Opinion
WWMCV116003374S.
12-17-2012
PNC BANK, N.A. v. David WAGNER.
UNPUBLISHED OPINION
POTTER, R., J.T.R.
The plaintiff, PNC Bank, National Association (PNC), brings this mortgage foreclosure action against the named defendant, David R. Wagner. PNC alleges the following facts. On January 23, 2001, Wagner and his then wife, Francesca Cintolo, purchased a 106-acre parcel of laid located at 302 Kemp Road, Scotland, Connecticut. On May 26, 2006, Wagner and Cintolo executed and delivered a note in the amount of $483, 200 to National City Mortgage (NCM). On that date, they also executed a mortgage to NCM, pledging a security interest in the property at 302 Kemp Road, Scotland, Connecticut. The mortgage was recorded on June 1, 2006. On September 21, 2006, NCM assigned the note and mortgage to National City Mortgage Corporation (NCMC). The assignment was recorded on October 10, 2006.
In September 2008, Cintolo quitclaimed her entire interest in 302 Kemp Road to Wagner via a quit claim deed dated September 27, 2008. On October 1, 2008, NCMC merged into National City Bank (NCB). Prior to the merger, NCMC had been a subsidiary of NCB. On November 6, 2009, NCB merged into PNC. PNC is the current holder and owner of the original note and mortgage executed by Wagner and Cintolo.
Although this action was originally commenced against both Wagner and Cintolo on March 16, 2011, the plaintiff subsequently withdrew the complaint as to Cintolo on October 25, 2011 (# 128). As a result, the court's use of " the defendant" in this memorandum refers solely to Wagner.
Under the terms of the note and mortgage, Wagner was required to make monthly payments on the first of each month. On December 1, 2008, the defendant stopped making payments on the loan. On November 30, 2010, the plaintiff sent the defendant a demand letter notifying him of his default and the loan's pending acceleration. The demand letter gave the defendant until December 17, 2010 to cure his default.
On March 16, 2011, the plaintiff filed a foreclosure complaint. On September 20, 2011, the defendant filed a revised answer and five special defenses. On June 26, 2012, the plaintiff filed a revised motion for summary judgment as to liability, a memorandum and several exhibits. In its memorandum of law in support, the plaintiff argues that there are no genuine issues of material fact concerning its status as the holder of the defendant's note and mortgage, the defendant's default status, and their entitlement to foreclose on the Kemp Road property. The defendant filed an objection and memorandum in opposition on August 2, 2012. On that date, the defendant also filed a " statement of material facts in dispute, " but submitted no evidence in support of his opposition. The plaintiff filed a memorandum and exhibit in reply to the defendant's objection to its motion on August 22 and 24, 2012. The matter was heard at short calendar on September 10, 2012.
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." (Internal quotation marks omitted.) Brooks v. Sweeney, 299 Conn. 196, 210, 9 A.3d 347 (2010). " The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).
" In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact ... Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008). " As the party moving for summary judgment, the [movant] is required to support its motion with supporting documentation, including affidavits." Heyman Associates No. 1 v. Insurance Co. of Pennsylvania, 231 Conn. 756, 796, 653 A.2d 122 (1995). Likewise, " [t]he existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence." (Internal quotation marks omitted.) Little v. Yale University, 92 Conn.App. 232, 235, 884 A.2d 427 (2005), cert. denied, 276 Conn. 936, 891 A.2d 1 (2006). " [B]efore a document may be considered by the court [in connection with] a motion for summary judgment, there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be. The requirement of authentication applies to all types of evidence, including writings ... Conn.Code Evid. § 9-1(a), commentary. Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including, but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be." (Internal quotation marks omitted.) Gianetti v. Health Net of Connecticut, Inc., 116 Conn.App. 459, 466-67, 976 A.2d 23; accord New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005).
" It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact ... are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., supra, 285 Conn. at 11. " Such assertions are insufficient regardless of whether they are contained in a complaint or a brief." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 129 Conn.App. 481, 497, 21 A.3d 889, cert. granted in part, 302 Conn. 934, 28 A.3d 991 889 (2011); accord Shukis v. Board of Education, 122 Conn.App. 555, 565, 1 A.3d 137 (2010).
