Keybank, N.A. v. Brightly

Full title: KEYBANK, N.A. v. Arden BRIGHTLY aka Arden L. Santana et al.

Court: Superior Court of Connecticut

Date published: Aug 8, 2018

NNHCV16606161S (Conn. Super. Ct. Aug. 8, 2018)

Opinion

NNHCV16606161S

08-08-2018

KEYBANK, N.A. v. Arden BRIGHTLY aka Arden L. Santana et al.

SPADER, J.

UNPUBLISHED OPINION

SPADER, J.

PRELIMINARY FACTS/PROCEDURAL POSTURE

The Plaintiff commenced this action by Writ, Summons, and Complaint dated April 15, 2016 and returned to this Court on May 17, 2016.

In its Complaint the Plaintiff alleges that its predecessor in interest, New Haven Savings Bank, provided a loan to Patricia R. Boyd in the principal amount of $58,800.00 on or about January 17, 2002. To secure the loan, Ms. Boyd executed a Note in favor of New Haven Savings Bank and also executed a Mortgage Deed securing the debt with real property located at 47 Admiral Street in New Haven. The Mortgage was promptly and properly recorded in the New Haven Land Records in Volume 6028 at Page 124 on January 23, 2002.

New Haven Savings Bank was renamed New Alliance Bank and was then acquired by First Niagara Bank, NA. First Niagara was ultimately merged with KEYBANK, NA, the present Plaintiff.

Ms. Boyd passed away on or about April 16, 2009. As evidenced by a Certificate of Devise recorded in the New Haven Land Records in Volume 8759 at Page 335 on November 29, 2011, ARDEN BRIGHTLY a/k/a ARDEN L. SANTANA and ERIN SANTANA became the owners of the property that was subject to the Plaintiff’s mortgage.

In the two years since the commencement of this action, a number of pleadings have been filed to address perceived issues with the Mortgage, alleged payments and the Plaintiff’s standing. In an effort to resolve issues pending in this matter, the Court Ordered that all outstanding matters be set down for a Hearing on. July 27, 2018. On said date, the Court addressed the following pleadings:

143.00: Plaintiff’s Motion for Strict Foreclosure

171.00 & 173.00: Defendant’s Motion for Summary Judgment (re-filed/amended at 173.00 with additional attachments)

174.00: Defendant’s Objection to Affidavit of Loss

186.00: Defendant’s Interpleader Complaint (Coded by the Clerk as a Motion to lmplead, but already addressed by the Court’s denial of the Defendant’s Motion to Implead found at Motion # 160.00 on February 21, 2018)

197.00: Plaintiff’s Motion to Strike/Dismiss Defendant’s Counter claim

198.00: Defendant’s Motion to Dismiss

202.00: Defendant’s Request to Leave to File to Amendment to Counterclaim and Special Defenses

203.00: Defendant’s Constitutional Challenge to State Statute and Motion to Intervene

204.00: Plaintiff’s Motion for Summary Judgment

(The Court also, necessarily, reviewed related pleadings to the above noted pleadings such as Objections thereto and supporting filings.)

At the Hearing, the Court heard arguments on all motions (and made findings of nonmilitary status and appraised value in the event the motions resolved in favor of the Plaintiff and the Motion for Strict Foreclosure would be granted) and took the motions on the papers. This Memorandum discusses the Court’s rulings on all motions.

203.00: DEFENDANT’S CONSTITUTIONAL CHALLENGE TO STATE STATUTE AND MOTION TO INTERVENE

The Court began the Hearing addressing Motion # 203.00, as the signature block indicates it to be filed by a Nedra Yahsal El as "Registered Owner" of SANTANA ARDEN LASHAY dba ARDEN BRIGHTLY. Even as the Defendant objected to the Plaintiff’s insinuation that her pleadings sounded of "sovereign citizen" ideology, she displayed the ideology in Pleading # 203. The Defendant is an individual, not a corporation. If she insists on maintaining corporate status, all of her pleadings would be stricken, as she is not a licensed attorney in Connecticut and, therefore, could not represent a corporation.

In the pleading, Nedra Yahsal El requests to intervene as the "owner" of the Defendant. Ownership of individuals was outlawed by the 13th Amendment to the U.S. Constitution prior to our lifetimes. The Court will not permit a party to appear in Court alleging to be the "owner" of a real person, a real person in interest, or a self-represented litigant. The Defendant indicated that the purpose of the Motion was to put the Connecticut Attorney General on notice of the July 27, 2018 Hearing and the challenges Nedra Yahsal El was making to the Court’s jurisdiction and the Mortgage Chapter of the Connecticut General Statutes. As Nedar Yahsal El is not a party to this action and cannot "own" Arden Lashay Santana, the Court is striking this pleading.¹

1 Substantively, if the motion to intervene was deemed to have been filed by the Defendant, it would be denied, as she is already a party to this action and the motion seeks relief under the Federal Rules of Civil Procedure rather than the Connecticut Practice Book.

