Babin Associates, LLC v. Crossin, No. Cv99 036 34 78s (Oct. 26, 1999)

Connecticut Superior Court

Babin Associates, LLC v. Crossin, No. Cv99 036 34 78s (Oct. 26, 1999)

1999 Conn. Super. Ct. 14128

Connecticut Superior Court·Decided October 26, 1999·No. No. CV99 036 34 78S·Unpublished

Opinion

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]

RULING ON MOTION TO STRIKE The motion is granted as to all special defenses for the following reasons:

First and Fourth Special Defenses

The defenses of lack of consideration and laches cannot be asserted merely by using labels. A nominate defense without issuable facts to support it is legally insufficient and is subject to a motion to strike. Cavallo v. Derby Savings Bank,188 Conn. 281, 285 (1982).

Second Special Defense

While absence of written notice of default may be a necessary condition precedent to an action for foreclosure and may properly form the basis of a special defense, it becomes so only because of the express provisions of the mortgage documents. This special defense contains no such allegation. CityCorp Mortgage Inc. v.CT Page 14129Porto, 41 Conn. App. 598, 603 (1936).

Third Special Defense

Neither the traditional special defenses to a foreclosure action which were recognized at common law, i.e. those attack the making validity or enforcement of the note and mortgage, or the so called equitable defenses e.g., CUTPA, laches, embrace the act of utilizing an incorrect variable rate index. SouthbridgeAssociates LLC v. Garafalo, 53 Conn. App. 11, (1999).

THE COURT,

Mottolese, Judge

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[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]

RULING ON MOTION TO STRIKE The motion is granted as to all special defenses for the following reasons:

First and Fourth Special Defenses

The defenses of lack of consideration and laches cannot be asserted merely by using labels. A nominate defense without issuable facts to support it is legally insufficient and is subject to a motion to strike. Cavallo v. Derby Savings Bank,188 Conn. 281, 285 (1982).

Second Special Defense

While absence of written notice of default may be a necessary condition precedent to an action for foreclosure and may properly form the basis of a special defense, it becomes so only because of the express provisions of the mortgage documents. This special defense contains no such allegation. CityCorp Mortgage Inc. v.CT Page 14129Porto, 41 Conn. App. 598, 603 (1936).

Third Special Defense

Neither the traditional special defenses to a foreclosure action which were recognized at common law, i.e. those attack the making validity or enforcement of the note and mortgage, or the so called equitable defenses e.g., CUTPA, laches, embrace the act of utilizing an incorrect variable rate index. SouthbridgeAssociates LLC v. Garafalo, 53 Conn. App. 11, (1999).

THE COURT,

Mottolese, Judge

Babin Associates, LLC v. Crossin, No. Cv99 036 34 78s (Oct. 26, 1999), 1999 Conn. Super. Ct. 14128 (Colo. Ct. App. 1999).

Pincite

1999 Conn. Super. Ct. 14128 (Babin Associates, LLC v. Crossin, No. Cv99 036 34 78s (Oct. 26, 1999)) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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