Free Amended Answer to Complaint - District Court of Connecticut - Connecticut

Case 3:03-cv-01009-SRU

Document 104

Filed 08/29/2005

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT JOSEPH ATTIAS & HAIM ATTIAS VS. PATRONS MUTUAL INSURANCE COMPANY OF CONNECTICUT : : : : : : CIVIL ACTION NO. 3:03 CV 01009 (SRU)

AUGUST 26, 2005

AMENDED COUNTERCLAIM 1. Paragraphs 1 and 2 of the First Affirmative Defense are hereby incorporated by

reference and made Paragraphs 1 and 2 of the Counterclaim. 3. As a result of the above mentioned misrepresentations by the plaintiffs, the

plaintiffs have breached the above quoted provisions of the policy of insurance, " s peeti , oca etn Fad;n, e fr iacrac wtsi Mier n t nC nel n ad r "adt r oe n codne i a r s ao m u he , h d poio o t ply fnuac, e in cvr eo t l so h p i is rv i fh o c o i r et r s o oe g frh o tt ln f ' sn e i s n he a e s e a tf premises referred to in the Complaint; and the df dn dn d h p i isc i . e nat ei t ln f 'lm e e e a tf a 4. Said policy of insurance further provides as follows: 10. Mortgage Clause ­ This applies only to coverae n u d g. h w r " ot ge i l e g o bi i s T e od m r ae"n u s ln g cd trustee.

Case 3:03-cv-01009-SRU

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a. If a mortgagee is named on the Declarations, a loss payee under Coverages A or B will be paid to the mortgagee and you, as interests appear. If more than one mortgagee is named, the order of payment will be the same as the order of precedence of the mortgages. If we deny your claim, that denial does not ap t a ad lm o t m r ae... pl o vl c i fh ot ge y i a e g * * * c. If we pay the mortgagee for a loss and deny payment to you: 1) we are subrogated, up to the amount we paid for the loss, to all the rights of the mortgagee granted under the mortgage on the property; or 2) at our option, we may pay to the mortgage the whole principal on the mortgage plus the accrued interest. In this event, we shall receive a full assignment and transfer of the mortgage and all securities held as collateral to the mortgage debt. S beuntt dn l fh p i isc i ,ln f ' ot ge ak usqeto h ei o t ln f 'lm p i ism r ae bn e a e a tf a a tf g

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submitted a claim for a payment to the defendant. 6. O r e t fa c i t df dn pit p i ism r ae bn n e i o si lm h e nat a h ln f ' ot ge ak cp d a e e d e a tf g

$114,000 in accordance with its duties and obligations pursuant to the above quoted " ot ge l s. m r ae c ue g a "

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7.

The defendant in good faith paid to the plaintiffs $20,000 in advance of the

df dn s eio tacp o dn py et fh p i isc i . e nat dc i o cet r ey am n o t ln f 'lm e ' sn e a tf a 8. The defendant is entitled to recover from the plaintiffs the foregoing payments

in the total amount of $134,000 for one or more of the following reasons: a) The plaintiffs breached the insurance contract in making the material

misrepresentations referred to in paragraph 2 of this counterclaim in breach of the contractual provisions referred to in paragraph 1 of this counterclaim. b) A aeu o t df dn s ot c aol ao t pyh s r l fh e nat cn at l b gt n o a t st e e ' r u i i e

m r ae bn;n,s r u o t df dn s o n r go f tavne am n t ot ge akada ae l fh e nat vl t y od ah dac py eto g st e e ' ua i the plaintiffs in anticipation that the plaintiffs had complied with their contractual obligations, the plaintiffs received the contractual benefit of $134,000 to which the plaintiffs were not entitled as a result of their breach of the contract. Therefore, the plaintiffs were unjustly enriched in the amount of $134,000 and/or c) P r atoh aoe ut " r ae l s"h df dnw s us n tt bv qo d Mot g Ca e t e nat a u e e g u e e

sboa do lr h o t df dn s ot ge ak r t udrh m r ae n h urgt ta i t fh e nat m r ae bn ga e net ot g o t e lg s e e ' g nd e g e property which existed at the time of the payment by the defendant to the mortgagee bank.

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Filed 08/29/2005

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9.

WHEREFORE, the defendant claims: 1. Money damages from the plaintiffs in the amount of $134,000; 2. Interest; and 3. Such other relief as the court may deem equitable and proper.

DEFENDANT, PATRONS MUTUAL INSURANCE COMPANY

By \S\ Joel J. Rottner Skelley Rottner P.C. 433 South Main Street, Suite 305 West Hartford, Connecticut 06110 Tel. (860) 561-7077 Fax (860) 561-7088 Federal Bar No. ct05612

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CERTIFICATION I hereby certify that a copy of the above was mailed via U.S. Mail, postage prepaid, on August 26, 2005, to the following counsel of record: Attorney Cheryl E. Heffernan Farver & Heffernan 2842 Old Dixwell Avenue Hamden, CT 06518 Tel. (203) 288-8266

\S\ Joel J. Rottner

SR/234964

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