Opinion
CV176030183S
01-03-2020
Catherine Carrier v. Jennifer D’Amico et al.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Knox, Kimberly Ann, J.
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (#146)
Knox, J.
The defendant First County Bank Mortgage Corporation filed a motion of summary judgment, with a supporting memorandum of law and affidavit claiming that the plaintiff’s claims are barred by the statute of limitations, General Statutes § 52-577 and § 52-584. The plaintiff filed a timely response claiming the action was timely brought within the statute of limitations pursuant to General Statutes § 51-571h(c).
I. FACTS
The second revised complaint is set forth in multiple counts against several parties as follows: identity theft pursuant to General Statutes § 51-571h as to Jennifer D’Amico, in count one, fraudulent misrepresentation and conversion as to William Masilotti, in counts two and three, negligence as to JP Morgan Chase Bank, in count four, and negligence against First County Bank Mortgage Corporation, in count five.
The action as to JP Morgan Chase Bank was withdrawn on August 8, 2019.
The plaintiff, Catherine Carrier, in her second revised complaint filed January 11, 2018, alleges the following relevant facts. The defendant, First County Bank, is the secondary mortgage holder on the plaintiff’s former marital home in Milford, Connecticut. The plaintiff and defendant William Masilotti entered into separation agreement which was made an order of the court pursuant to the marital dissolution in 2005. Pursuant to the terms of the agreement, Masilotti retained possession of the marital home located in Milford, Connecticut, and was obligated to refinance two mortgages on that property, one mortgage being with the defendant First County Bank, to remove the plaintiff from any obligations. It is alleged that Masilotti informed the plaintiff that he refinanced the mortgages pursuant to the terms of the agreement and that she was required to convey her interest in the marital home to him, which she did in January 2008. Masilotti, however, had not removed the plaintiff from the second mortgage held by the defendant First County Bank. On or about March 1, 2008, Masilotti instructed the defendant First County Bank to send all information regarding its loan to a new address in Stamford, Connecticut. In May 2015, the plaintiff allegedly discovered that she was still liable on the mortgage with the defendant, and furthermore, that her credit score was negatively impacted because Masilotti had made multiple delinquent payments on the mortgage.
Masilotti is also a defendant to this action; however, the present motion involves only First County Bank Mortgage Corporation. All references herein to the defendant are to First County Bank Mortgage Corporation.
More specifically with regard to count five, the plaintiff alleges the defendant First County Bank acted negligently for the following reasons: the defendant "failed to take any steps to confirm that William Masilotti was authorized to unilaterally change the servicing address ..." (Rev. Comp. para. 21); "failed to contact Carrier to inform her that such a change was made ..." (id., para. 22); and failed to "take any steps to ensure that William Masilotti was authorized to unilaterally change the servicing address ..." (id., para. 23). The defendant moves for summary judgment on count five of the plaintiff’s second revised complaint on the grounds that the plaintiff’s claims are barred by the statute of limitations, and that the complaint is insufficient because plaintiff fails to allege that the defendant’s conduct caused her injury.
II. DISCUSSION
"[S]ummary judgment is proper where the affidavits do not set forth circumstances which would serve to avoid or impede the normal application of the particular limitations period." (Internal quotation marks omitted.) LaBow v. Rubin, 95 Conn.App. 454, 471, 897 A.2d 136, cert. denied, 280 Conn. 933, 909 A.2d 960 (2006). "[T]he issue of whether a defendant owes a duty of care is an appropriate matter for summary judgment because the question is one of law." (Internal quotation marks omitted.) Mozeleski v. Thomas, 76 Conn.App. 287, 290, 818 A.2d 893, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003). "The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand." (Internal quotation marks omitted.) Sic v. Nunan, 307 Conn. 399, 407, 54 A.3d 553 (2012). "Although the issue of causation generally is a question reserved for the trier of fact ... the issue becomes one of law when the mind of a fair and reasonable person could reach only one conclusion, and summary judgment may be granted based on a failure to establish causation." (Internal quotation marks omitted.) Abrahams v. Young & Rubicam, Inc., 240 Conn. 300, 307, 692 A.2d 709 (1997). "Although generally [a] judgment that disposes of only a part of a complaint is not a final judgment ... under Practice Book § 61-3, a party may appeal if the partial judgment disposes of all causes of action against a particular party or parties." (Citation omitted; internal quotation marks omitted.) Manifold v. Ragaglia, 272 Conn. 410, 417-18 n.8, 862 A.2d 292 (2004).
