Bank of America Illinois v. Bogardus, No. Cv97 0060598s (Oct. 14, 1998)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION The plaintiff, Bank of America Illinois, Trustee, has brought this action to foreclose a mortgage lien. The defendants filed a disclosure of defense asserting that they are not in default as a result of the plaintiff's failure to properly apply the payments that they made, and that the plaintiff's refusal to accept payment on account constitutes a violation of the implied covenant of good faith and fair dealing. Subsequently, the plaintiff filed the present motion for summary judgment.

The defendant has not yet filed a pleading in response to the complaint in this case, and the motion for summary judgment is based on the legal sufficiency of the disclosure of defense. This CT Page 11581 is, of course, improper. The legal sufficiency of a proposed defense disclosed in good faith in a disclosure of defense should not be passed on summarily. See Jennings v. Parsons,71 Conn. 413, 418 (1899); Norwich Savings Society v. Hunter, Superior Court, judicial district of New London at Norwich, Docket No. 108808 (January 26, 1996, Hendel, J.); Citicorp MortgageInc. v. Skoronski, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 543129 (July 17, 1995, Mulcahy, J.).

Motion denied.

Flynn, J.