In his objection to the plaintiff's motion, the defendant challenges PNC's " capacity to sue, including its standing as a successor to the original holder of the alleged mortgage instrument." The defendant argues that standing is a factual issue to be determined at trial and necessitates the denial of summary judgment.
" The question of standing implicates a court's subject matter jurisdiction and, as such, may be raised at any time during the proceedings ... Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy ..." (Citations omitted; internal quotation marks omitted.) Ulster Savings Bank v. 28 Brynwood Lane, Ltd, 134 Conn.App. 699, 705, 41 A.3d 1077 (2012).
" It is well established that the holder of a promissory note secured by a mortgage automatically has standing and thus the right to enforce the mortgage. The mortgage follows the debt, in the sense that the assignment of the note evidencing the debt automatically carries with it the assignment of the mortgage. New Milford Savings Bank v. Jajer, 244 Conn. 25, 266 (1998), citing, inter alia, Restatement (Third) Property, Mortgages § 1.1 ..." (Citations omitted; internal quotation marks omitted.) Ulster Savings Bank v. 28 Brynwood Lane, Ltd., Superior Court, judicial district of Stamford-Norwalk, Docket No. CV 05 4007323 (May 27, 2010, Jennings, J.T.R.), aff'd., 134 Conn.App. 699, 41 A.3d 1077 (2012). " [A] holder of a note is presumed to be the owner of the debt, and unless the presumption is rebutted, may foreclose the mortgage under § 49-17. The possession by the bearer of a note indorsed in blank imports prima facie that he acquired the note in good faith for value and in the course of business, before maturity and without notice of any circumstances impeaching its validity. The production of the note establishes his case prima facie against the makers and he may rest there ... It [is] for the defendant to set up and prove the facts which limit or change the plaintiff's rights." (Internal quotation marks omitted.) RMS Residential Properties, LLC v. Miller, 303 Conn. 224, 231-32, 32 A.3d 307 (2011).
In the present case, the plaintiff submitted numerous exhibits which establish its status as a holder of the mortgage and note. It was then incumbent on the defendant to rebut the plaintiff's presumption of ownership. Having failed to submit any evidence in opposition to the plaintiff's motion for summary judgment, that presumption persists. As a result, PNC has standing to foreclose.
See the discussion of PNC's status as owner of the note in Part III, infra, for further elaboration.
Having determined that the plaintiff has standing to bring this foreclosure action, the court continues to the merits of the foreclosure action. " 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). Because the viability of a single special defense necessitates a denial of the plaintiff's motion for summary judgment as to liability, the court will address the defendant's five special defenses seriatim before proceeding to the merits of the plaintiff's foreclosure complaint.
In his first and second special defenses, the defendant alleges fraud, intentional and negligent misrepresentation in the execution of the note and deed, and a breach of fiduciary duty. In reply, the defendant argues that these claims are barred by the doctrine of res judicata, referring the court to the decision in Wagner v. National City Bank, United States District Court, Docket No. 3:08-cv-01828 (JCH) (D.Conn. May 24, 2010) (# 141, Ex. 4). The defendant objects, seeming to argue that the district court ruling is not preclusive because the court addressed only the issue of whether an agent of the bank made misrepresentations during the negotiation of the mortgage, and passed on the issue of the validity of the mortgage.
Preliminarily, the court notes that " summary judgment is an appropriate vehicle for raising a claim of res judicata ..." (Citations omitted.) Joe's Pizza, Inc. v. Aetna Life & Casualty Co., 236 Conn. 863, 867 n. 8, 675 A.2d 441 (1996). " Because res judicata or collateral estoppel, if raised, may be dispositive of a claim, summary judgment [is] the appropriate method for resolving a claim of res judicata." Jackson v. R.G. Whipple, Inc., 225 Conn. 705, 712, 627 A.2d 374 (1993); see also Zanoni v. Lynch, 79 Conn.App. 325, 338, 830 A.2d 314, cert. denied, 266 Conn. 928, 837 A.2d 803 (2003).
