Superior Court of Connecticut, Judicial District of Hartford, Hartford
Bank of America, N.A.
MEMORANDUM OF DECISION RE MOTION TO STRIKE COUNTERCLAIMS (#124)
David M. Sheridan, J.
The plaintiff/counterclaim-defendant Bank of America, N.A. has moved to strike all counts of the April 8, 2014 counterclaim of the defendant, Christine Criscitelli on several grounds: 1) that the causes of action set forth in the counterclaim do not arise out of the " making, validity or enforcement" of the mortgage, and hence are not properly pled in a foreclosure action; 2) that the causes of action set forth in the counterclaim are barred by the statute of frauds because the claims asserted are based on a loan modification agreement that is not a signed writing; and 3) that certain counts of the counterclaim do not state a legally sufficient cause of action or are barred by the statute of limitations.
I. STANDARD OF REVIEW
A. Standard of Review--Motion to Strike Counterclaim
Generally, counterclaims are limited in foreclosures. The traditional test to be applied is whether the counterclaim relates to the underlying transaction. Practice Book § 10-10 specifically provides that a defendant may file a counterclaim against a plaintiff provided that " each such counterclaim . . . arises out of the transaction or one of the transactions which is the subject of the plaintiff's complaint." It is well established that in Connecticut, defenses and counterclaims in a foreclosure action must relate to the making, validity, or enforcement of the mortgage and note. Southbridge Associates, LLC v. Garofalo, 53 Conn.App. 11, 15, 728 A.2d 1114, cert. denied, 249 Conn. 919, 733 A.2d 229 (1999).
The purpose of permitting counterclaims related to the underlying transaction is " judicial economy, avoidance of multiplicity of litigation, and avoidance of piecemeal disposition of what is essentially one action . . ." Wallingford v. Glen Valley Associates, Inc., 190 Conn. 158, 161, 459 A.2d 525 (1983). In making such a determination, a court must consider whether a substantial duplication of effort would result if each claim was tried separately. Id.
B. Standard of Review--Motion to Strike--Legal Sufficiency
" [A] counterclaim is a cause of action existing in favor of the defendant against the plaintiff and on which the defendant might have secured affirmative relief had he sued the plaintiff in a separate action . . . A motion to strike tests the legal sufficiency of a cause of action and may properly be used to challenge the sufficiency of a counterclaim." (Citations omitted; internal quotation marks omitted.) Fairfield Lease Corp. v. Romano's Auto Service, 4 Conn.App. 495, 496, 495 A.2d 286 (1985).
The role of the trial court in ruling on a motion to strike is to examine the pleading, construed in favor of the pleading party, to determine whether it states a legally sufficient cause of action. Coe v. Board of Education, 301 Conn. 112, 116-17, 19 A.3d 640 (2011). " Under modern rules of pleading . . . pleadings should be read broadly and realistically, rather than narrowly and technically . . . That does not mean, however, that the trial court is obligated to read into pleadings factual allegations that simply are not there or to substitute a cognizable legal theory that the facts, as pleaded, might conceivably support for the noncognizable theory that was actually pleaded." (Citation omitted; internal quotation marks omitted.) Pane v. Danbury, 267 Conn. 669, 677, 841 A.2d 684 (2004). " [T]he burden [is] upon the pleaders to make such averments that the material facts should appear with reasonable certainty essential allegations may not be supplied by conjecture or remote implication." (Citation omitted; internal quotation marks omitted.) Cahill v. Board of Education, 198 Conn. 229, 236, 502 A.2d 410 (1985).
" [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Citation omitted; internal quotation marks omitted). Id., 252. Nevertheless, " [a] motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Citation omitted; internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 498 .
A. Statute of Frauds
The plaintiffs have moved to strike Counts One through Ten of the Counterclaim as legally insufficient because the modification agreement which is the basis for the claims does not comply with the statute of frauds, Connecticut General Statutes § 52-550(a)(4). That section states, " [n]o civil action may be maintained in the following cases unless the agreement, or a memorandum of the agreement, is made in writing and signed by the party, or the agent of the party, to be charged: . . . (4) upon any agreement for the sale of real property or any interest in or concerning real property."
" The statute of frauds is permitted to be raised by a motion to strike only when the alleged agreement falls squarely within those categories of agreements required to be in writing." (Citation omitted; internal quotation marks omitted.) Carabetta Construction v. Martinez, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 05 ...