Sheehan v. M E Ford Sales, Inc., No. Cv95-0247541s (Jun. 6, 1995)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]MEMORANDUM OF DECISION RE MOTION TO STRIKE SPECIAL DEFENSE The plaintiff has moved that the court strike the defendant's first special defense, which recites that "at all relevant times, the defendant has been under the protection of Chapter 11 of . . . the Bankruptcy Code." The plaintiff has asserted two alternative grounds for striking this special defense. The first is that the confirmation of a Chapter 11 plan does not discharge the debtor from debts arising after the date of confirmation. The second is that any debt for money is not dischargeable to the extent that it was obtained by false pretenses, for false representation or fraud.

As to the first ground, it is based on an assumption, not CT Page 6906 borne out by any of the pleadings, that a bankruptcy pleading was confirmed before plaintiff's cause of action accrued. Whether this is in fact the case cannot be determined from the pleadings as they currently stand. Absent any allegation in the pleadings to the contrary, the special defense that claims that the defendant has been under the protection of the Bankruptcy Code at all relevant times does state a claim upon which relief can be granted, and the motion to strike should be denied.

The second basis for the motion to strike is the fact that plaintiff's count five alleges fraud and that the Bankruptcy Code does not provide protection or debt obtained by fraud. This assertion is accurate as far as it goes, but it does not go far enough to warrant striking. The mere fact that fraud has been alleged should not prevent the defendant from raising the defense. The trier of fact can be instructed that to the extent that the plaintiff establishes its burden on the fraud count, the defense is inapplicable.

For all these reasons, the motion to strike special defense is denied.

Jonathan E. Silbert, Judge