MOTIONS # 171 & 173: DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

At the Hearing, the Defendant indicated her intent was for Motion # 173.00 to act as an Amendment to Motion # 171.00, so Motion # 171.00 could be stricken. The Defendant moves for Summary Judgment on the grounds that:

1) KEYBANK, NA, as an alleged impleaded defendant, should be estopped from making its claims;

2) KEYBANK, NA is not the owner of the Note and Mortgage;

3) No alleged impleaded defendants have responded to the alleged Impleader Plaintiff’s Answer, counterclaims or affidavits or Motion to Dismiss; and

4) The time for Keybank to respond to pleadings has lapsed.

In support of her motion, the Defendant filed an Affidavit which alleges, inter alia, that the Executrix’ UCC lien on the property is prior in right to the Plaintiff’s previously recorded Mortgage. That the prior (1987) mortgage between Ms. Boyd and the Plaintiff is released and that Release releases the present mortgage. That the Plaintiff made misrepresentations causing the Defendant to make monthly payments to the bank through November 2015. The Defendant "presented tender to discharge" the instant Mortgage in October 2015. That insurance existed through The Savings Bank Life Insurance Company that should have paid off the Plaintiff’s mortgage. That the Plaintiff had notice of Ms. Boyd’s death in 2009. That the Plaintiff, as a corporation, has no right to sue pursuant to United States v. Lovasco, 431 U.S. 783 (1977). That Plaintiff’s legal representatives committed acts that "are subversive to the People of the United States." That the October 2015 "Lawful negotiable instrument" was wrongfully dishonored by the Plaintiff and that no assignments of the Mortgage are recorded on the land records.

The Defendant further claims that the Plaintiff lacks standing as it does not own the Note and Mortgage (purportedly evidenced by the Plaintiff’s Affidavit of Lost Note). That the current Plaintiff is not the original lender according to the Defendant, and as such, the Defendant argues that every time a bank acquires another bank, they have to send out new mortgages and notes to all of their borrowers for consent of the acquisition. That the Plaintiff is not a holder in due course and concealed material facts. That the attorney that closed the mortgage did not record it and that the Plaintiff has failed to comply with discovery and failed to responsively plead to the Interpleader Complaint.

DISCUSSION OF LAW

Pursuant to Connecticut Practice Book § 17-49, "summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." A material fact is one that would alter the outcome of the case. Southbridge Associates, LLC v. Garofalo, 53 Conn.App. 11, 14 (1999), citing Hammer v. Lumberman’s Mutual Casualty Co., 214 Conn. 573, 578 (1990).

The purpose of a motion for summary judgment is to dispose of actions lacking a triable issue of material fact. See, for example, Dorazio v. M.B. Foster Electric Co., 157 Conn. 226, 228 (1968). "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party ... The test is whether a party would be entitled to a directed verdict on the same facts." Connecticut Bank & Trust Co. v. Carriage Lane Associates, 219 Conn. 772 (1991). (Citation omitted; internal quotation marks omitted.)

"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact ... The courts hold the movant to a strict standard ... Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue." Allstate Insurance Co. v. Barron, 269 Conn. 394 (2004). (Citations omitted; footnote omitted; internal quotation marks omitted.)

The existence of a genuine issue of material fact must be demonstrated by counter-affidavits and concrete evidence. Pion v. Southern New England Telephone Co., 44 Conn.App. 657 (1997). "It is not enough for the opposing party merely to assert the existence of a disputed issue." Daily v. New Britain Machine Co., 200 Conn. 562, 569 (1986). Likewise, a party’s conclusory statements in affidavits or other pleadings do not constitute evidence sufficient to establish the existence of disputed material facts. Gupta v. New Britain General Hospital, 239 Conn. 574 (1996).

"A material fact is a fact that will make a difference in the result of the case." Tuccio Development, Inc. v. Neumann, 114 Conn.App. 123, 126 (2009) (Internal quotation marks omitted). The fundamental purpose of summary judgment is preventing unnecessary trials. See Orenstein v. Old Buckingham Corp., 205 Conn. 572, 574 (1987).

At oral argument, upon inquiry of how the federal criminal case of United States v. Lavasco, 431 U.S. 783 (1977) stood for the proposition that corporations have no legal standing to sue in our Courts, the Defendant consented to striking that claim of hers, advising that as a self-represented party, she didn’t have the training or ability to research the law she cited in her pleadings, and the assistance she received in drafting her pleadings was inadequate. The Court had a great deal of difficulty deciphering many of the Defendant’s pleadings, but herein tries to be as accommodating as possible to accept all of the Defendant’s claims as well-pled.

