Swiss Bk. Corp. v. Greenwich-Am. Ltd., No. Cv96 0153735 S (Sep. 12, 1997)
Opinion of the Court
The plaintiff alleges that (i) GALP has failed to make payment of, and Swiss has accelerated, GALP's obligations which are secured by the mortgage being foreclosed in this action; (ii) the interests of all other defendant-encumbrancers are subordinate to Swiss's mortgage interest; and (iii) the value of CT Page 8356 the premises is substantially less than the mortgage debt. The plaintiff also claims that GALP's "special defenses" do not bar Swiss's right to a judgment of foreclosure.
On February 18, 1997, the plaintiff filed a motion for summary judgment pursuant to Practice Book § 378. The motion is supported by a memorandum of law and by exhibits which include: (1) the verified complaint and its exhibits; (2) Affidavit in Support of Motion for Temporary Injunction 8/27/96; (3) Defendant GALP's Notice of Compliance to Plaintiff's First Request for Admissions; and (4) Defendant GALP's Amended Answer with Special Defenses. The plaintiff moves for summary judgment on the ground that there is no genuine issue of material fact with respect to its claim for a judgment of strict foreclosure. The defendant filed an objection to the motion for summary judgment on August 25, 1997. The objection is supported by a memorandum of law, a sworn statement and exhibits which include: (1) an uncertified copy of selected excerpts from deposition.
STANDARD
"Practice Book § 384 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." (Internal quotation marks omitted.) Doty v.Mucci,
"The burden of proof is on the moving party that there is no genuine issue of material fact and the standards of summary judgment are strictly and forcefully applied." Id. "A `material' fact has been defined adequately and simply as a fact that will make a difference in the result of the case." Hammer v.Lumberman's Mutual Casualty Co.,
"A summary disposition . . . should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party." (Internal quotation marks omitted.) Miller v. United Technologies Corp.,
supra,
DISCUSSION
The plaintiff claims that the motion for judgment should be granted because the defendant, GALP, in sections 4.01 and 4.08 of the mortgage expressly agreed not to assert any defenses, counterclaims or setoffs in this foreclosure action. Therefore, the plaintiff claims that any defenses, counterclaims or setoffs that the defendant, GALP, has asserted in the present action are improper in this action and should not be considered in this motion. This court does not agree with the plaintiff that sections 4.01 and 4.08 are clear and unambiguous that the defendant, GALP has waived its right to assert any defenses, counterclaims or setoffs in this foreclosure action. The court finds that the trier of fact could reasonably agree with the defendant GALP's assertion that all these sections refer to is a CT Page 8358 promise to make payment and not a waiver of any right to assert defenses, counterclaims or setoffs in a foreclosure action. The court further finds that the language of said sections is not clear and unambiguous. Therefore, the interpretation of said sections is a genuine issue of material fact and should be resolved by the trier of fact.
The motion for summary judgment is denied.
MINTZ, J.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.