Opinion
No. WWMCV08-5003461S
April 30, 2010
MEMORANDUM OF DECISION RULING ON MOTION FOR SUMMARY JUDGMENT AND OBJECTION ( MOTIONS #139 AND #173)
The plaintiff has moved for summary judgment in accordance with Practice Book § 17-44 et seq., as to liability on the complaint, the special defenses and the counterclaims with respect to defendant, Dorothy Gagnon (the "Defendant"). The plaintiff alleges that, as to the Defendant, there are no genuine issues regarding any material facts or issues of law.
Procedural History Regarding this Motion
The court judicially notices that on September 15, 2009, the plaintiff filed this motion for summary judgment. On September 22, 2009, the Defendant filed a request for extension of time for 90 days to respond to the plaintiffs' motion for summary judgment. On October 5, 2009, the court (Riley, J.) granted her 30 days to respond to the summary judgment motion. The Defendant, on November 17, 2009, objected to the plaintiff reclaiming the motion for summary judgment. On November 19, 2009, the court (Riley, J.) concluded that the outstanding discovery was not an "impediment to the filing of a pleading responsive to the plaintiffs' motion for summary judgment." On December 16, 2009, the Defendant filed a motion for extension of time to respond to the plaintiffs' motion for summary judgment. On December 21, 2009, the Defendant filed her objection to the plaintiffs' motion for summary judgment (Motion #173) and her memorandum of law in support of the objection.
A hearing on the motion and objection was held by the court on January 11, 2010. In support of its motion, the plaintiff submitted the following documents: Ex. 1. A copy of Defendant's Answer, Special Defenses, and Counterclaims; and Ex. 2 an affidavit of the plaintiff as proof that the plaintiff is the owner of the Note and Mortgage and that the payments on the Note are in default, and the balance due on the Note. On January 11, 2020, the court heard oral argument by plaintiffs' counsel. The Defendant did not appear at the hearing on the motion and did not present evidence, but relied on her objection in contravention of the motion to the motion for summary.
FINDINGS OF FACTS
The plaintiff commenced this foreclosure action by writ, summons and complaint dated August 28, 2008. The complaint alleges that on or about August 19, 2004, the Defendant executed and delivered to Mortgage Lenders Network USA, Inc. ("MLN"), a Note (the "Note") for a loan in the original principal amount of $174,250. Ex. 2. The Note was endorsed to JP Morgan Chase Bank, as Trustee. The plaintiff alleges that it purchased the trust business of JP Morgan Chase Bank. An affidavit attesting to that purchase is found as part of Exhibit A. The evidence establishes that the plaintiff is in possession of the Note.
On August 19, 2004, to secure the Note, the Defendant executed and delivered to Mortgage Electronic Registration Systems, Inc., as Nominee for MLN, a Mortgage (the "Mortgage") on the property known as 36 North Road, Ashford, Connecticut (the "Property"). The Mortgage was dated August 19, 2004 and recorded on August 24, 2004 in Volume 145, at Page 395 of the Ashford Land Records. A copy of the Mortgage is designated as Exhibit B to the affidavit (Ex. 2). The mortgage has been assigned to the plaintiff. A true and accurate copy of the assignment is designated Exhibit C to the affidavit (Ex. 2). The plaintiff is in possession of the Mortgage.
The plaintiff alleges that the Defendant has failed, refused or neglected to make the monthly principal and interest payments since the payment due for May 1, 2008, and each and every month thereafter. (Ex. 2, affidavit para. 7.) According to the affidavit, because the Defendant failed to cure the default the plaintiff elected to accelerate the sums due and owing under the Note. (Ex. 2, affidavit, para. 10.)
On June 22, 2009, the Defendant filed an answer, special defenses and counterclaims. The Defendant's answer admitted the allegations contained in paragraphs 2, 3, 4, 8, 9 and 10. The Defendant alleged that she had insufficient knowledge to plead to paragraphs 1 and 5. Finally, the Defendant denied paragraph 7, which alleges that the town of Ashford may have an interest for unpaid taxes. The allegation and the Defendant's denial of paragraph 7 do not raise a genuine issue as to the Defendant.
The Defendant, in her special defenses, denied that she received notice as alleged in paragraph 6. The plaintiffs' affidavit and the annexed exhibits establish that the plaintiff complied with the notice provisions of the Note and Mortgage. In addition, the Defendant alleges that she did not receive the notices recited in paragraph 11. However, a review of the attached documents demonstrates that the plaintiff served those documents upon the Defendant. Therefore, the denials in the Defendant's answer do not raise a genuine issue of fact. The Defendant filed eleven special defenses and counterclaims. The plaintiff contends that none of these raise material issues of fact or law.
DISCUSSION
Practice Book § 17-49 provides that, "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." Rivera v. Double A Transportation, Inc., 248 Conn. 21, 24 (1999), quoting Miller v. United Technologies Corp., 233 Conn. 732, 744-45 (1995). "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." 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). Nolan v. Borkowski, 206 Conn. 495, 500 (1988). In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the non-moving party. Miller v. United Technologies Corp., 233 Conn. 732, 745 (1995).
The party seeking summary judgment has the burden of showing the absence of any genuine issue of material facts which, under applicable principals of substantive law, entitle it to a judgment as a matter of law. D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434 (1980); Charlemagne v. Progressive Northwest Ins. Co., 63 Conn.App. 596, 599 (2001).