In Wagner v. National City Bank, the defendant in this case, David Wagner, filed a four-count complaint on July 18, 2008 against National City Bank. As noted above, on November 6, 2009, NCB merged into PNC, the plaintiff in this case. In the defendant's district court complaint, he sought damages and equitable relief to remedy alleged fraud, intentional and negligent misrepresentation and a breach of fiduciary duty. Granting summary judgment in favor of NCB, Judge Hall found that Wagner's claim— " that National, or its agents, fraudulently led him to believe that his mortgage was only secured by the house and five acres, and that this fraud caused him damage in the delays to the Addison Ridge project" — was barred, as a matter of law, by an accord and satisfaction that Wagner and National reached in February 2008.
" [T]he doctrine of res judicata precludes state court relitigation of matters fully litigated in federal court; McCarthy v. Warden, 213 Conn. 289, 295, 567 A.2d 1187 (1989)." (Internal quotation marks omitted.) Otero v. Housing Authority of the City of Bridgeport, Superior Court, judicial district of Fairfield, Docket No. 99 0366854 (March 18, 2003, Rush, J.). " Under the doctrine of res judicata ... a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action on the same claim. A judgment is final not only as to every matter which was offered to sustain the claim, but also as to any other admissible matter which might have been offered for that ... The judicial doctrines of res judicata and collateral estoppel are based on the public policy that a party should not be able to relitigate a matter which it already has had an opportunity to litigate ... Stability in judgments grants to parties and others the certainty in the management of their affairs which results when a controversy is finally laid to rest ... The conservation of judicial resources is of paramount importance as our trial dockets are deluged with new cases daily." (Citations omitted; internal quotation marks omitted .) Himmelstein v. Bernard, 139 Conn.App. 446 (2012).
" Because the operative effect of the principle of claim preclusion ... is to preclude relitigation of the original claim, it is crucial to define the dimensions of that original claim ... [T]he claim [that is] extinguished includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction ... out of which the action arose ... [This] transactional test ... provides a standard by which to measure preclusive effect of a prior judgment, which we have held to include any claims relating to the cause of action which were actually made or might have been made ... [E]ven though a single group of facts may give rise to rights for several kinds of relief, it is still a single cause of action." (Citation omitted; emphasis added.) Id.; Savvidis v. Norwalk, 129 Conn.App. 406, 410-11, 21 A.3d 842, cert. denied, 302 Conn. 913, 27 A.3d 372 (2011).
In the present case, the defendant alleges fraud, intentional and negligent misrepresentation and a breach of fiduciary duty stemming from the execution of the note and mortgage. While the defendant argues that the court did not address the validity of the mortgage in the prior case, that assertion has no effect on whether his claim is now barred. Res judicata bars the relitigation of any other admissible matter which might have been offered with respect to all or part of the transaction out of which the action arose. In this case, a side-by-side comparison of the defendant's answer and special defenses with his 2008 federal complaint is telling. Indeed, the defendant appears to have copied, substantially verbatim, from his prior complaint concerning the execution of the note and mortgage. Even if the court were to assume that the defendant's current claims are different from those in the federal case, as the defendant urges, they arise out of a single group of facts— the execution of the note and mortgage— and would be additionally barred by the transactional test. Consequently, the defendant's first and second special defenses are res judicata, and the defendant is estopped from raising them.
In his third defense, the defendant alleges that Francesca Cintolo is an improperly named party to this action because she did not sign the note or mortgage. The court notes the presence of Cintolo's initials on each page of the mortgage deed, as well as her signature on the final page beside the defendant's (Ex. B). PNC, however, withdrew the foreclosure complaint as to Cintolo on October 25, 2011 (# 128).
Exhibit citations throughout refer to those attached to PNC's filing # 142, unless otherwise noted.
