January 15, 2019.
from the Superior Court in the judicial district of
Middlesex,, Aurigemma, J., Domnarski, J., Frechette, J.
L. Dowd, with whom was Scott Garosshen, for the appellants
M. Bizar, for the appellee (plaintiff).
Bright, Moll and Harper, Js. MOLL, J. In this opinion the
other judges concurred.
Conn.App. 181] MOLL, J.
defendants, Leslie I. Nathan, Lynne W. Nathan, and Lynne W.
Nathan, Trustee of the Lynne W. Nathan Trust Agreement dated
November 19, 2001, appeal from the judgment of strict
foreclosure and the judgment on their counterclaim, as
amended, rendered by the trial court in favor of the
plaintiff, HSBC Bank USA, National Association,
Trustee. On appeal, the [195 Conn.App. 182]
defendants claim that the court erred in striking two of
their special defenses, as amended, and their counterclaim,
as amended. We reverse the judgments of the trial
following facts and procedural history are relevant to our
disposition of this appeal. In August, 2014, the plaintiff
commenced this foreclosure action. In its complaint, the
plaintiff alleged the following
relevant facts. On or about April 12, 2007, Leslie and Lynne
executed a promissory note, in the principal amount of
$560,000, in favor of Wells Fargo Bank, N.A. (Wells Fargo).
To secure the note, the Lynne Trustee executed a mortgage on
real property located at 115 Second Avenue in Westbrook. On
April 17, 2007, the mortgage deed was recorded on the
Westbrook land records. The mortgage was to be assigned to
the plaintiff by virtue of an assignment to be recorded on
the Westbrook land records, and the plaintiff was the holder
of the note. Leslie and Lynne thereafter defaulted on the
note, and they failed to cure the default
following receipt of written notice of the default from the
plaintiff. Thereafter, the plaintiff elected to accelerate
the balance due on [195 Conn.App. 183] the note, to declare
the note to be due in full, and to foreclose the mortgage.
June 8, 2015, the defendants filed a first amended answer,
special defenses, and counterclaim. The defendants asserted
three special defenses: (1) lack of standing; (2) laches; and
(3) unclean hands. In the counterclaim, the defendants
asserted the following twelve counts: (1) equitable reduction
of interest on the ground that the plaintiff failed to
mitigate its damages (count one); (2) the plaintiff was
improperly pursuing attorney's fees and costs accrued in
relation to a prior foreclosure action, with docket number
MMX-CV-10-6002743-S (prior foreclosure action), which the
plaintiff had commenced against the defendants in 2010 and
which was dismissed in 2013 (count two); (3) intentional
infliction of emotional distress (count three); (4) negligent
infliction of emotional distress (count four); (5) breach of
the covenant of good faith and fair dealing (count five); (6)
unjust enrichment (count six); (7) violation of the Fair Debt
Collection Practices Act, 15 U.S.C. § 1692 et seq. (count
seven); (8) violation of the Creditors' Collections
Practices Act, General Statutes § 36a-645 et seq. (count
eight); (9) vexatious litigation (count nine); (10) fraud
(count ten); (11) negligence (count eleven); and (12)
violation of the Connecticut Unfair Trade Practices Act
(CUTPA), General Statutes § 42-110a et seq. (count twelve).
As relief, the defendants sought, inter alia, compensatory
damages and an equitable reduction in principal and interest.
July 8, 2015, the plaintiff filed a motion to strike the
defendants' first amended special defenses and
counterclaim, claiming, inter alia, that the defendants'
claims and defenses did not relate to the making, validity,
or enforcement of the note or mortgage. The defendants
objected to the motion. On December 28, 2015, [195 Conn.App.
184] the trial court, Aurigemma, J., issued a
memorandum of decision granting the motion to strike as to
the first amended laches defense, unclean hands defense, and
counterclaim in its entirety.
January 12, 2016, the defendants filed a second amended
counterclaim and special defenses. In the counterclaim, the
defendants repleaded counts five, six, ten, and twelve of the
first amended counterclaim. They did not replead counts one,
two, three, four, seven, eight, nine, or eleven thereof. In
addition, the defendants reasserted their first amended