Opinion
No. CV03 08 17 73
September 4, 2003
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
This is a foreclosure action. Presently before the court is a motion for summary judgment filed by the plaintiff, Mortgage Electronic Registration Systems, Inc., on June 23, 2003, and an objection thereto filed by the defendants, Bryan and Janette Rees, on July 9, 2003.
The plaintiff has filed its motion for summary judgment pursuant to Practice Book § 17-44 which provides in part: "In any action, except administrative appeals which are not enumerated in Section 14-7, any party may move for a summary judgment at any time . . ."
The plaintiff initiated this action on May 2, 2003, by filing a one-count complaint. The plaintiff alleges that, on November 20, 2001, the defendants issued a promissory note to Principal Residential Mortgage, Inc. (Principal) in the amount of $124,000.00. To secure the note, the defendants granted the plaintiff, as nominee for Principal, a mortgage on property known as 76 Milton Avenue, West Haven, Connecticut. The plaintiff alleges that it is the current owner of the note and mortgage. It further alleges that the note is in default by virtue of the defendants' nonpayment, and that the plaintiff has elected to accelerate the balance due on the note and foreclose the mortgage.
A nominee is "one designated to act for another as his/her representative in a rather limited sense . . . In its commonly accepted meaning, the word `nominee' connotes the delegation of authority to the nominee in a representative capacity only, and does not connote the transfer or assignment to the nominee of any property in or ownership of the rights of the person nominating him/her." Kolakowski v. Finney, 1983 Mass. App. Div. 360, 363 (Mass.App.Div. 1983); see Evergreen Plantation, Inc. v. Zunamon, 291 So.2d 414, 417 (La.App. 2d Cir. 1974); Winters National Bank Trust Co. v. Saker, 66 Ohio App.2d 31, 35, 20 Ohio Op.3d 76, 419 N.E.2d 890 (1979). It has also been defined as "[a] party who holds bare legal title for the benefit of others or who receives and distributes funds for the benefit of others." Black's Law Dictionary (7th Ed. 1999).
On May 27, 2003, the defendants filed an answer and special defense. In their special defense, the defendants seek a dismissal of the foreclosure action based on the plaintiff's alleged failure to provide the plaintiffs with a notice of default as required by the terms of the note, mortgage and applicable federal law.
On June 23, 2003, the plaintiff filed the present motion for summary judgment on the ground that there is no genuine issue of material fact and the plaintiff is entitled to judgment as a matter of law as it has presented sufficient evidence to demonstrate that it is the current holder of the note and mortgage, that the note is currently in default, and that it has provided the defendant with notice of the default. The plaintiff filed a memorandum of law in support of its motion for summary judgment. Attached to the memorandum are a number of documents relating to the subject note and mortgage, which are offered in support of the motion.
On July 9, 2003, the defendants filed an objection to the motion for summary judgment. The defendants object on the ground that the plaintiff failed to provide proper notice of default and acceleration and that the plaintiff has also failed to establish that it is the proper owner of the note and mortgage. The defendants filed a memorandum of law in support of their objection.
"The standards governing . . . a motion for summary judgment are well established. 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 seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle 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." (Citations omitted; internal quotation marks omitted.) Gaynor v. Payne, 261 Conn. 585, 590-91, 804 A.2d 170 (2002).
The plaintiff contends that it has presented sufficient evidence to demonstrate that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Specifically, the plaintiff contends that it has presented sufficient evidence to demonstrate that it is the owner of the note and that the defendants are currently in default. It further argues that it provided the defendants with a written notice of their default as required by the mortgage, note, and applicable law.
The defendants counter that the plaintiff's motion for summary judgment should be denied. They claim that there is a genuine issue of material fact as to whether the plaintiff is the present mortgage owner. They further argue that there is a genuine issue of material fact as to whether the plaintiff sufficiently complied with the notice requirements of the subject mortgage.
To make out a prima facie case in a foreclosure action, the plaintiff must "prove by a preponderance of the evidence that it [is] the owner of the note and mortgage and that [the defendant has] defaulted on the note." Webster Bank v. Flanagan, 51 Conn. App. 733, 750-51, 725 A.2d 975 (1999). Our Appellate Court has also recognized, however, that "[w]here the terms of the note and mortgage require notice of default, proper notice is a condition precedent to an action for foreclosure." New Haven Savings Bank v. LaPlace, 66 Conn. App. 1, 12, 683 A.2d 1174, cert. denied, 258 Conn. 942, 786 A.2d 426 (2001).
In this case, there is a genuine issue of material fact as to the current ownership of the subject note. The plaintiff has offered the affidavit of V.S. Jaksich, the plaintiff's assistant secretary of default administration. In paragraph three of the affidavit, Jaksich avers that the plaintiff is the current owner of the note and mortgage. Nevertheless, the plaintiff also offers a copy of the note, which lists Principal as the owner. Thus, there is a discrepancy between the affidavit of Jaksich, which indicates that the plaintiff is the owner, and the note, which indicates that Principal is the owner. Despite this discrepancy, the plaintiff has failed to provide any documentation to reconcile the aforementioned evidence. The court, therefore, finds that there is a genuine issue of material fact as to the ownership of the subject note.
The affidavit is in accordance with paragraph five of the complaint, which alleges that the "note and mortgage are now owned by the plaintiff . . ."
Because the court concludes that there is a genuine issue as to the ownership of the note, the court need not address the parties' other arguments.
The plaintiff's motion for summary judgment is denied.
THE COURT
CURRAN, J.