" Because courts are established to resolve actual controversies, before a claimed controversy is entitled to a resolution on the merits it must be justiciable. Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute ... (2) that the interests of the parties be adverse ... (3) that the matter in controversy be capable of being adjudicated by judicial power ... and (4) that the determination of the controversy will result in practical relief to the complainant." (Emphasis added.) Emerick v. Connecticut Dept. of Public Health, Superior Court, judicial district of Hartford, Docket No. CV 11 50035336 (November 5, 2012, Miller, J.) (striking a single count as non-justiciable because no practical relief could be afforded). In light of PNC's withdrawal of the complaint as to Cintolo, no actual controversy persists, and the defendant's third special defense is nonjusticiable.
Next, the defendant alleges that the assignment of the note and mortgage from NCM to NCB was invalid. The plaintiff submitted a variety of exhibits in support of its motion which establish the following. On May 26, 2006, the defendant executed a note and mortgage in favor of NCM (Ex. B). On September 21, 2006, NCM assigned the defendant's note and mortgage to NCB (Ex. C). The assignment was recorded on October 10, 2006, and occurred in the presence of a notary public (Ex. C). " An acknowledgment before a notary public serves to authenticate the instrument by furnishing formal proof, through the action of the public official taking acknowledgment, that the instrument was actually executed by the person whose signature appears on it. Commercial Credit Corp. v. Carlson, 114 Conn. 514, 517, 159 A. 352 (1932)." (Internal quotation marks omitted.) Webster Bank v. Flanagan, 51 Conn.App. 733, 738, 725 A.2d 975, 980 (1999).
In reply, the defendant asserts, " [u]pon information and belief, " that " the purported assignment was accomplished by so-called ‘ robo-signings' and thereinafter was an invalid assignment ." However, " [t]he existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence." (Internal quotation marks omitted.) Gianetti v. Health Net of Connecticut, Inc., supra, 116 Conn.App. at 465. " [G]enerally an affidavit by a party's attorney should not be used to oppose a summary judgment motion ..." (Citation omitted.) 2830 Whitney Avenue Corp. v. Heritage Canal Development Associates, Inc., 33 Conn.App. 563, 567, 636 A.2d 1377 (1994). When a party moves for summary judgment " and there [are] no contradictory affidavits, the court properly [decides] the motion by looking only to the sufficiency of the [movant's] affidavits and other proof." Heyman Associates No. 1 v. Insurance Co. of Pennsylvania, 231 Conn. 756, 795, 653 A.2d 122 (1995).
" ‘ Robo-signing’ is the name given to the practice of an employee of a mortgage servicing company signing thousands of documents and affidavits without verifying the information contained in the document or affidavit. Rather than actually reviewing the factual background of each document, robo-signers assume the paperwork to be correct and sign it automatically, like robots." HSBC Bank USA, Nat. Association v. Oakes, Superior Court, judicial district of New Britain, Docket No. CV 11 6009207 (August 7, 2012, Sheridan, J.) [ 54 Conn. L. Rptr. 556].
In the present case, PNC's evidence is sufficient to establish the validity of the assignment from NCM to NCB. Conversely, the defendant submitted no evidence in objection to the plaintiff's motion. Because " mere assertions" are not enough, and PNC carried its initial burden of proof, the defendant's fourth special defense must fail.
Finally, the defendant alleges that the mortgage and note are defective for want of a valid attestation by two witnesses as required by General Statutes § 47-5. Subsection (a)(4) of § 47-5 requires that all conveyances of land be " attested to by two witnesses with their own hands." However, General Statutes § 47-36aa, the validation statute, exists to correct defects or omissions in the formalities required by § 47-5. Section 47-36aa(a) provides, in relevant part: " Any deed, mortgage ... assignment or other instrument made for the purpose of conveying, leasing, mortgaging or affecting any interest in real property in this state recorded after January 1, 1997, which instrument contains any one or more of the following defects or omissions is as valid as if it had been executed without the defect or omission unless an action challenging the validity of that instrument is commenced and a notice of lis pendens is recorded in the land records of the town or towns where the instrument is recorded within two years after the instrument is recorded. " (Emphasis added.) Subsection (a)(2) of § 47-36aa lists, as one covered defect or omission, that the " instrument is attested by one witness only or by no witnesses."
