33 of 63 DOCUMENTS

Citicorp Mortgage v. Howard Gibson et al.

CV990152248S

SUPERIOR COURT OF CONNECTICUT, JUDICIAL DISTRICT OF

WATERBURY, AT WATERBURY

2001 Conn. Super. LEXIS 236

January 23, 2001, Decided

January 23, 2001, Filed

NOTICE:

[*1] THIS DECISION IS UNREPORTED AND MAY

BE SUBJECT TO FURTHER APPELLATE REVIEW.

COUNSEL IS CAUTIONED TO MAKE AN

INDEPENDENT DETERMINATION OF THE

STATUS OF THIS CASE.

DISPOSITION:

Plaintiff's motion for summary judgment granted.

CASE SUMMARY

PROCEDURAL POSTURE: Plaintiff moved for

summary judgment in its foreclosure action against

defendants.

OVERVIEW: Plaintiff alleged that defendants had

defaulted on their monthly installments on a mortgage.

The court found that the amended special defense of

breach of the covenant of good faith and fair dealing was

not supported by any facts alleged. An affidavit was

inadmissible to prove payment because defendants had

not specially pleaded payment as a special defense.

Further, it did not address the making, validity, or

enforcement of the mortgage.

OUTCOME: The motion for summary judgment was

granted because the amended special defense was legally

insufficient.

JUDGES:

THOMAS G. WEST, J.

OPINIONBY:

THOMAS G. WEST

OPINION:

MEMORANDUM OF DECISION

On April 14, 1999, the plaintiff, Citicorp Mortgage,

Inc., commenced the instant action against the

defendants, Howard and Mattie Gibson, seeking to

foreclose the mortgage encumbering their property,

located at 22 Mountain Laurel Drive in Waterbury. This

mortgage secures a note from defendants to plaintiff in

the original principal amount of $ 171,900. The plaintiff

alleges that the defendants have defaulted on their

monthly installments due under the note and that the

defendants owe it the principal balance of $ 120,570.91,

plus insurance premiums, interests, taxes, late charges,

advances and expenses.

On August 19, 1999, the defendants filed an answer

and special defenses. On April 28, 2000, this court

granted the plaintiff's motion to strike the defendants'

second, third and fourth special defenses. n1 Citicorp

Mortgage, Inc. v. Gibson, 2000 Conn. Super. LEXIS

1063, Superior Court, judicial district of Waterbury,

Docket [*2] No. 152248 (April 27, 2000, West, J.) (27

Conn. L. Rptr. 119). The court granted the motion to

strike as to the second and third special defenses because

they failed to relate to the making, validity or

enforcement of the note and mortgage. The court granted

the motion to strike as to the fourth special defense

because the defendants failed to allege any facts in its

support.

Page 2

2001 Conn. Super. LEXIS 236, *

n1 The defendants withdrew their first and

fifth special defenses. The second special defense

stated that "the Plaintiff misapplied payments

from the Defendants through the life of the loan

to date including disbursements to the Plaintiff

from third parties." The third special defense

stated that "the Plaintiff refused the Defendants'

payments under the mortgage which caused the

alleged default by the Defendants." The fourth

special defense stated that "the Plaintiff breached

the covenant of good faith and fair dealing with

the Defendants."

On May 12, 2000, the defendants filed an amended

answer and special defense. On May 24, 2000, the [*3]

plaintiff filed a motion for summary judgment on the

grounds that no genuine issue of material fact exists as to

the defendants' liability and that it is entitled to judgment

as a matter of law. The plaintiff attached a memorandum

of law pursuant to Practice Book § 11-10 and

documentation along with a supporting affidavit pursuant

to Practice Book § 17-46. On June 19, 2000, the

defendants filed their memorandum in opposition to the

plaintiff's motion for summary judgment, along with

documentation and a supporting affidavit of Howard

Gibson.

Practice Book § 17-49 provides that a motion for

summary judgment "shall be rendered forthwith if the

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." Miles v. Foley, 253 Conn. 381, 385, 752 A.2d

503 (2000). "[A] material fact is one which will make a

difference in the result of the case." (Internal quotation

marks omitted.) Williams v. Best Cleaners, Inc., 237

Conn. 490, 500 n.11, 677 A.2d 1356 (1996). "The party

seeking summary judgment has the burden of showing

the absence [*4] of any genuine issue [of] material facts

which, under applicable principles of substantive law,

entitle [the party] to a judgment as a matter of law ... and

the party opposing such a motion must provide an

evidentiary foundation to demonstrate the existence of a

genuine issue of material fact." (Citations omitted;

