2006 Ct. Sup. 20954
No. 4002637Connecticut Superior Court, Judicial District of New London at New London
November 13, 2006
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
JAMES J. DEVINE, J.
FACTS
On March 23, 2005, Ameriquest Mortgage Company filed a single-count complaint against the defendants, Jerome Sievers and Cheryl Sievers, for foreclosure of a mortgage on property known as 36 Beechwood Road in Montville. On April 15, 2005, pursuant to Practice Book § 9-20, Deutsche Bank National Trust Company was substituted as plaintiff.
On May 9, 2005, the defendants filed an answer and special defenses. The defendants claim as special defenses that they rescinded the loan pursuant to the federal Truth In Lending Act (TILA), 15 U.S.C. § 1635, Regulation Z; that the loan was void for consumer fraud under the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes §42-110a et seq.; and that the loan was void for the mortgagee’s unclean hands. The plaintiff filed a reply on November 2, 2005, denying the special defenses.
The plaintiff filed a motion for summary judgment on July 25, 2006, as to the defendants’ special defenses.[1] As ground for its motion, the plaintiff states that the special defenses are not valid in a foreclosure action because they do not relate to the making, validity or enforcement of the note. The defendants filed an objection to the motion for summary judgment and a supporting memorandum of law on August 4, 2006.[2] This court denied the plaintiff’s motion for summary judgment on September 7, 2006, pursuant to Practice Book § 10-7 and Daley v. Gaitor, 16 Conn.App. 379, 547 A.2d 1375, cert. denied, 209 Conn. 824, 552 A.2d 430 (1988).
On September 26, 2006, the plaintiff filed a motion to vacate the court’s order and to reargue the motion for summary judgment. The court granted the plaintiff’s motion over the defendants’ objection on October 10, 2006. The defendants subsequently filed a reply memorandum in further support of their objection to plaintiff’s motion for summary CT Page 20955 judgment. The plaintiff filed a certificate of closed pleadings on October 23, 2006. The court heard oral argument on the plaintiff’s motion for summary judgment at short calendar on October 23, 2006.
DISCUSSION
“Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).
In its supporting memorandum of law, the plaintiff argues that the defendants’ special defenses are insufficient because they do not relate to the making, validity or enforcement of the mortgage, the note, or both. The plaintiff claims that giving the defendants an opportunity to replead the special defenses will not save any of them. Accordingly, the plaintiff argues it is entitled to summary judgment as a matter of law as to the defendants’ special defenses.
The defendants argue that a motion for summary judgment is not the proper method for challenging the legal sufficiency of special defenses. The defendants further argue that if the court does consider the merits of the motion for summary judgment, the special defenses are valid defenses to a foreclosure action.
The Supreme Court has permitted a defendant to use a motion for summary judgment to challenge the legal sufficiency of a complaint. “If it is clear on the face of the complaint that it is legally insufficient and that an opportunity to amend it would not help the plaintiff, we can perceive no reason why the defendant should be prohibited from claiming that he is entitled to judgment as a matter of law and from invoicing the only available procedure for raising such a claim after the pleadings are closed.” Larobina v. McDonald, 274 Conn. 394, 401-02, 876 A.2d 522 (2005). “We also have recognized, however, that the use of a motion for summary judgment instead of a motion to strike may be unfair to the nonmoving party because [t]he granting of a defendant’s motion for summary judgment puts the plaintiff out of court . . . [while the] granting of a motion to strike allows the plaintiff to replead his or her case.” (Citation omitted; internal quotation marks omitted.)Id., 401. The use of a motion for summary judgment to challenge a complaint is appropriate only when it is clear to the trial court that the complaint is legally insufficient on its face and that an opportunity to amend it would not help the plaintiff. Id.
CT Page 20956 No court has extended Larobina to allow a plaintiff to use a motion for summary judgment to challenge a defendant’s special defenses. In fact, “[a]lthough there is no Connecticut appellate authority, [t]he decisions of the Connecticut Superior Court are almost in unanimous agreement that a 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 Lehman Bros. Bank, FSB v. Bridges, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 04 0200206 (August 14, 2006, Jennings, J.) (41 Conn. L. Rptr. 821).
A plaintiff must file a motion to strike before filing a reply to the defendants’ special defenses. Practice Book § 10-6. Filing a reply waives the plaintiff’s right to challenge the legal sufficiency of the defendants’ special defenses. Practice Book § 10-7; Daley v. Gaitor, supra, 16 Conn.App. 389, 547 A.2d 1375, cert. denied, 209 Conn. 824, 552 A.2d 430 (1988).
In the present case, the plaintiff filed a reply to the defendants’ special defenses on November 2, 2005. Eight months later, on July 25, 2006, the plaintiff challenged the special defenses by filing the present motion for summary judgment. The court concludes that the plaintiff waived its right to challenge the special defenses by filing a reply. Allowing the plaintiff to challenge the special defenses at this time would result in prejudice to the defendants by denying them an opportunity to replead.
ORDER
For the reasons stated above, the motion for summary judgment is hereby denied.
CT Page 20958