" Summary judgment may be granted where the claim is barred by the statute of limitations." Doty v. Mucci, 238 Conn. 800, 806, 679 A.2d 945 (1996). Summary judgment is appropriate on statute of limitation grounds when the " material facts concerning the statute of limitations [are] not in dispute ..." Burns v. Hartford Hospital, 192 Conn. 451, 452, 472 A.2d 1257 (1984). " [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).
In the present case, as the plaintiff has proven by way of Heidi Breslin's affidavit (# 143), no action challenging the validity of the mortgage in this case was brought and recorded in the land records within two years from the date of the original recording on June 1, 2006. Thus, even if the court assumes arguendo, that the defendant's allegation of improper attestation is true, the action would be time-barred. The defendant does not dispute, and submitted no evidence in objection, to rebut the notion that § 47-36aa applies to correct the defect in this case, or to cast doubt on the accuracy of Breslin's title search. Consequently, this special defense fails. Having addressed the defendant's special defenses, and concluded that none serve to impede the plaintiff's motion, the court proceeds to the merits of the foreclosure complaint.
In its memorandum of law, PNC argues that it has established a prima facie case for mortgage foreclosure because there are no issues of material fact regarding ownership of the note and mortgage, because the defendant is delinquent on the mortgage, and because PNC has satisfied all of the conditions precedent to foreclosure. " 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 ... 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; citations omitted.) Constitution State Mortgage, LLC v. Deco Drive, LLC, Superior Court, judicial district of New London, Docket No. CV 10 6005876 (May 16, 2012, Devine, J.); see also Franklin Credit Management Corp. v. Nicholas, 73 Conn.App. 830, 838, 812 A.2d 51 (2002), cert. denied, 262 Conn. 937, 815 A.2d 136 (2003).
In the present case, PNC submitted a memorandum accompanied by properly authenticated copies of the promissory note and mortgage, each signed by the defendant (Exs.A, B). The plaintiff also submitted an authenticated copy of the notice of default and acceleration that was mailed to the defendant (Ex. F). The defendant's memorandum of law in opposition does not contest that he defaulted on the mortgage and that the default has not presently been cured. The plaintiff submitted an affidavit from a mortgage officer at PNC attesting to the fact that the defendant missed his payment on December 1, 2008, over four years ago, and has not made a payment since (# 142, Aff.Thomas, ¶ 12).
While the defendant disputes that PNC owns both the note and mortgage, he has not submitted evidence to rebut PNC's claim of ownership. PNC, on the other hand, submitted the following authenticated documents alongside the note and mortgage: (1) the assignment of mortgage evidencing the transfer of the defendant's note and mortgage from NCM to NCMC on September 21, 2006 (Ex. C); (2) the Ohio merger certificate establishing the merger of NCMC into NCB on October 1, 2008 (Ex. D); and (3) a letter from the comptroller of the currency, and certificate from PNC secretary, George P. Long, III, confirming the merger of NCB into PNC on November 6, 2009 (Ex. E).
" Acquisition of a note through merger and change of name permits the successor entity to sue for foreclosure either in its own name or that of its predecessor. Washington Mutual Bank v. Walpuck, 134 Conn.App. 446, 447 (2012)." First Niagara Bank v. Wysocki, Superior Court, judicial district of Tolland, Docket No. CV 11 6004291 (May 23, 2012, Sferrazza, J.). Thus, the plaintiff has sufficiently demonstrated that there are no genuine issues of material fact as to the ownership of the note and mortgage, and as to the defendant's status in default on the loan.
PNC has also submitted evidence that it satisfied conditions precedent to foreclosure by timely mailing a notice of default and acceleration to the defendant (Ex. F). The note signed by the defendant provides in pertinent part: " If I am in default, the note holder may send me a written notice telling me that if I do not pay the overdue amount by a certain date, the note holder may require me to pay immediately the full amount of principal which has not been paid and all the interest that I owe on that amount." (Ex. A.) Similarly, the mortgage states that the lender " shall give notice to borrower prior to acceleration following borrower's breach of any covenant or agreement in this security instrument ... The notice shall specify (a) the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to borrower, by which the default must be cured; and (d) that failure to cure the default on or before that date specified in the notice may result in acceleration of the sums secured by this security instrument and foreclosure or sale of the property." (Emphasis added.) (Ex. B.)