internal quotation marks omitted.) Miles v. Foley, supra,

253 Conn. 386; see also Practice Book § 17-45. The

existence of a genuine issue of material fact must be

demonstrated by counter affidavits and concrete

evidence, and not by "mere assertions of fact." Maffucci

v. Royal Park Ltd. Partnership, 243 Conn. 552, 554-55,

707 A.2d 15 (1998).

The plaintiff moves for summary judgment on the

basis that no genuine issues of material fact exist as to

the defendants' liability, that is, their default in making

the mortgage payment. In order to make out a prima

facie case in a foreclosure action, the plaintiff must

"prove by a preponderance of the evidence that it [is] the

owner of the note and mortgage and that [the defendant

has] defaulted on the note." Webster Bank v. Flanagan,

51 Conn. App. 733, 750-51, 725 A.2d 975 (1999). [*5]

"[A] foreclosure complaint must contain certain

allegations including allegations relating to the parties

and terms of the operative instruments, the nature of the

default giving rise to the right of foreclosure, the amount

currently due and owing, the name of the record owner

and of the party in possession, and appropriate prayers

for relief." (Internal quotation marks omitted.) New

England Savings Bank v. Bedford Realty Corp., 246

Conn. 594, 610, 717 A.2d 713 (1998).

The plaintiff has provided copies of the mortgage

deed and promissory note given by the plaintiff to the

defendants on May 17, 1989. The plaintiff has alleged in

both the complaint and the affidavit of Viji Iyer, the

assistant secretary of the plaintiff, submitted in support

of the motion for summary judgment, that the plaintiff is

the owner and holder of the note and mortgage and that

the defendants have defaulted on the note by virtue of

nonpayment of the installments due on May 1, 1998 and

each month thereafter. (Amended answer, PP1-2;

plaintiff's affidavit, P9.) As a result, the plaintiff has

made out its prima facie case and has shown the absence

of any genuine issues of material fact as to liability. [*6]

"Because the plaintiff has made out its prima facie

case, the motion for summary judgment will be granted

unless at least one of the special defenses is valid."

Homeside Lending, Inc. v. Haggerty, 2000 Conn. Super.

LEXIS 1400, Superior Court, judicial district of New

London at New London, Docket No. 551725 (May 19,

2000, Martin, J.). "The purpose of a special defense is to

plead facts that are consistent with the allegations of the

complaint but demonstrate, nonetheless, that the plaintiff

has no cause of action." (Internal quotation marks

omitted.) Danbury v. Dana Investment Corp., 249 Conn.

1, 17, 730 A.2d 1128 (1999); see also Practice Book §

10-50. "Only one of the defendants' defenses needs to be

valid in order to overcome the motion for summary

judgment." Union Trust Company v. Jackson, 42 Conn.

App. 413, 417, 679 A.2d 421 (1996). A special defense is

legally insufficient if it contains allegations that are

conclusory and contains no issuable facts to support it.

Chase Mortgage Company v. Infurchia, 2000 Conn.

Super. LEXIS 1024, Superior Court, judicial district of

Fairfield at Bridgeport, Docket No. 364821 (April 24,

2000, Mottolese, J.), citing Cavallo v. Derby Savings

Bank, 188 Conn. 281, 285, 449 A.2d 986 (1982). [*7]

"At common law, the only defenses to an action of

this character would have been payment, discharge,

release or satisfaction ... or, if there had been a valid

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2001 Conn. Super. LEXIS 236, *

lien." (Internal quotation marks omitted.) Southbridge

Associates, LLC v. Garofalo, 53 Conn. App. 11, 15, 728

A.2d 1114, cert. denied, 249 Conn. 919, 733 A.2d 229

(1999). "In recognition that a foreclosure action is an

equitable proceeding, courts have allowed ... breach of

the implied covenant of good faith and fair dealing ... to

be pleaded as special defenses ... 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 ..."

(Citations omitted; internal quotation marks omitted.)

Mercantile Bank v. Hurowitz, 2000 Conn. Super. LEXIS

1451, Superior Court, judicial district of New Haven at

New Haven, Docket No. 381091 (May 2, 2000, Celotto,

J.); Green Point v. Klein, 2000 Conn. Super. LEXIS 900,

Superior Court, judicial district of Danbury, Docket No.

327058 (April 11, 2000, Moraghan, J.); Ocwen Federal

Bank FSB v. Weinberg, 1999 Conn. Super. LEXIS 2204,

Superior Court, judicial district of New London at New

London, Docket No. 547629 [*8] (August 1, 1999,

Mihalakos, J.); see also Fleet National Bank v. Martin,

2000 Conn. Super. LEXIS 1450, Superior Court, judicial

district of Waterbury, Docket No. 146930 (May 1, 2000,

West, J.) ("defenses dealing with the conduct of the

lender after execution of the mortgage may not be

asserted in a foreclosure action as a defense").

The plaintiff argues that no viable special defense

exists because the amended special defense is entirely

based on the three previously stricken special defenses.

Opposing the motion for summary judgment, the

defendants argue that the court should deny the motion

because their amended special defense shows the

existence of genuine issues of material fact as to their

liability under the note and mortgage. Specifically, the

amended special defense alleges breach of the covenant

of good faith and fair dealing, supported by the following

two allegations: "the Plaintiff misapplied payments from

the Defendants throughout the life of the loan's inception

to the present date, including disbursements to the

Plaintiff from third parties. The Plaintiff also refused the

Defendants' payments prior to the declaration of default

under the mortgage which caused the alleged default

now [*9] alleged by the Plaintiff. By these acts, the

Plaintiff breached the covenant of good faith and fair

dealing with the Defendants."

