Opinion
No. CV06-6000114S
October 3, 2007
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
The plaintiff commenced this action against the defendant to foreclose on a mortgage dated September 13, 2001 which secured a note of the same date in the amount of $217,000.00. The mortgage secured two parcels in Waterbury; 35-37 Grove St. and 639 Cooke St.
The plaintiff is the assignee of the note and mortgage, whose original owner and mortgagee was Interbay Funding, Inc. The plaintiff alleges in its complaint that the defendant has failed, refused and neglected to make monthly principal and interest payments since April 1, 2005. The defendant has filed an Answer in which its admits the execution of the loan documents but denies it is in default. Also, the defendant filed special defenses of bad faith and equitable estoppel.
The plaintiff has moved for summary judgment as to liability only of the defendant.
The court first reviews the standards it must apply in deciding a motion for summary judgment. 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." Practice Book § 17-49; H.O.R.S.E. of Connecticut, Inc. v. Washington, 258 Conn. 553, 559 (2001); Alvarez v. New Haven Register, Inc., 249 Conn. 709, 714 (1991); Nicholas v. Lighthouse Restaurant, Inc., 246 Conn. 156, 163 (1998); Peerless Ins. Co. v. Gonzalez, 241 Conn. 476, 481 (1997); see Sherwood v. Danbury Hospital, 252 Conn. 193, 201 (2000); Rivera v. Double A. Transportation, Inc., 248 Conn. 21, 24 (1999).
The party moving for summary judgment bears the burden of proving the absence of a dispute as to any material fact which, under applicable principles of substantive law, entitles him to a judgment as a matter of law; and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. H.O.R.S.E. of Connecticut, Inc. v. Washington, 258 Conn. 553, 559 (2001); Rivera v. Double A. Transportation, Inc., supra, 248 Conn. 24. "To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact." Witt v. St. Vincent's Medical Center, 242 Conn. 363, 372 n. 7 (2000). "Although, the moving party must show the nonexistence of any material fact, an opposing party must substantiate its adverse claims by showing there is a genuine issue of material fact along with the evidence disclosing the existence of such an issue." Paul Revere Life Ins. Co. v. Pastena, 52 Conn.App. 318, 322, cert. denied, 248 Conn. 917 (1999).
"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." Sherwood v. Danbury Hospital, supra, 252 Conn. 201; Serrano v. Burns, 248 Conn. 419, 424 (1999); Connell v. Colwell, 214 Conn. 242, 246-47 (1990); Forte v. Citicorp Mortgage, Inc., 66 Conn.App. 475, 482 (2001). In Connecticut, a directed verdict may be rendered only if, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed. United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 380 (1969); Vuono v. Eldred, 155 Conn. 704, 705 (1967). "In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500 (1988); Telesco v. Telesco, 187 Conn. 715, 718 (1982).
This court is guided by the case of Chase Manhattan Mortgage Corp. v. Machado, 83 Conn.App. 183 (2004), which dealt with the granting of summary judgment in a foreclosure action on the issue of liability only when the defendant has raised equitable special defenses. The court in Chase Manhattan restated the law that is applicable as follows:
"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." (Internal quotation marks omitted; citations omitted.)
In this matter, the defendant's special defenses have previously been stricken by the court. Therefore, the court is left to determine whether the plaintiff has provided sufficient evidence in its summary judgment motion to prove the making validity and enforcement of the mortgage and note.
The court has reviewed the defendant's opposition to summary judgment. The defendant's affidavit does not contain specific facts in opposition but rather contains conclusionary statements, arguments and protestations. The defendant in its opposition memorandum does not cite any case law in support of its claims but rather makes equitable arguments to the court. As to the liability, determination by the court in this matter, the court's review is to conclude whether or not the note and mortgage are legally enforceable.
The court grants the plaintiff's motion for summary judgment as there are no genuine issues of material fact as to liability in this matter and judgment should be granted as a matter of law.