The first evident issue with the Defendant’s Motion for Summary Judgment is that it ignored the Court’s denial of the Defendant’s Motion to Implead filed August 28, 2017 (Motion # 160.00). The Defendant refers the Keybank as "the interpleaded defendant" and herself as "the Interpleader Plaintiff." To acquire those titles, there must be a granted Motion to Implead, which was served pursuant to Connecticut’s process laws. Although the Defendant filed among her voluminous pleadings a document entitled "Interpleader Complaint" and additional interpleader documents, these are not operative pleadings in this case in light of the Court’s February 21, 2018 denial of her Motion to Implead. Accordingly, in its capacity as an alleged "Interpleader Defendant," Keybank had no obligation to reply to unauthorized pleadings, nor is it even a defendant in this matter.

Accordingly, as a matter of law, there is no estoppel for Keybank’s not responding to any alleged Interpleader Complaint and Summary Judgment is denied on reason # 1, 3 and 4 set forth in the Defendant’s motion.

The Defendant’s claimed reason # 2 for her Summary Judgment motion that Keybank is not the owner of the subject Note and Mortgage. In her various attachments and filings, the Court surmises her grounds for this claim is that the Plaintiff filed an Affidavit of Lost Note and the assertions in her affidavits that either a release exists and/or no assignments were recorded. The Defendant also filed an Objection to Lost Note at Pleading # 175.00.

"It is well established that the plaintiff is entitled to pursue its remedy at law on the notes, or to pursue its remedy in equity upon the mortgage, or to pursue both. A note and a mortgage given to secure it are separate instruments, executed for different purposes and in this State action for foreclosure of the mortgage and upon the note are regarded and treated, in practice, as separate and distinct causes of action, although both may be pursued in a foreclosure suit." (Internal citations omitted). Hartford National Bank & Trust Co. v. Kotkin, 185 Conn. 579 (1981). See also J.P. Morgan Chase Bank, NA v. Winthrop Properties, 312 Conn. 662 (2014).

A note and a mortgage are two different indicia of evidence of a debt. The Note is utilized when a Plaintiff is seeking a judgment or deficiency judgment against the individual who signed the Note (which they are not pursuing here, as that individual has passed away). The filing of an Affidavit of Lost Note is a means for the Plaintiff to put a copy of the Note into evidence, and the Court is free to assign whatever evidentiary weight it wishes to the Affidavit. Here, however, the Plaintiff is seeking a foreclosure of the mortgage, and it has attached a certified copy of the mortgage as recorded in the land records to various pleadings it has filed.

While the mortgage and note are intertwined, the Plaintiff’s ability to prosecute an action despite the loss of an original note (and/or original mortgage) is well established. Once the plaintiff has provided the Court with an Affidavit and a copy of the lost document, the defendant has the obligation to present evidence that it is not an accurate copy or dispute its terms. See Guaranty Bank & Trust Co. v. Dowling, 4 Conn.App. 376, 381 (1985), and also Laurel Bank & Trust Co. v. Sahadi, 32 Conn.Supp. 172, 177 (1975).

At oral argument, the Defendant did not present any evidence that the copy of the Note attached to the Lost Note Affidavit is not a true copy of the Note.

The Defendant’s other claims on reason # 2 for her Summary Judgment also fail as a matter of law. The Defendant claims that the Mortgage is not recorded on the land/records, but in the record is a certified copy of the Mortgage recorded in the New Haven Land Records at Volume 6028 at Page 124 on January 23, 2002. The purported release referred to by the Defendant in her possession from March 2002 clearly, by its own terms, releases the prior mortgage in Volume 3706 at Page 341 and has no legal impact on the Mortgage being foreclosed.

The Defendant points to a lack of assignments on the land records as proof that the Plaintiff has no standing, but Keybank, N.A., is a legal successor in interest to the original mortgagee, New Haven Savings Bank. Printouts from The National Information Center have been provided in various Plaintiff’s pleadings to show the name history of New Haven Savings Bank and the Court credits the veracity of said documentation. The Affidavit attached to the Plaintiff’s Motion for Summary Judgment also avers to the Plaintiff’s name history.

The Defendant further claims, as there is no Original Note presented to the Court, the Note has not been endorsed in blank or endorsed over to Keybank. However, the Defendant does not understand that there has been no assignment of the Note or Mortgage. Keybank, through mergers and acquisitions, is also the successor in interest for all New Haven Savings Bank assets and no endorsement is needed on the Note. The Defendant indicated that when New Alliance Bank succeeded New Haven Savings Bank, a notice of the purchase was recorded on the New Haven Land Records, and no subsequent notices of merger are recorded. The Defendant has not referred the Court to a statute requiring notices of mergers to be recorded in all land records where a bank holds a mortgage nationwide to effectuate a merger or acquisition.