"The covenant of good faith and fair dealing has

been recognized as a special defense in foreclosure

actions." Ocwen Federal Bank FSB v. Weinberg, supra,

1999 Conn. Super. LEXIS 2204, Superior Court, Docket

No. 547629. The two allegations in support of this

special defense are, however, identical to the original

second and third special defenses that have been stricken

by the court's prior decision granting the motion to strike

the original special defenses. See Citicorp Mortgage,

Inc. v. Gibson, supra, 2000 Conn. Super. LEXIS 1063, 27

Conn. L. Rptr. 120. The court struck those two special

defenses on the ground that they did not attack the

making, validity or enforcement of the note or mortgage.

Id. "Allegations of misapplied payments and failing to

accept payments all reference conduct of the plaintiff

subsequent to the note and mortgage being executed.

Where the defendant's special defenses attack the acts of

the plaintiff during the course of their relationship ...

these are improper special defenses to a foreclosure

action." (Internal quotation marks omitted.) Id., quoting

Ocwen [*10] Federal Bank FSB v. Weinberg, supra,

1999 Conn. Super. LEXIS 2204, Superior Court, Docket

No. 547629. For the same reason that the court struck the

original special defenses, the two allegations are

insufficient as a matter of law to support the amended

special defense. Therefore, the court is of the opinion

that it should grant the motion to strike because the

amended special defense asserts a mere conclusion of

law that is not supported by any facts alleged.

Novametrix Medical Systems v. BOC Group, Inc., 224

Conn. 210, 215, 618 A.2d 25 (1992).

The affidavit of the defendant Howard Gibson,

submitted in support of the defendants' opposition to the

motion, complains of the conduct of the plaintiff in

processing the mortgage payment, disputes the amount

due, and claims payment of arrearage after the

declaration of acceleration. However, this affidavit is

insufficient to show the existence of a genuine issue of

material fact for the following reasons. First, the mere

presence of the defendant's affidavit does not establish a

genuine issue of material fact. The defendants' affidavit

alleges that the defendants and their bankruptcy trustee

made payments to the plaintiff on the arrearage of

mortgage [*11] balances prior to the plaintiff declaring

default. Payment is a special defense that must be

specially pleaded pursuant to Practice Book § 10-50,

which provides in part: "Facts which are consistent with

such statements but show, notwithstanding, that the

plaintiff has no cause of action, must be specially

alleged. Thus ... payment (even though nonpayment is

alleged by the plaintiff)... must be specially pleaded."

(Emphasis added.) Absent a special pleading of payment,

"the affidavit submitted by the defendant is inadmissible

to show that the defendants have sufficiently complied

with the payment terms of the note and mortgage."

Citicorp v. Imbruce, 2000 Conn. Super. LEXIS 710,

Superior Court, judicial district of Stamford-Norwalk at

Stamford, Docket No. 730369 (March 17, 2000, Hickey,

J.). Therefore, the defendants' affidavit is inadmissible to

prove payment because the defendants have not specially

pleaded payment as a special defense. Second, even

assuming the affidavit were admissible, because the facts

submitted in the defendants' affidavit "address only the

amount of the debt, they do not demonstrate that the

Page 4

2001 Conn. Super. LEXIS 236, *

plaintiff has no cause of action, and therefore fail to

[establish a valid special [*12] defense because it] does

not address the making, validity, or enforcement of the

note or mortgage." (Internal quotation marks omitted.)

Ocwen Federal Bank, FSB v. Stawski, 2000 Conn. Super.

LEXIS 1025, Superior Court, judicial district of New

London at New London, Docket No. 552633 (April 25,

2000, Martin, J.). n2 In the absence of a pleading that

specifically alleges payment as a special defense, this

affidavit is insufficient to establish a genuine issue of

material fact.

n2 First, the defendants have not specially

pleaded the defense of payment. Practice Book §

10-50 provides in part: "Facts which are

consistent with such statements but show,

notwithstanding, that the plaintiff has no cause of

action, must be specially alleged. Thus ...

payment (even though nonpayment is alleged by

the plaintiff)... must be specially pleaded."

(Emphasis added.) Absent a special pleading of

payment, "the affidavit submitted by the

defendant is inadmissible to show that the

defendants have sufficiently complied with the

payment terms of the note and mortgage."

Citicorp v. Imbruce, 2000 Conn. Super. LEXIS

710, Superior Court, judicial district of Stamford-

Norwalk at Stamford, Docket No. 730369 (March

17, 2000, Hickey, J.).

[*13]

As indicated by the foregoing, the amended special

defense is legally insufficient because it fails to allege

facts in its support and since the plaintiff has met its

burden of showing the absence of any genuine issue of

material facts as to the defendants' liability and has

proven its entitlement to judgment as a matter of law, the

plaintiff's motion for summary judgment is granted.

THOMAS G. WEST, J.