Motion for Summary Judgment as to Liability on the Complaint *5 The plaintiff first contends that, because Ayers was

defaulted by order of the court for failure to disclose a defense, he may not contest liability. The plaintiff concludes that it is therefore entitled to summary judgment on that basis. Practice Book s 13-19 provides, in relevant part: "If the defendant fails to disclose a defense ... within ten days of the filing of such demand in any action to foreclose a mortgage, the plaintiff may file a written motion that a default be entered against the defendant by reason of the failure of the defendant to disclose a defense. If no disclosure of defense has been filed, the judicial authority may order judgment upon default to be entered for the plaintiff at the time the motion is heard or thereafter, provided that in either event a separate motion for such judgment has been filed. The motions for default and for judgment upon default may be served and filed simultaneously but shall be separate motions." (Emphasis added.) Moreover, Practice Book s 17-33(b) provides that, "[s]ince the effect of a default is to preclude the defendant from making any further defense in the case so far as liability is concerned, the judicial authority, at or after the time it renders the default ... may also render judgment in foreclosure cases ... provided the plaintiff has also made a motion for judgment and provided further that any necessary affidavits of debt or accounts or statements verified by oath, in proper form, are submitted to the judicial authority." (Emphasis added.) Accordingly, to obtain judgment on the basis of default, a party must file a motion for judgment upon default pursuant to ss 13-19 and 17-33(b) rather than a motion for summary judgment. See Ciccarello v. Cahill, Superior Court, judicial district of Middlesex, Docket No. 65497 (August 26, 1992, Higgins, J .) (7 Conn. L. Rptr. 263); see also W. Horton & K. Knox, 1 Connecticut Practice Series: Superior Court Civil Rules s 13-19, p. 674 (2011) ("A motion for summary judgment after default is not appropriate."). Although the court, Vacchelli, J., granted the motion for default for failure to disclose a defense on April 26, 2010, the plaintiff has not filed a motion for judgment upon default pursuant to ss 13-19 and 17-33(b). Instead the plaintiff is improperly attempting to seek judgment upon default via a motion for summary judgment. The plaintiff, as explained above, is not entitled to summary judgment on the basis of default for failure to disclose a defense. Second, the plaintiff argues that there is no genuine issue of material fact and, as a matter of law, Ayers is in default on the note and mortgage. The defendant argues as follows: "Defendant does not dispute the default of debt under the payments of [principal] on the mortgage and note. The [c]ourt has granted this default on [April 16, 2010]. Defendant does and will dispute all aspects of the debt on escrow and reinstatement issues and the amounts due, and will request that [these] issues [be] determined in furtherance of this litigation." (Defendant's

Memorandum of Law, p. 3.) *6 "A summary judgment, interlocutory in character, may be rendered on the issue of liability alone, although there is a genuine issue as to damages." Practice Book s 17-50. Where the plaintiff in a foreclosure action brings a motion for summary judgment on liability only, the defendant may avoid summary judgment if he or she demonstrates a genuine issue of material fact as to at least one of his or her special defenses. See Union Trust Co. v. Jackson, 42 Conn.App. 413, 417, 679 A.2d 421 (1996). The present motion may be disposed of by reference to Ayers' special defenses. He interposes two special defenses alleging inequitable conduct on the part of Saxon, as the plaintiff's agent. In the first, Ayers alleges that Saxon refused to accept his first attempt to cure the default on the note in March 2008, despite the fact that the payment complied with the terms Saxon had previously described as sufficient to cure default. In the second, he alleges the same as to his April 2008 attempt to cure the default. "Historically, defenses to a foreclosure action have been limited to payment, discharge, release or satisfaction ... or, if there had never been a valid lien ... The purpose of a special defense is to plead facts that are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action ... A valid special defense at law to a foreclosure proceeding must be legally sufficient and address the making, validity or enforcement of the mortgage, the note or both ... Where the plaintiff's conduct is inequitable, a court may withhold foreclosure on equitable considerations and principles ... [O]ur courts have permitted several equitable defenses to a foreclosure action." (Internal quotation marks omitted.) Fidelity Bank v. Krenisky , 72 Conn.App. 700, 705- 06, 807 A. 2d 968, cert. denied, 262 Conn. 915, 811 A.2d 1291 (2002). One such defense is the doctrine of unclean hands. See Thompson v. Orcutt, 257 Conn. 301, 310, 777 A.2d 670 (2001). "The doctrine of unclean hands expresses the principle that where a plaintiff seeks equitable relief, he must show that his conduct has been fair, equitable and honest as to the particular controversy in issue ... Unless the plaintiff's conduct is of such a character as to be condemned and pronounced wrongful by honest and fair-minded people, the doctrine of unclean hands does not apply." (Internal quotation marks omitted.) Id. By contrast, "if a party's claim grows out of or depends upon or is inseparably connected with his own prior fraud, a court of equity will, in general, deny him any relief ... Indeed, [the Supreme] [C]ourt has applied the doctrine to preclude a litigant from recovering in equity if his or her conduct has been inequitable with respect to the subject of the action." (Citation omitted; internal quotation marks omitted.) Id., 312.

The court finds, based on the evidence discussed above with respect to the counterclaim, that there is an issue of fact as to whether dishonest conduct of the plaintiff, through Saxon, prevented Ayers from properly curing the default and thereby avoiding the present foreclosure action. Accordingly, there are genuine issues of material fact relevant to the issue of whether foreclosure should be denied to the plaintiff due to its inequitable conduct. III CONCLUSION *7 On the basis of the above analysis, the court hereby denies the motion for summary judgment in its entirety. Conn.Super.,2011. Deutsche Bank Nat. Trust Co. v. Ayers Not Reported in A.3d, 2011 WL 2611806 (Conn.Super.) END OF DOCUMENT