Fleet Bank v. Garon, No. Cv 91 46931 S (Feb. 5, 1993)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM RE: MOTION TO STRIKE The plaintiff argues that in its special defense and counterclaim, the defendant Dade does not challenge the CT Page 1406 existence of the promise to pay and the breach of that promise by defendants Thomas and Florence Garon. The plaintiff asserts that Dade's special defense is not a recognized defense to a foreclosure action. The plaintiff also claims that because Dade's claims have no connection with the making, validity or enforcement of the mortgage, those claims are not properly raised as a special defense, and further are not properly pled as a counterclaim because they do not arise out of the same transaction as is required by Practice Book Section 116.

It is noted that Dade's special defense is devoid of any allegation that the plaintiff because of its alleged dilatory actions, is not entitled to foreclose. There also is no allegation that the debt should be reduced in any way due to the plaintiff's actions.

In short, defendant Dade, has not pled facts which show that the plaintiff should be denied foreclosure. Practice Book Section 164; Commissioner of Environmental Protection v. National Car Corp., 1 Conn. L. Rptr. 272 (February 9, 1990, Corrigan, J.). Motion to strike is granted.

The defendant's counterclaim does not arise out of the same transaction and rather then promoting judicial economy it would result in unnecessarily complicating a simple case. The motion to strike is therefore granted.

BY THE COURT,

William M. Shaughnessy Judge, Superior Court