In her motion, the Defendant also makes a UCC priority claim, advising that her recorded interest in the property is prior to the Mortgage (presumably since her ownership of the property is prior to the mergers with New Alliance Bank and Keybank(?) ) and her regular argument that the loan is paid either by her November 2015 "tender" of a piece of paper that looks like a check from the United States Treasury or by a life insurance policy that existed on the paid, released, 1987 mortgage. The Defendant has presented no proof of payment and the recordation of the present Mortgage defeats the Defendant’s arguments on UCC priority.

As Keybank is the owner of the Mortgage sought to be foreclosed in its Complaint, and it has not been paid or subordinated, Summary Judgment is denied as to reason # 2 of the Defendant.

Based on the foregoing, Defendant’s Motion for Summary Judgment (# 173.00) is denied. Defendant has not set forth in the Motion any claim upon which the Court can render a judgment of dismissal on her behalf.

174.00: DEFENDANT’S OBJECTION TO AFFIDAVIT OF LOSS

For the reasons stated above in the discussion on the Defendant’s Motion for Summary Judgment, the Defendant’s Objection to the Defendant’s Affidavit of Loss is Over-Ruled.

186.00: DEFENDANT’S INTERPLEADER COMPLAINT

To the extent the Clerk coded the Defendant’s Interpleader Complaint as a "Motion to Implead," the Motion (if it is a Motion) is denied, based on the Court’s denial of Motion # 160.00 on February 21, 2018.

197.00: PLAINTIFF’S MOTION TO STRIKE/DISMISS DEFENDANT’S COUNTERCLAIM 199.00: DEFENDANT’S OBJECTION MOTION TO DISMISS 200.00: DEFENDANT’S OBJECTION AFFIDAVIT 202.00: DEFENDANT’S REQUEST TO LEAVE TO FILE TO AMENDMENT TO COUNTERCLAIM AND SPECIAL DEFENSES

Connecticut Practice Book § 10-10 provides, in part, that "any defendant may file counterclaims against any plaintiff ... provided that each such counterclaim ... arises out of the transaction or one of the transactions which is the subject of the plaintiff’s complaint." "This section is a common-sense rule designed to permit the joinder of closely related claims where such joinder is in the best interests of judicial economy." JP Morgan Chase Bank, Trustee v. Rodrigues, 109 Conn.App. 125, 131 (2008). "While courts have recognized equitable defenses in foreclosure actions, they have generally only been considered proper when they attack the making, validity, or enforcement of the lien, rather than some act of procedure of the lien holder." Citimortgage, Inc. v. Rey, 150 Conn.App. 595, 600 (2014).

Deciphering her pleadings as favorable to her as the Court can, it appears that her Counterclaim, as Amended by pleading # 202.00, alleges the following "Counteractions" or Counter-Claims:

1) Statute of Frauds- because the defendant(s)² is (are) not parties to the Note or Mortgage; the Plaintiff was paid from insurance proceeds and the Plaintiff concealed information;

2) Consumer Protection Violations- essentially because the Plaintiff hasn’t provided the defendant with proof it verified the debt prior to commencing the action;

3) Common-Law Negligence and Infliction of Emotional Distress- by filing a foreclosure action without her consent and harassing the Defendant;

4) Breach of Good Faith and Fair Dealing- no cognizable reason is stated;

5) UCC Violations- because the Plaintiff filed an Affidavit of Lost Note, the Defendant feels her Certificate of Devise should become a first lien over the recorded Mortgage.

2 The Court notes Plaintiff’s counsel’s arguments that the Defendant, as a self-represented litigant, cannot represent the interest of Erin Santana, but it is attempting to read the arguments in a manner to best be construed legally sufficient by the self-represented party.

Taking each in turn:

1) Statute of Frauds. The Defendant’s counterclaim of statute of frauds is stricken. The Defendant is certainly not a party to the Note and she is only served pursuant to the Complaint as the current owner of the equity of redemption as an heir to the original notemaker. Further, she has the burden to show payment from the life insurance policy, and by the Defendant’s own pleadings, she has provided the Court with copies of her complaints to the Connecticut Department of Banking (in which she was advised that the policy was not in effect at the time of her mother’s passing), which does not support her allegations and she has not provided the Court with proof of payment. Payment from a third party is a defense that is the Defendant’s burden to prove. No cause of action is pled under the caption of "Statute of Frauds" in this case that goes to the making, validity or enforcement of the mortgage.

2) Consumer Protection Violations. The Defendant’s counterclaim of consumer protection violations is stricken. As pled, the Defendant has not stated a claim upon which relief can be granted.

