Federal Home Loan Mortgage v. Crear, No. Cv93 30 68 48 S (Aug. 25, 1995)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]MEMORANDUM OF DECISION RE: MOTION FOR SUMMARY JUDGMENT #119 The defendant, Ruby Crear, has raised the special defense of fraud on the part of the plaintiff's assignor with respect to the making of the note. Fraud is a valid special defense to a foreclosure action. Petterson v. Weinstock, 106 Conn. 436, 442,138 A. 433 (1927). In her affidavit in opposition to the motion for summary judgment, the defendant raises issues regarding fraudulent misrepresentations and duress on the part of the plaintiff's assignor. These issues are not controverted by the plaintiff's supporting affidavits and documentary evidence.

In response, the plaintiff argues in its brief that: (1) the CT Page 9218 defendant either had knowledge of, or had the reasonable opportunity to learn of the essential terms of the note; and (2) the defendant failed to disaffirm the transaction within a reasonable period of time. The plaintiff's arguments are valid. Nevertheless, the supporting and opposing affidavits and evidence create genuine issues of material fact with respect to the merits of the special defense and the issues raised in the defendant's affidavit.

Based on the foregoing reasons, the court denies the plaintiff's motion for summary judgment.

Dated at Bridgeport, this 23rd day of August, 1995.

RICHARD J. TOBIN, JUDGE