596 A.2d 31 | Conn. Super. Ct. | 1991
In this foreclosure action, the plaintiff mortgagee's motion to strike the defendants' special defense raises the following question of first impression: whether the tender by the defendant mortgagors to the plaintiff of a deed to the property being foreclosed, which was refused by the plaintiff, states a valid defense to the plaintiff's action to recover interest, costs and attorney's fees accruing after the tender.
This action was started by the service of a writ and complaint on the defendants on June 20, 1990. The complaint alleges that on July 29, 1988, the defendants Winfried and Patricia Platz executed a demand note promising to pay to the order of the plaintiff Bank of *588 Boston Connecticut $186,000 with interest at the annual rate of 11.5 percent, and if payment was not made on demand, court costs and attorney's fees incurred in suing to collect the debt. The complaint alleges a mortgage from the defendant Winfried Platz to the plaintiff in the face amount of $80,000, a protective covenant and certain easements, all prior in right to the plaintiff's mortgage. No mortgages or liens on the property are alleged to be subsequent in right to the plaintiff's mortgage. The complaint further alleges a default in payment of monthly interest by the defendants, a demand for payment of the principal and unpaid interest of the note by the plaintiff and a failure of the defendants to pay the same. The plaintiff and the defendants Platz are the only parties to this action.
The first count of the complaint states a claim for foreclosure of the mortgage. The second count states a claim for payment of the note. In the ad damnum clause, the plaintiff seeks a foreclosure, possession of the premises, a deficiency judgment, money damages, interest, attorney's fees and court costs.
The defendants' answer admits all allegations of the first and second counts of the plaintiff's complaint and asserts three special defenses. The first special defense alleges: that on August 16, 1990 (while this action was pending) the defendants tendered to the plaintiff a quitclaim deed to the subject property, intending it to be in reduction of their debt; that the fair market value of the property then exceeded the total of all prior liens and mortgages and of the unpaid balance of principal and accrued interest on the plaintiff's note and mortgage; that the plaintiff rejected the tender and returned the quitclaim deed to the defendants on August 17, 1990; and that, by rejecting the tender "as a matter of law the plaintiff is not entitled to a judgment against the defendants for any interest . . . accruing after *589 August 16, 1990, nor is the plaintiff entitled to a judgment against the defendants for any attorneys' fees or costs of suit incurred by the plaintiff in this action after August 16, 1990."
The second and third special defenses are asserted if the plaintiff seeks a deficiency judgment. The second special defense alleges that the plaintiff is estopped by its refusal to accept tender of the defendants' quitclaim deed. The third special defense alleges that the plaintiff is estopped by its failure to notify the defendants of a decrease in the loan to value ratio, as required by the note.
The plaintiff moves to strike the first special defense as legally insufficient because the defendants' offer of the deed to the mortgaged premises is not tender of full payment of the underlying note.
General Statutes §
The general rule is that both payment of and tender of payment of the debt must be in money, unless the parties agree otherwise, or the obligee consents to accept some other medium of payment. 60 Am. Jur. 2d, Payment § 32. In Mayron's Bake Shops, Inc. v.Arrow Stores, Inc.,
This rule applies to mortgage debts. "A debtor has no right to deed the property securing a debt to the creditor in settlement of the debt where the contract provides for payment in money." 60 Am. Jur.2d 911-12, Payment § 51; Schmahl v. A.V.C. Enterprises,Inc.,
In the present case, the note provides: "On demand, I promise to pay you or your order the principal amount of $186,000." This expresses the defendants' promise to pay in dollars. The note provides for no other medium of payment.
The defendants concede this and concede further that payment in money is required unless the parties agree to a different manner of payment. The defendants, however, contend that by declaring the note in default and by bringing this action to obtain title to and possession of the real property, the plaintiff has implicitly consented to receiving title to the property in payment of the note. Similarly, by asking for a deficiency judgment pursuant to General Statutes §
The discharge the defendants seek is required under §
Moreover, the offer of the deed is not tender of full payment because of potential questions of the validity of title conveyed by the deed. The deed may later be attacked on the ground that it was not given for adequate consideration. Cohn v. Bridgeport Plumbing SupplyCo.,
The defendants, however, are not without a remedy. If they wish to stop the running of interest and to reduce attorney's fees, they can stipulate to a judgment of foreclosure. Tender of a deed of the property during pendency of the action does not, however, achieve these purposes. The plaintiff's motion to strike the defendants' first special defense is granted.
The plaintiff moves to strike the defendants' second and third special defenses as legally insufficient on the grounds that they "are not yet ripe," and that they are applicable only if the plaintiff seeks a deficiency judgment, pursuant to §
Since the rule is that a court should decide a motion to strike only on grounds raised by the movant; Blancato
v. Feldspar Corporation,
The plaintiff's motion to strike the defendants' first special defense is granted. The plaintiff's motion to strike the defendants' second and third special defenses is denied.