3) Common-Law Negligence and Infliction of Emotional Distress. The Defendant’s counterclaim of common-law negligence and infliction of emotional distress is stricken. Our Courts do not recognize this counterclaim in foreclosure action as it fails the "transaction test" of arising out of the making of the mortgage (See JP Morgan Chase Bank v. Rodrigues, 109 Conn.App. 125 (2008) ).

4) Breach of Good Faith and Fair Dealing. The Defendant’s counterclaim of breach of good faith and fair dealing is stricken. The Defendant has not properly articulated her legal claim in this regard, but certainly has not alleged a claim arising out of the mortgage closing transaction that the Court can offer any relief upon. Plaintiff notes in its Motion and at oral argument that the Defendant may be claiming a RESPA (12 U.S.C. § 2605) violation for not responding to her requests, but also as the Plaintiff points out, the Defendant is an heir and not the borrower on the documents.

5) UCC Violations. The Defendant’s counterclaim alleging UCC Violations is stricken. The Defendant has alleged in various pleadings that the mortgage was released and some UCC filing she placed on the land records created a superior lien in her as to the bank. The release that the Defendant points to was on a different older mortgage (the release was received because the instant mortgage paid that older mortgage off). The Defendant angrily attacks Plaintiff’s counsel here for noting that she is making the proverbial "sovereign citizen" UCC argument, saying that she is not an adherent to "sovereign citizen" ideology. This counterclaim of the Defendant does sound of routinely discredited sovereign citizen UCC arguments that this Court summarily rejects. Plaintiff has presented the Court with a certified copy of a recorded mortgage prior in right to any interest of the Defendant’s right of redemption and as such the Court does not see any valid UCC arguments pled by the Defendant.

Accordingly, for the aforestated reasons, the Defendant’s Original Counterclaims, and Counterclaims as purported to be amended, are stricken.

204.00: PLAINTIFF’S MOTION FOR SUMMARY JUDGMENTS³

3 The Defendant objected to the Court hearing this Motion (Motion # 211), as it was not outstanding at the time the Court sent its Order to hear all outstanding motions. The Motion was filed July 17, 2018. The Defendant expected her Motion # 203 to be addressed at the Hearing, which was filed July 16, 2018 (also after the Court’s July 6, 2018 Notice), and argument was had on it. The issues in the Motion for Summary Judgment are the same issues being addressed in the Defendant’s Motion for Summary Judgment and the Motions to Strike, so the Court denies her oral request to not rule on the Motion for Summary Judgment.

The Court will repeat its discussion of law relating to summary judgments, as set forth above.

DISCUSSION OF LAW

Pursuant to Connecticut Practice Book § 17-49, "summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." A material fact is one that would alter the outcome of the case. Southbridge Associates, LLC v. Garofalo, 53 Conn.App. 11, 14 (1999), citing Hammer v. Lumberman’s Mutual Casualty Co., 214 Conn. 573, 578 (1990).

The purpose of a motion for summary judgment is to dispose of actions lacking a triable issue of material fact. See, for example, Dorazio v. M.B. Foster Electric Co., 157 Conn. 226, 228 (1968). "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party ... The test is whether a party would be entitled to a directed verdict on the same facts." Connecticut Bank & Trust Co. v. Carriage Lane Associates, 219 Conn. 772 (1991) (citation omitted; internal quotation marks omitted).

"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact ... The courts hold the movant to a strict standard ... Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue." Allstate Insurance Co. v. Barron, 269 Conn. 394 (2004) (citations omitted; footnote omitted; internal quotation marks omitted).

The existence of a genuine issue of material fact must be demonstrated by counter-affidavits and concrete evidence. Pion v. Southern New England Telephone Co., 44 Conn.App. 657 (1997). "It is not enough for the opposing party merely to assert the existence of a disputed issue." Daily v. New Britain Machine Co., 200 Conn. 562, 569 (1986). Likewise, a party’s conclusory statements in affidavits or other pleadings do not constitute evidence sufficient to establish the existence of disputed material facts. Gupta v. New Britain General Hospital, 239 Conn. 574 (1996).

"A material fact is a fact that will make a difference in the result of the case." Tuccio Development, Inc. v. Neumann, 114 Conn.App. 123, 126 (2009) (internal quotation marks omitted). Special defenses that attack the making, validity or enforcement of the note and mortgage and raise genuine issues of material fact that would warrant a trial, may prevent the trial court from granting summary judgment in a foreclosure action. See Garofalo, 53 Conn.App. at 14 (1999). The fundamental purpose of summary judgment is preventing unnecessary trials. See Orenstein v. Old Buckingham Corp., 205 Conn. 572, 574 (1987).

