Fleet Mortgage Corp. v. Baccash, No. Cv96 05 31 27 (Jan. 3, 1997)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]MEMORANDUM OF DECISION RE: MOTION FOR SUMMARY JUDGMENT "In a foreclosure action, defenses are generally limited to payment, discharge, release, satisfaction or invalidity of a lien." First Federal v. Kakaletris, Superior Court, judicial CT Page 74 district of Stamford/Norwalk at Stamford, Docket No. 130826 (February 23, 1994, Karazin, J., 11 Conn. L. Rptr. 113). The court in First Federal v. Kakaletris adopted the rationale that "only those equitable defenses which attack the making, validity or enforcement of a note or mortgage should be recognized in a foreclosure action." Id.

The plaintiff moves for summary judgment as to liability on the ground that there is no genuine issue of material fact regarding the defendants' failure to pay the promissory note pursuant to the terms of the note.

In opposition, the defendant contends that the plaintiff has breached the implied covenant of good faith and is estopped from foreclosing because the parties had discussed a modification of the mortgage terms. The defendant does not, however, offer any legal argument or evidence regarding a contractual duty on the part of the plaintiff to conduct loan work out discussions. SeeCenterbank v. Motor Inn Associates, Superior Court at New Haven, Docket No. 335869 (August 2, 1993, Thompson, J.,9 Conn. L. Rptr. 505) (striking the special defense of breach of good faith and fair dealing arising from plaintiff's action of instituting foreclosure action during loan workout discussions with defendant).

The defendant has failed to attack the making, validity or enforcement of the note and mortgage. Therefore, there is no material issue of fact as to the defendant's liability. Accordingly, the court grants the plaintiff's motion for summary judgment as to the defendant's liability.

THE COURT

CURRAN, J.