A. Statute of Limitations
The defendant filed a special defense claiming the action was barred by the statute of limitations. In its motion for summary judgment, the defendant argues that the plaintiff’s claims are barred under either General Statutes § § 52-577 or 52-584. At the short calendar hearing on November 18, 2019, the defendant argued that the applicable statute of limitations is § 52-577. The plaintiff, however, argued that the applicable statute of limitations is § 52-584. The court will address both.
General Statutes § 52-577 provides: "No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of." The statute of limitations commences at the time of wrongful act. Certain Underwriters At Lloyds’s, London v. Cooperman, 289 Conn. 383, 957 A.2d 836 (2008). In this case the plaintiff alleges that the wrongful act occurred in January 2008, when the defendant accepted the change of address from Masilotti. Additionally, the defendant sent notices of delinquent payments which commenced in 2005. The plaintiff did not bring this action until April 2017, more than three years from the date of the wrongful act or omission.
General Statutes § 52-584 provides in relevant part: "No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct ... shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of ..." Here again, the plaintiff was liable under the First County mortgage, and knew or should have known, that Masilotti was delinquent on the mortgage payments. The defendant demonstrated that First County delivered at least twenty-two late payment and delinquency payment notices to Catherine Carrier from 2005-2008. Finally, the plaintiff claims the actions of the defendant in accepting a change of address for Masilotti were negligent. The change of address for Masilotti occurred in 2008, and the notices of delinquent or late payments preceded that date. The plaintiff’s action, which was not filed until April 2017, is barred by the statute of limitations. General Statutes § 52-584.
The defendant raised the "applicable statute of limitations," as a special defense, but failed to state which statute applies in their answer and special defenses. Practice Book § 10-3(a). The court has discretion "to overlook violations of the rules of practice in the absence of a timely objection from the opposing party" and "the issue is otherwise put before the trial court and no party is prejudiced by the lapse in pleading." Flannery v. Singer Asset Finance Co., LLC, 312 Conn. 286, 301-02, 94 A.3d 553 (2014). The court notes that there was no objection to the special defense, or a request to revise, and further concludes that the parties had ample opportunity to be heard with regard to the special defense based on the statute of limitations. Unless the plaintiff demonstrates a continuing course of conduct by the defendant First County Bank, the plaintiff’s claim is barred under both General Statutes § § 52-577 or 52-584.
The plaintiff argues in opposition to the defendant’s motion that the statute of limitations is tolled by the continuing course of conduct doctrine, based on the ongoing borrower-lender relationship between the plaintiff and the defendant. "[A] precondition for the operation of the continuing course of conduct doctrine is that the defendant must have committed an initial wrong upon the plaintiff ... Second, there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto." (Citation omitted; internal quotation marks omitted.) Giulietti v. Giulietti, 65 Conn.App. 813, 834, 784 A.2d 905, cert. denied, 258 Conn. 946, 788 A.2d 95 (2001). "Thus, there must be a determination that a duty existed and then a subsequent determination of whether that duty is continuing." (Internal quotation marks omitted.) Stuart v. Snyder, 125 Conn.App. 506, 511, 8 A.3d 1126 (2010), cert. denied, 300 Conn. 921, 14 A.3d 1005 (2011).