THE PLAINTIFF’S PRIMA FACIA CASE

The Court first considers the Plaintiff’s argument that it has established the elements of a prima facie cause of action for foreclosure of a mortgage. To establish a prima facie case, the mortgagee must prove by a preponderance of the evidence that: (1) it was the owner of the note and/or mortgage at the time it commenced the action; and (2) the defendants defaulted on their obligations. The Plaintiff must also have satisfied any conditions precedent in the Note and Mortgage. See, for example, Webster Bank v. Flanagan, 51 Conn.App. 733, 750-51 (1999).

In support of its motion, the Plaintiff submits an affidavit of Christopher Williams, an Officer of Keybank, NA. The affiant attests that he has personal knowledge of Keybank’s record creation procedures and has reviewed the Plaintiff’s records in preparation of the Affidavit. He provides the Court with the Affidavit of Lost Note from Corinne A. Stein, from July 11, 2016, when Ms. Stein was an Assistant Vice President of First Niagara Bank, NA, and attached to the affidavit is a copy of the original promissory note advising the Court of the terms of the loan. The Court credits this Affidavit for its veracity and accepts the copy of the Note as a true copy of the Original. Then, Mr. Williams attests to the default in payments, and avers to the corporate history of the Plaintiff, tracing its names from New Haven Savings Bank to Keybank, NA. The Plaintiff also includes copies of the lost Note and certified, copy of the Mortgage in its Motion.

The appearing Defendant is an heir to the original mortgagor, so she is not personally liable under the Note or Mortgage. She does have the right to redeem the property once the Court sets forth the amount due and a redemption date. The parties have on multiple occasions provided a copy of a check purportedly tendered in October 2015 to the Plaintiff. The "check" is drawn on the account of the United States Treasury. The Defendant’s insistence on the validity of this manner of "payment" is misguided. At oral argument, the Defendant claims that "the water company" accepts payments from her through these computer-generated fictitious documents, so the bank should. She also claims that the copy of this United States Treasury "check" was not returned to her when she mailed it to the Plaintiff, so they must have negotiated it with the U.S. Treasury and her account must be paid off. It is not. No rational person would conclude that this "check" satisfied the debt due to the Plaintiff.

The foregoing Affidavit and documentary evidence establishes the Plaintiff’s prima facie case for foreclosure of the mortgage. The Plaintiff is the owner of the Note, and has been at all times since it was originally executed by the Defendant’s mother. While they cannot locate the original, the Court accepts the Affidavit of Lost Note. As there has been no assignments, the Plaintiff was the owner of the note and the mortgage at the time of the commencement of this action. The Defendant admits to not making monthly payments since November 2015 when she attempted to discharge the debt with the fraudulently drawn check from the United States Treasury. Therefore, the Plaintiff has carried its preliminary burden of showing that there are no genuine issues of material fact as to the liability under the note and mortgage.

THE DEFENDANTS’ SPECIAL DEFENSES AND COUNTERCLAIMS

The Court, above, struck the Defendant’s Counterclaims herein, so all that is left for the. Court to address in terms of the Plaintiff’s Motion for Summary Judgment is the Defendant’s Special Defenses. The Special Defenses are, however, basically a recitation of the same Counterclaims that the Court struck, above.

The Court next addresses these Special Defenses in the context of their existing as potential defenses to defeat summary judgment. "[B]ecause any valid special defense raised by the defendant ultimately would prevent the court from rendering judgment for the plaintiff, a motion for summary judgment should be denied when any [special] defense presents significant fact issues that should be tried." Cadle Co. v. Ogalin, 175 Conn.App. 1, 210, cert. denied, 327 Conn. 930 (2017).

"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 ... [I]f the mortgagor is prevented by accident, mistake or fraud, from fulfilling a condition of the mortgage, foreclosure cannot be had ... Other equitable defenses that our Supreme Court has recognized in foreclosure actions include unconscionability ... abandonment of security ... and usury." Fidelity Bank v. Krenisky, 175 Conn.App. 700, cert. denied, 262 Conn. 912 (2002).

"In Southbridge Associates, LLC. v. Garofalo, [... the] court found that the trial court properly granted summary judgment where the defendant had filed both special defenses and counterclaims on the basis that the special defense failed to attack the making, validity or enforcement of the subject notes and mortgages and that the counterclaims did not arise out of the transactions that were the subject of the plaintiff’s complaint." Citimortgage, Inc. v. Rey, 150 Conn.App. 595, 604 (2014).

In Pleading # 159.00, the Defendant raised 14 Special Defenses. To the extent those Special Defenses are repled and amended into 32 paragraphs in Pleading # 202.00, the Court will accept the Amendment. The Plaintiff responded to the original Special Defenses, but the basic legal argument is the same for both sets of Special Defenses.

