669 Atlantic Street v. Atlantic-Rockland, No. Cv90-0110249 (May 7, 1991)

1991 Conn. Super. Ct. 4075, 6 Conn. Super. Ct. 530

• Court: Connecticut Superior Court
• Decided: May 7, 1991
• Docket: No. CV90-0110249
• Status: Unpublished

Opinion

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION This action alleges that the defendant executed a promissory note and a mortgage to the plaintiff in order to secure the note, that the mortgage was not paid, and that the plaintiff seeks a foreclosure of the mortgage.

The defendant asserted several special defenses and counterclaims, and also claimed the case for trial by jury. The plaintiff now moves to strike the case from the jury docket (#109) for the reason that a foreclosure action is equitable in nature, and therefore should not be tried by a jury, General Statutes 52-215, as "present(ing) a question properly cognizable in equity . . ."

The defendant asserts that its defenses and counterclaims are legal in nature, thus entitling it to a jury trial. These defenses essentially assert breaches of an underlying lease, breaches of warranty, unjust enrichment, unfair trade practices, usury, fraudulent misrepresentations, and interference with contract.

The motion to strike from the jury docket is granted because this is a foreclosure action, and the defendant cannot by the assertion of special defenses and counterclaims containing several "legal" causes of action convert the case from its essential equitable nature to a legal cause of action. See generally Savings Bank of New London v. Santaniello, 130 Conn. 206, 211,133 A.2d 126 (1943).

Plaintiff's motion to strike from the jury docket is granted.

WILLIAM B. LEWIS, JUDGE