Affirmative Defenses

• Pages: 151-188

Affirmative Defenses

Chapter 19

151

If a response to a complaint by a motion to dismiss is no longer avail-

able or appropriate, a defendant may file an answer with affirmative

defenses. By filing an answer to the complaint, “a defendant con-

cedes that the complaint states a claim, but contends that other facts

nonetheless defeat recovery.”1The scope of successful affirmative

defenses to foreclosure has greatly increased proportionately with

current public policy. Traditionally, the only defenses to foreclosure

have been limited to payment, discharge, release or satisfaction, or

lack of a valid lien.2According to one Connecticut court:

The purpose of a special defense is to plead facts that are

consistent with the allegations of the complaint but dem-

onstrate, nonetheless, that the plaintiff has no cause of

action. A valid special defense at law to a foreclosure pro-

ceeding must be legally sufficient and address the mak-

ing, validity or enforcement of the mortgage, the note or

both. Where the plaintiff’s conduct is inequitable, a court

1. Flasza v. TNT Holland Motor Express, 155 F.R.D. 612, 613 (N.D. Ill.

1994).

2. Household Realty Corp. v. Kujawski, No. CV-08-5004992S (Conn.

Super. Ct., Sept. 3, 2010).

152 CHAPTER 19

may withhold foreclosure on equitable considerations and

principles. Connecticut’s courts have permitted several

equitable defenses to a foreclosure action. If the mortgagor

is prevented by accident, mistake or fraud, from fulfilling

a condition of the mortgage, foreclosure cannot be had.

Other equitable defenses that have been recognized in fore-

closure actions include unconscionability, abandonment

of security, and usury.3

Affirmative defenses, or special defenses as referred to by Con-

necticut courts, can prevent a bank from obtaining summary judg-

ment if they are “legally sufficient and address the making, validity

or enforcement of the mortgage, the note or both,” not general and

boilerplate as demonstrated by so many current foreclosure defense

forms.4One reason that affirmative defenses should be limited to

the making,validity,and/or enforcement of the mortgage and/or

note is that other issues may not have any connection “with the

subject matter of the foreclosure action and as such do not arise out

of the same transaction as the foreclosure action,” and similarly, an

affirmative defense “cannot attack some act or procedure of the

lienholder.”5

As a foreclosure case is an equitable proceeding, courts per-

mit defenses of unconscionability, abandonment of security, usury,

equitable estoppel, violations of unfair and deceptive trade prac-

tice statutes, laches, breach of implied covenants of good faith

and fair dealing, deed-in-lieu of foreclosure, inequitable bank re-

fusal to allow sale of property to a third party, and lack of consid-

eration.6Affirmative defenses may also properly address matters

other than the origination or enforcement of the note and mort-

gage, such as payment.7In many cases, affirmative defenses must

be made against an assignee of the original lender,as manyloans

change hands in ownership. An “assignee stands in the shoes of

3. Id.,citing to C ONN.G EN.PRAC .BOOK,R. Super.Ct. § 10-50.

4. See id.

5. Webster Bank v. Linsley, No. CV-97-0260406S(Conn. Super. Ct., Aug.

9, 2001).

6. Id.

7. Id.

Affirmative Defenses

153

the assignor and ‘succeeds to no greater rights than those pos-

sessed by the assignor.’”8Additionally, “it is a universal and

uncontroversial tenet of contract law that an assignee of a claim

takes the same subject to all defenses that could validly have been

raised by the defendant against the assignor at the time of the

assignment.”9Therefore, if a homeowner could have asserted a

defense against the original lender, he should be able to assert it

against the successor transferees of the loan.

Plaintiff ’s Motion to StrikeAffir mative Defenses

Sometimes, instead of responding to the borrower’s affirmative de-

fenses, a bank will file a motion to strike the affirmative defenses.

This is often because the foreclosure law firm has too many cases to

pay attention to individual affirmative defenses, wants to sweep them

under the carpet to make way for summary judgment, and hopes the

court will too. Sometimes such motions to strike are successful if the

defenses are overly vague and conclusory. Many courts will not grant

plaintiff’s motions to strike homeowners’ affirmative defenses be-

cause the striking of claims and defenses is an extreme sanction usu-

ally reserved as punishment for misconduct of a party. It is one thing

if a homeowner knowingly raises frivolous claims and defenses for

which sanctions are appropriate. But if the borrower raises affirma-

tive defenses for which she can provide at least a few facts that she

believes in good faith to exist, these defenses should not be subject

to the extreme sanction of being stricken.

To the extent a pleading is required only to put the opposing

party on notice, “affirmative defenses need only apprise the plain-

tiff of the nature of the defense.”10 Affirmative defenses that are

inartfully pled may still be sufficient; facts may be implied in a

defense without being expressly alleged.11 In ruling on a motion to

8. Sovereign Bank v. Gawron, 13 Pa. D. & C. 5th 71, 81 (Pa. Ct. Comm. Pl.

2010).

9. Id.,citing N. Chicago Rolling Mill Co. v. St. Louis Ore & Steel Co.,

152 U.S. 596 (1894).

10. Flasza v. TNT Holland Motor Express, 155 F.R.D. 612, 613 (N.D . Ill.

1994).

11. DGG Props. Co., Inc. v. Lanier, No. CV-00-0093788S (Conn. Super.

Ct., Sept. 13, 2002).