May 10, 2016
by Emily McConnell
Hunt Leibert – USFN Member (Connecticut)
Recently, the Appellate Court of Connecticut upheld the trial court’s decision denying the defendant’s motion for an award of attorney’s fees pursuant to General Statutes § 42-150bb. [Connecticut Housing Finance Authority v. Alfaro, 163 Conn. App. 587; 2016 Conn. App. LEXIS 96 (Mar. 8, 2016)].
Connecticut General Statutes allows for attorney’s fees to be awarded to a consumer who successfully defends an action based upon the contract or lease. (See § 42-150bb.) In this case, Alfaro, was one of the defendants in a foreclosure action of a mortgage on certain real property. After the case was filed, Alfaro responded with an answer including special defenses. The plaintiff then filed for a motion summary judgment, to which the defendant objected. Following that objection, the plaintiff withdrew the motion for summary judgment and thereafter withdrew the entire action.
Defendant Alfaro claimed that the withdrawal of the action was based on the defendant’s special defense that the plaintiff lacked standing to bring the action. Unfortunately for the defendant, there was no record of this being the case or any record of the reasoning behind the withdrawal of the plaintiff’s action.
While the court found that the defendant failed to prove that the case was withdrawn due to his defense, the court did not find that a defendant would be entitled to attorney’s fees if a defendant could prove that a case was withdrawn because of a defense or defenses posed. Since the defendant was not able to provide any proof that the plaintiff withdrew the case due to the merits of his defense, the court did not provide an answer on that scenario.
Instead the court found that the unilateral act of withdrawing an action does not constitute a prevailing of the defense on the merits of its answer or special defenses as required to recover attorney’s fees under § 42-150bb.
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