there is no private civil action for a violation of RESPA. The defendant has not cited any contrary authority and counsel acknowledged at short calendar that the RESPA claim is abandoned.

The plaintiff also claims that any violation of TILA is time barred. The statutory limitation for bringing an action for damages under TILA is one year, pursuant to 15 U.S.C. 1640(e);[2] and the statutory time period for rescission under TILA is three years, 15 U.S.C. 1635(f).[3] It is undisputed that the mortgage was signed on October 15, 2005. The defendant did not claim to raise TILA issues until he sent notice to the plaintiff on January 27, 2010, more than four years later. In an action for damages, 15 U.S.C. 1640(e), provides for a one-year statute of limitation. In accordance with 15 U.S.C. 1635(f), the right to rescind expires three years after the date of consummation of the transaction or upon the sale of the property, whichever occurs first. Since the defendant did not claim damages within one year nor raise his rescission rights until long after the three-year expiration, his right of action is statutorily time barred.

Since there are no genuine issues of material fact at issue regarding whether the allegations of the counterclaim are time barred, the plaintiff’s motion for summary judgment on the counterclaim is granted.

III.
In conclusion, the motion for summary judgment on the plaintiff’s complaint is denied, as the proper motion to test the legal sufficiency of a special defense is a motion to strike, rather than a motion for summary judgment. The motion for summary judgment on the counterclaim is granted, as the right of action pled by the defendant is time barred.

[1] This foreclosure matter was originally brought by Accredited Home Lenders, Inc. On February 10, 2010, the court granted plaintiff’s motion substituting Deutsche Bank National Trust Company, as indenture trustee, on behalf of the holders of the Accredited Mortgage Loan Trust CT Page 21006 2005-4 Asset Backed Notes, as party plaintiff.
[2] 15 U.S.C. 1640(e) provides “limitations on actions . . . any action under this section may be brought in any United States district court, or in any other court of competent jurisdiction, within one year from the date of the occurrence of the violation . . .”
[3] 15 U.S.C. 1635(f) Time limit for exercise of right — An obligor’s right of rescission shall expire three years after the date of consummation of the transaction or upon the sale of the property, whichever occurs first, notwithstanding the fact that the information and forms required under this section or any other disclosures required under this part have not been delivered to the obligor, except that if (1) any agency empowered to enforce the provisions of this subchapter institutes a proceeding to enforce the provisions of this section within three years after the date of consummation of the transaction, (2) such agency finds a violation of this section, and (3) the obligor’s right to rescind is based in whole or in part on any matter involved in such proceeding, then the obligor’s right of rescission shall expire three years after the date of consummation of the transaction or upon the earlier sale of the property, or upon the expiration of one year following the conclusion of the proceeding, or any judicial review or period for judicial review thereof, whichever is later.

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