The Defendant did not appear to argue against the plaintiffs' motion, but relied on her objection to the motion. Therefore, the court must consider the defendant's pleadings to determine whether the pleadings raise a material issue of fact or issue of law.
In its complaint, the plaintiff alleges that the Defendant executed a Note in the amount of $174,250 on August 19, 2004, and the Defendant executed the Mortgage on the Property on that same date. The plaintiff alleges it is the holder of the Note and Mortgage. The plaintiff further alleges that the Note and Mortgage are in default, that the Plaintiff has elected to accelerate the indebtedness, that the plaintiff notified the Defendant in writing of her default and that the Defendant has failed, refused and neglected to make payments pursuant to the terms of the Note and Mortgage.
The affidavit establishes that the Defendant has not made a payment on this loan since the payment due for May 1, 2008, and each and every month thereafter. (Exhibit 2, para. 7.) Further, the affidavit indicates that the loan is in default due to the Defendant's failure to make payments in accordance with the terms of the loan. (Exhibit 2, para. 8.) In addition, the affidavit further establishes that the plaintiff notified the Defendant in writing of the default on the Note and Mortgage. (Exhibit 2, para. 9 and Exhibit D to Exhibit 2.)
The proof, which consists of the affidavit and a copy of the notice, establishes well beyond a preponderance of the evidence that the plaintiff has complied with the notice provision of the Note and Mortgage. "Where the question whether proper notice was given depends upon the construction of a written instrument or the circumstances are such as lead to only one reasonable conclusion, it will be one of law . . ." (Internal quotation marks omitted.) Citicorp Mortgage, Inc. v. Porto, 41 Conn.App. 598, 602 (1996). Further, the "mailbox rule" creates a presumption that such letter was received by the addressee where the letter was mailed to a person at the correct address, with the correct postage. Garland v. Gaines, 73 Conn. 662 (1901). Here, the affidavit establishes that notice was "given" or should be "deemed to have been given" as the plaintiff mailed it via first class mail. (See Exhibit D to the affidavit at Exhibit 2.) The general rule of contracts is ". . . that competent persons shall have the utmost liberty of contracting, and that their agreements voluntarily and fairly made shall be held valid and enforced by the Courts." Real Estate Listing Service, Inc. v. Real Estate Commission, 179 Conn. 128, 137-38 (1979), quoting Twin City Pipeline Co. v. Harding Glass Co., 283 U.S. 353, 356 (1931).
When a party issues a promissory note, he agrees to pay the instrument according to its terms. C.G.S. § 42a-3-103(5); § 42a-3-412 (2001). The holder of the note has the power to enforce payment. C.G.S. § 42a-3-301 (2001). As such, when the maker's signature has either been admitted or established, the holder is entitled to recover upon the note and mortgage unless the Defendant establishes a defense. As evidenced by the Mortgage Deed, the Defendant gave the plaintiff a Mortgage to secure the payment of the promissory note. The terms of the Mortgage determine the plaintiffs' right to foreclose the mortgage. New England Savings Bank v. Bedford Realty Corp., 246 Conn. 594, 611, (1998).
The Defendant contends that the plaintiff is not entitled to summary judgment as a matter of law because: (1) The plaintiff has not complied with Practice Book § 17-46; (2) the court (Potter, J.) informed the plaintiff that it had to prove the transaction upon which the claim as "non-holder in possession with rights of a holder" is based. (Judge Potter's Memorandum of Decision dated May 19, 2009, page 5); and (3) that the plaintiff has not complied with the court's order regarding discovery because the plaintiff did not respond to the defendant's interrogatories under oath.
The plaintiff has not established its authority to become trustee for the JP Morgan Chase Bank. "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." (Internal quotation marks omitted.) Federal Deposit Ins. Corp. v. Napert-Boyer Partnership, 40 Conn.App. 434, 445 (1996). "The applicable rule regarding the material facts to be considered on a motion for summary judgment is that the facts at issue are those alleged in the pleadings. New Haven Savings Bank v. LaPlace, 66 Conn.App. 11, 15 (1999)." Fed. Bank v. Krenisky, 72 Conn.App. 700, 718 (2002) (finding that accord and satisfaction pleaded without facts could not raise any genuine issue of material fact, despite affidavit in opposition to motion for summary judgment). This lack of evidence by the plaintiff raises a material issue of fact that must be proven at trial.
The Defendant's first three special defenses challenge the plaintiffs' standing to bring this action. The plaintiffs' failure to establish its authority to become trustee for the JP Morgan Chase Bank, certainly bring into question the plaintiffs' standing to bring this action. The court does not agree that the plaintiffs' standing was determined in the court's decision on the motion to dismiss.
The purpose of a summary judgment procedure is to allow the court to prevent vexatious and dilatory tactics and to facilitate the expeditious disposition of such cases. Ryan v. Dionne, 28 Conn.Sup. 35, 37 (1968). "Motions for summary judgment are designed to eliminate the delay and expense incident to a trial when there is no real issue to be tried." Wilson v. City of New Haven, 213 Conn. 277, 279 (1989).
The court is free to render summary judgment on behalf of the moving party upon a showing of an absence of issues of material facts. In this action, there are material issues of facts. The plaintiff has not established a prima facie case that it is entitled to summary judgment as a matter of law. Therefore, the court denies the motion and sustains the objection to the plaintiffs' motion.
IT IS SO ORDERED.