Opinion
No. CV-07-5004947
September 9, 2008
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (#115)
FACTS
On November 6, 2007, the plaintiff, IndyMac Bank, F.S.B, filed the present foreclosure action against the defendant, Daniel D. Esposito, Jr. In its complaint the plaintiff alleges the following facts. At all times relevant to the foreclosure action, the defendant owned real property situated at 322 Round Hill Road, Salem, Connecticut. On May 25, 2007, the defendant executed a note for a loan in the original principal amount of $285,300. On or about May 25, 2007, the defendant, to secure the obligations arising under the note, executed and delivered to Mortgage Electronic Registration Systems, Inc., as nominee for the plaintiff, an open-end mortgage deed encumbering the property situated at 322 Round Hill Road, Salem, Connecticut. The mortgage was thereafter assigned to the plaintiff by virtue of an assigned mortgage. The plaintiff remains the owner and holder of the mortgage and the note.
Pursuant to the terms of the note, the defendant is obligated to make the monthly payments of principal and interest beginning on July 1, 2007. The defendant has failed to tender the monthly payments of principal and interest due under the note. Accordingly, pursuant to the terms of the note, the defendant is in default, the plaintiff provided written notice to the defendant and the plaintiff has exercised its option to declare the entire principal and interest balance on the note due and payable. Demand for payments of the amounts due has been made upon the defendant and such payment has been refused. Therefore, the plaintiff seeks the remedy of foreclosure of the mortgage.
On March 7, 2008, the defendant filed an answer and special defense. Therein, the defendant asserts the following special defenses: "The Plaintiff has violated the implied covenant of good faith and fair dealing in that the Defendant, Daniel D. Esposito, Jr., upon receipt of Plaintiff's letter indicating he had fallen behind on his mortgage payments on November 1, 2007 contacted Plaintiffs represented on said date and was advised by her that Plaintiff would hold off on any foreclosure of his home but would submit it to a committee and would work with him to try to save his home. Plaintiff thereupon immediately violated said promise and served him with a foreclosure complaint the very next day on November 2, 2007 without further notice thereby acting in bad faith and in violation of the aforementioned implied covenant of good faith and fair dealing." On April 1, 2008, the plaintiff filed a motion for partial summary judgment, as to liability on the complaint, on the ground that there are no genuine issues as to any material fact regarding the plaintiff's ownership of the note and mortgage, and the defendant's default on the payments. On April 16, 2008, the defendant filed an objection to the plaintiff's motion for summary judgment. On April 17, 2008, the plaintiff filed a reply to defendant's objection.
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. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law." (Internal quotation marks omitted.) Cadlerock Joint Venture II, L.P. v. Milazzo, 287 Conn. 379, 390, 949 A.2d 450 (2008). "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, 538 A.2d 1031 (1988).
I Prima Facie Case — Mortgage Foreclosure Action
In a mortgage foreclosure action, "[t]o make out its prima facie case, [the foreclosing party has] to prove by a preponderance of the evidence that it [is] the owner of the note and mortgage and that [the mortgagor has] defaulted on the note." Ocwen Federal Bank, FSB v. Charles, 95 Conn.App. 315, 319 n. 5, 898 A.2d 197, cert. denied, 279 Conn. 909, 902 A.2d 1069 (2006). "Furthermore, the foreclosing party must demonstrate that all conditions precedent to foreclosure, as mandated by the note and mortgage, have been satisfied." (Internal quotation marks omitted.) TD Banknorth, N.A. v. Norwich River, LLC, Superior Court, judicial district of New London at Norwich, Docket No. CV 07 510407 (July 29, 2008, Martin, J.); see also Bank of America, FSB v. Hanlon, 65 Conn.App. 577, 581, 783 A.2d 88 (2001).
In support of its motion for summary judgment, the plaintiff has submitted properly authenticated copies of the note, the open-end mortgage deed, the assignment of mortgage, and the notice of default/intent to accelerate. The plaintiff has also submitted documentary evidence in the form of an affidavit establishing that the plaintiff is the owner and holder of the note and mortgage, that the defendant is in default for failure to make payments.
By way of its answer and special defense, the defendant admits that it executed the note and that the note is secured by a mortgage encumbering the subject property. In its memoranda of law in opposition to the motion for summary judgment, the defendant does not contest that it has defaulted, that the default has not been cured, or that the plaintiff owns both the note and mortgage. The plaintiff, therefore, has sufficiently demonstrated that there is no genuine issue of material fact as to the plaintiff's ownership of the note and the mortgage or as to the defendant's status as a defaulter. The court also finds that the plaintiff's documentary evidence satisfies the conditions precedent to foreclosure. Thus, the plaintiff has established a prima facie case for a mortgage foreclosure action.