"It is well settled ... that [g]enerally there exists no fiduciary relationship merely by virtue of a borrower-lender relationship between a bank and its customer ... Accordingly, the plaintiff must assert and demonstrate additional circumstances that establish more than a bank-depositor relationship." (Citations omitted; internal quotation marks omitted.) Saint Bernard School of Montville, Inc. v. Bank of America, 312 Conn. 811, 836-37, 95 A.3d 1063 (2014). "Numerous courts have concluded that ... the relationship between a borrower and servicer/lender imposes [no] duty of care owed by lending banks and servicers to borrowers." Cenatiempo v. Bank of America, N.A., 333 Conn. 769, 812 (2019). "A lender has the right to further its own interest in a mortgage transaction and is not under a duty to represent the customer’s interest." Southbridge Associates, LLC v. Garofalo, 53 Conn.App. 11, 19, 728 A.2d 1114, cert. denied, 249 Conn. 919, 733 A.2d 229 (1999).
Here, the plaintiff has failed to allege facts demonstrating that there was more than a mere borrower-lender relationship between the parties. Additionally, the plaintiff did not specially plead a continuing course of conduct in avoidance of the defendant’s statute of limitations defense, pursuant to Practice Book § 10-57. Accordingly, the continuing course of conduct doctrine is inapplicable to the present action because the defendant owed no duty of care to the plaintiff on the basis of the borrower-lender relationship between the parties.
The plaintiff’s claim is barred under both General Statutes § § 52-577 and 52-584.
B. Negligence
The defendant further argues that the plaintiff fails to set forth a claim of negligence against the defendant because the complaint does not establish causation. "In negligence cases [such as the present one] in which a tortfeasor’s conduct is not the direct cause of the harm, the question of legal causation is practically indistinguishable from an analysis of the extent of the tortfeasor’s duty [owed] to the plaintiff." (Internal quotation marks omitted.) Ruiz v. Victory Properties, LLC, 135 Conn.App. 119, 124, 43 A.3d 186 (2012), aff’d, 315 Conn. 320, 107 A.3d 381 (2015). "[A]s a general matter, a defendant is not responsible for anticipating the intentional misconduct of a third party ..." Doe v. Saint Francis Hospital & Medical Center, 309 Conn. 146, 172, 72 A.3d 929 (2013). "[L]iability in negligence cannot be based on the failure to do an act which would be futile ..." Egan v. Connecticut Co., 131 Conn. 152, 155, 38 A.2d 282 (1944); cf. Connell v. Colwell, supra, 214 Conn. 255 (finding that the defendant had not breached a duty of care for "failure to warn the [plaintiff] ... because [the plaintiff admitted] that they were already aware of the problem").
First, the plaintiff has failed to demonstrate that the defendant owed a duty of care to the plaintiff Cenatiempo v. Bank of America, N.A., 333 Conn. 769, 812 (2019). Second, there is no causal connection between Masilotti’s change of address and plaintiff’s claimed injury. The defendant demonstrated that it sent voluminous delinquency notices prior to Masilotti changing the servicing address in 2008. The plaintiff’s deposition testimony demonstrates that she would not have received mail concerning the mortgage regardless of Masilotti’s change of address in 2008, because she no longer received correspondence at the prior address and she never provided the defendant with an updated address for herself. The plaintiff was aware that Masilotti did not pay off the First County Bank mortgage, but took no action. In sum, the plaintiff has failed to demonstrate any genuine issue of material fact that Masilotti’s change of address in 2008 caused the alleged injury to her credit rating. Accordingly, the plaintiff has failed to state a claim for negligence against the defendant.
III. CONCLUSION
The defendant First County Bank’s motion for summary judgment is granted for the reason the plaintiff’s claim in count five of the second revised complaint is barred by the statute of limitations, General Statutes § 52-577 and § 52-584; the continuing course of conduct doctrine is inapplicable to the plaintiff’s claims against the defendant; and, there is no genuine of material fact that the defendant owed (or breached) a duty of care to the plaintiff, nor that the defendant’s actions were the actual or proximate cause of the plaintiff’s alleged injury. Accordingly, the defendant’s motion for summary judgment as to count five is hereby granted.