Skw Real Estate Ltd. Parts. v. Pierce, No. Cv 94-053 71 34 S (Aug. 9, 1995)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]MEMORANDUM OF DECISION ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT Defendant's answer denies he is in default under the mortgage here being foreclosed upon by the plaintiff, and alleges three special defenses asserting, in essence, that plaintiff's assignor failed to provide funding under certain construction loans for residential subdivisions which failure affected defendant's ability to pay the subject mortgage.

In support of its motion for summary judgment, plaintiff submitted an affidavit and exhibits establishing that defendant had defaulted on the subject mortgage and note, that its construction loans to finance defendant's residential developments were separate and distinct from the mortgage being foreclosed upon and that, in any event, plaintiff had no obligation to continue funding the construction of the defendant's subdivision because defendant was then in default in those loans. Defendant provided no affidavit or proof in opposition, but relied solely on the special defenses in his answer. CT Page 9491

Determination of whether or not a material fact exists so as to defeat a motion for summary judgment must be based on affidavits and exhibits, not on allegations in pleadings.

Plaintiff has established its right to recover on its complaint and defendant has failed to create an issue of fact as to his special defenses.

Accordingly plaintiff's motion for summary judgment is granted on the issue of liability only.

Robert Satter State Judge Referee