II Legal Sufficiency of Special Defense
"When a complaint and supporting affidavits establish an undisputed prima facie case for a foreclosure action, a court must only determine whether [a] special defense is legally sufficient before granting summary judgment." LaSalle National Bank v. Shook, Superior Court, judicial district of New London, Docket No. 549266 (July 13, 2000, Martin, J.), aff'd, 67 Conn.App. 93, 787 A.2d 32 (2001); see also TD Banknorth, N.A. v. Norwich River, LLC, Superior Court, judicial district of New London at Norwich, Docket No. CV 07 510407 (July 29, 2008, Martin, J.).
"[T]he 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.) Emigrant Mortgage Corp. v. D'Agostino, 94 Conn.App. 793, 802, 896 A.2d 814, cert. denied, 278 Conn. 919 (2006). "Summary judgment in favor of the defendant is properly granted if the defendant in its motion raises at least one legally sufficient defense that would bar the plaintiff's claim and involves no triable issue of fact." (Internal quotation marks omitted.) Serrano v. Burns, 248 Conn. 419, 424, 727 A.2d 1276 (1999). "Only one of [a defendant's] defenses needs to be valid in order to overcome [a] motion for summary judgment. [S]ince a single valid defense may defeat recovery, [a movant's] motion for summary judgment should be denied when any defense presents significant fact issues that should be tried." (Internal quotation marks omitted.) Union Trust Co. v. Jackson, 42 Conn.App. 413, 417, 679 A.2d 421 (1996). Furthermore, "[w]here the plaintiff's conduct is inequitable, a court may withhold foreclosure on equitable considerations and principles." (Internal quotation marks omitted.) Loricco Towers Condominium Ass'n. v. Pantani, 90 Conn.App. 43, 51, 876 A.2d 1211, cert. denied, 276 Conn. 925 (2005).
Since the plaintiff has established a prima facie case for the foreclosure action, this court must only determine whether the defendant has raised a legally sufficient special defense. The defendant's special defense alleges that the plaintiff violated the implied covenant of good faith and fair dealing. Specifically, the defendant alleges that he contacted the plaintiff, after receiving notice of the default, a representative of the plaintiff indicated that it would waive immediate foreclosure and try to work with the defendant to save his home and would send it to a committee to accomplish this. The defendant claims the plaintiff immediately violated this promise and served the defendant with a foreclosure complaint the next day. In response, the plaintiff argues that the breach of implied covenant of good faith and fair dealing is not a valid legal or equitable defense to a foreclosure action. The plaintiff cites Fidelity Bank v. Krenisky, 72 Conn.App. 700, 716-17, 807 A.2d 968, cert. denied, 262 Conn. 915, 811 A.2d 1291 (2002) for this proposition.
In Fidelity Bank, the court states the following: "We recently stated that special defenses and counterclaims alleging a breach of an implied covenant of good faith and fair dealing . . . are not equitable defenses to a mortgage foreclosure." Id.; see also Monetary Funding Group, Inc. v. Pluchino, 87 Conn.App. 401, 404 n. 3, 867 A.2d 841 (2005); Barasso v. Rear Still Hill Road, LLC, 81 Conn.App. 798, 807 n. 5, 842 A.2d 1134 (2004). Even assuming that a breach of the implied covenant of good faith and fair dealing were an equitable defense to a mortgage foreclosure, the clear language of the mortgage and the note fails to support the defendant's claim that the plaintiff breached such an implied covenant because the plaintiff has acted in accordance with its rights as set forth in those documents. See Fidelity Bank v. Krenisky, supra, 72 Conn.App. 716-17; see also Washington Mutual Bank, F.A. v. Martins, Superior Court, judicial district of New London, Docket No. CV 03 0564550 (March 23, 2004, Martin, J.); First Union National Bank v. Hollis, Superior Court, judicial district of New London, Docket No. CV 01 0557542 (August 28, 2001, Martin, J.). Furthermore, "[d]efenses dealing with the conduct of the lender after execution of the [mortgage may] not be asserted in a foreclosure action as a defense, as such assertions do not deal with the making, validity or enforcement of the note." (Internal quotations marks omitted.) T.D. Banknorth, N.A. v. Norwich River, LLC, Superior Court, judicial district of New London at Norwich, Docket No. CV 07 510407 (July 29, 2008, Martin, J.). Accordingly, because this special defense does not challenge the making, validity or enforcement of the note or the mortgage, the defendant's special defense is legally insufficient.
CONCLUSION
Based on the foregoing, the court finds that the plaintiff has established a prima facie case in this foreclosure action. The special defense offered by the defendant is legally insufficient to prevent foreclosure. Accordingly, the court hereby grants the plaintiff's motion for summary judgment as to liability.