The Special Defenses were separated into 5 "Counts" or categories by the Defendant:

1) STATUTE OF FRAUDS (11 Special Defenses)

2) FAIR DEBT COLLECTION PRACTICES (10 Special Defenses)

3) COMMON-LAW NEGLIGENCE AND INFLICTION OF EMOTIONAL DISTRESS (3 Special Defenses)

4) GOOD FAITH, FAIR DEALING and RESPA VIOLATIONS (4 Special Defenses)

5) UNIFORM COMMERCIAL CODE VIOLATIONS (4 Special Defenses)

STATUTE OF FRAUDS SPECIAL DEFENSES

While the Defendant captions her first 11 "First Count" Defenses as Statute of Frauds, she makes no reference to Connecticut General Statute § 52-550 or any claims the Court can find in that statute. She may be claiming that she cannot be sued because there is no agreement in writing between her and the Plaintiff, which is true, but is not necessary under the facts of this case. The Note and Mortgage were signed by her mother and she is not being sued in the capacity of a signer of those documents, but for her present ownership interest in the property as an heir of her mother.

The Court has difficulty categorizing the 11 defenses under the Statute of Frauds. To the extent her arguments sound in a general concept of "fraud," fraud could be a special defense in foreclosure actions. See Fidelity Bank v. Krenisky, 72 Conn.App. 700, 705-06. "Fraud involves deception practiced in order to induce another to act to her detriment, and which causes that detrimental action ... The four essential elements of fraud are (1) that a false representation of fact was made; (2) that the party making the representation knew it to be false; (3) that the representation was made to induce action by the other party; and (4) that the other party did so act to her detriment ... Because specific acts must be pleaded, the mere allegation that a fraud has been perpetrated is insufficient." (Citation omitted; internal quotation marks omitted.) Chase Manhattan Mortgage Corp. v. Machado, 83 Conn.App. 183, 188 (2004).

In the recitation by the Defendant of her 11 defenses, the Court cannot find knowingly false representations made by the Plaintiff inducing any defendant to act to their detriment. The bank gave the Defendant’s mother a loan. There is no indication of fraud in the making of the loan. The 11 paragraphs recite other legal concepts (the Defendant is not a party to that voided loan and has no legal responsibility for it; there are no assignments; the plaintiff lacks standing) with no factual basis.

In this statute of frauds section of the Special Defenses, the Defendant again alleges setoff by the purported life insurance policy. By her own documents, the Defendant has shown the Court the response by the Connecticut Department of Banking to her Complaint against the insurance carrier. The State has advised the Defendant that the policy was no longer in effect when her mother died as it termed out when her mother turned 65. The Defendant objects to the Plaintiff claiming an amount due because they aren’t crediting the payment in full by either the life insurance policy or her United States Treasury "check." The bank can’t credit payments it has not received, nor can it credit "payments" "made" fictitiously.

Again, the Defendant repeats her claim in this section that the Plaintiff does not have standing and does not articulate a legal reasoning for the claim.

As the Defendant has not articulated a Statute of Frauds violation (or otherwise a fraud violation) by the Plaintiff, this Special Defense fails to defeat the Plaintiff’s Motion for Summary Judgment.

FAIR DEBT COLLECTION PRACTICES SPECIAL DEFENSES

The Plaintiff is not a "debt collector" within the meaning of the Fair Debt Collection Practices Act (15 U.S.C. § 1692). The Defendant makes a myriad of claims such as failure to validate the debt, failure to verify the debt, her not consenting to being sued by the Plaintiff, and other claims, none of which are applicable to the Plaintiff as it is foreclosing its own Mortgage and not the debt of another. This Special Defense fails to defeat the Plaintiff’s Motion for Summary Judgment.

COMMON-LAW NEGLIGENCE AND INFLICTION OF EMOTIONAL DISTRESS SPECIAL DEFENSES

The Defendant next claims, as 3 special defenses, that the Plaintiff’s action should be dismissed as it negligently delayed the prosecution of this matter and is now harassing the Defendant. At oral argument, the Defendant appeared to argue that once the bank knew her mother passed (as the Defendant and her siblings told bank officials on at least 3 occasions), they should have immediately foreclosed instead of tricking the heirs into making monthly payments for a number of years. Emotional Distress is not a valid defense to foreclosure. See JP Morgan Chase Bank v. Rodrigues, 109 Conn.App. 125 (2008).

The actions all complained of in this section of Special Defenses relate to alleged activities that are not of the same transaction as the making of the Note and Mortgage. As to payments, the mortgage was not in default until the heirs stopped making payments, and the Plaintiff had the right to commence a foreclosure action once the payments stopped (and once the payoff balance was "tendered" with a fraudulent "check"). These Special Defenses are legally insufficient to defeat summary judgment.

GOOD FAITH, FAIR DEALING AND RESPA VIOLATIONS SPECIAL DEFENSES

The fourth section of 4 Special Defenses attempts to allege a violation of RESPA, 12 U.S.C. § 2615. The Defendant claims that the bank did not properly respond to her various claims or correct errors (or presumably apply the U.S. Treasury "check") or maintain 1 file of all account activity, and as such the Plaintiff has "unclean hands."

"[A] violation of RESPA is not a valid [special] defense to [a] mortgage foreclosure [action]." Webster Bank v. Linsley, Superior Court, judicial district of New Haven at Meriden, Docket No. CV-97-0260406-S (August 14, 2001, Booth, J.). "[A] violation of RESPA, by terms of the act, does not discharge the debt or invalidate the mortgage agreement and, therefore, does not provide a defense to foreclosure. See 12 U.S.C. § 2615 [which provides] ‘[n]othing in this Act shall affect the validity or enforceability ... of any loan, loan agreement, mortgage or lien made or arising in connection with a federally related mortgage loan." (granting motion to strike on ground of legal insufficiency); Security Pacific National Bank v. Robertson, Superior Court, judicial district of Stamford, Docket No. CV-92-0124622-S (August 28, 1997, Hickey, J.) (holding RESPA is not a valid special defense in a foreclosure action); see also Deutsche Bank National Trust Co. v. Medina, Superior Court, judicial district of Stamford, Docket No. CV-08-5006907-S (January 10, 2011, Mintz, J.) (51 Conn.L.Rptr. 270, 276-77) (finding that "allegations that the plaintiff violated TILA and RESPA requirements do not, standing alone, present a legal attack on the validity of the note or mortgage and, therefore, the allegations are not valid special defenses"). This section of Special Defenses is legally insufficient to defeat summary judgment.

UNIFORM COMMERCIAL CODE VIOLATIONS SPECIAL DEFENSES

The Defendant again alleges the setoffs, satisfaction, "not a holder in due course" and payments under the category of 4 Uniform Commercial Code Violations Special Defenses. These claims have been dealt with previously in this memorandum of decision. No allegation in this section of her Special Defenses defeats summary judgment.

CONCLUSION

Accordingly, the Court finds that no genuine issue of material fact exists as to the default on the Note or Mortgage and no valid Special Defense has been pled. The Motion for Summary Judgment is granted as to the Defendant’s liability as the owner of the equity of redemption. The Defendant’s Opposition to Summary Judgment Motion is overruled.

143.00: PLAINTIFF’S MOTION FOR STRICT FORECLOSURE

Having disposed of all other outstanding motions, the only remaining motion is the Plaintiff’s Motion for Strict Foreclosure.

The Court found that the non-appearing Defendants (Erin Santana, personally and Erin Santana and Arden Brightly as Co-Executors of the Estate of Patricia Boyd) are not in the military service. Erin Santana was present in Court in the audience at the Hearing, but did not appear in this matter, nor did she participate in the Hearing.

The Court reviewed the Affidavit of Lost Note and the Certified Copy of the Mortgage and again finds standing for the Plaintiff to pursue this action.

The Court finds that the value of the property at 47 Admiral Street in New Haven, Connecticut is $120,000 ($30,000 to the land and $90,000 to the building thereon) as of July 13, 2018 based upon the affidavit of William F. Esposito, Jr. The Defendant believes the property to be worth "much more" than $120,000 but does not have a counter-appraisal. The Court explained at the hearing that the purpose of an appraisal in the context of ruling on a Motion for Foreclosure is to determine if the form of judgment should be a strict or sale, and with the debt significantly less than the appraisal, the Court would be ordering a sale.

The Court finds the amount due to the Plaintiff to be $62,945.78 as of July 27, 2018 based upon the affidavit of Irena Karovski, Banking Officer at Keybank. The Defendant, through her discredited Special Defenses and Counterclaims clearly believes there to be unapplied "payments" from the United States Treasury "check" and the lapsed life insurance policy. The Court finds there to be no setoffs nor payments from either source. The Bank’s affidavit includes interest from October 1, 2015 (when the Defendant admits to ceasing to send legitimate monthly checks) and includes $9,444.10 in unpaid tax advancements (and Defendant admitted to the Court that she did not know the status of tax payments when asked if the tax collector accepted checks drawn on the United States Treasury account).

The Defendant claims that she just wants to know what amount to pay to whom to resolve this case. This is the amount of the debt. To redeem the property, this debt will need to be paid along with fees and costs of this action (and Committee Fees and Costs as an auction date approaches). Payment would also have to be made with valid funds. Interest accrues at the rate of $8.17 per diem from July 27, 2018.

The Court awards the Plaintiff $10,000 in legal fees and $225.00 in title search fees. The Court awards the appraiser $600.00 for the two appraisals he performed for the Plaintiff.

The Court Orders a FORECLOSURE BY SALE to be conducted on November 17, 2018 by a Committee appointed herewith by the Clerk of the Court.