The notice of acceleration mailed to the defendant on November 30, 2010, stated that the defendant was in default of $566, 806.04 as of December 1, 2008. The notice specifically instructed the defendant how to cure the default and gave him until December 17, 2010, — seventeen days — to cure the default. Preliminarily, it appears that PNC has not satisfied all conditions precedent to foreclosing on the defendant's mortgage because the notice letter provided a date of less than thirty days within which the default could be cured. Thus, the court must determine what effect, if any, the plaintiff's notice defect has on the legitimacy of this action.
The court notes that the defendant does not raise the issue in his answer, special defenses or objection to the plaintiff's motion for summary judgment. Despite the possibility of waiver, the court elects to address the issue.
" [I]t is well established in our jurisprudence that [f]oreclosure is peculiarly an equitable action, and the court may entertain such questions as are necessary to be determined in order that complete justice may be done ..." (Internal quotation marks omitted.) Monetary Funding Group, Inc. v. Pluchino, 87 Conn.App. 401, 405, 867 A.2d 841 (2005). " [I]n a foreclosure action, which is an equitable proceeding, ... the trial court may examine all relevant factors to ensure that complete justice is done ... The determination of what equity requires in a particular case, the balancing of the equities, is a matter for the discretion of the trial court. (Internal quotation marks omitted.) LaSalle National Bank v. Freshfield Meadows, LLC, 69 Conn.App. 824, 833, 798 A.2d 445 (2002)." Fidelity Bank v. Krenisky, 72 Conn.App. 700, 705, 807 A.2d 968, cert. denied, 262 Conn. 915, 811 A.2d 1291 (2002).
Our Appellate Court considered a similar defect in notice provided to the mortgagor in Fidelity Bank v. Krenisky, supra, 72 Conn.App. at 700. In Krenisky, the foreclosing bank sent a notice of acceleration to the defendant per the requirements of the mortgage. The notice was deficient in that it failed to expressly set forth information regarding the defendants' right to reinstatement after acceleration. The court wrote that, " [n]otice provisions in mortgage documents usually require default notices to contain specific information, which serves a very clear and specific purpose; it informs mortgagors of their rights so that they may act to protect them. Therefore, when the terms of the note and mortgage require notice of default, proper notice is a condition precedent to an action for foreclosure ..." (Internal quotation marks omitted; citation omitted.) Id., at 710. Where the notice of default did not comply with the notice provision contained in the defendant's mortgage, it was necessary for the court to determine " if, in fact, the [defendant] had actual notice of that right." Id.
Affirming the trial court's granting of summary judgment in favor of the foreclosing bank, the court— " [m]indful of [its] obligation to view the evidence in the light most favorable to the defendants" — concluded that " literal enforcement of the relevant notice provision would serve no purpose because the defendants had actual notice of their right to reinstate the mortgage after acceleration. Further, the plaintiff's deficient written notice caused no harm to the defendants. See Aetna Casualty & Surety Co. v. Murphy, 206 Conn. 409, 418, 538 A.2d 219 (1988) (" [l]iteral enforcement of notice provisions when there is no prejudice is no more appropriate than literal enforcement of liquidated damages clauses when there are no damages"). Moreover, the plaintiff's failure to provide sufficient written notice does not frustrate the purpose of the notice provision because the defendants had actual notice of their right to reinstate the mortgage and acted to protect that right, as demonstrated before the court. See Lauer v. Zoning Commission, 220 Conn. 455, 462, 600 A.2d 310 (1991)." Id., at 712-13.
In the present case, PNC did, in fact, send a notice of acceleration to the defendant which provided him with actual notice of the event of default. Although the cure date was only seventeen days, PNC did not attempt to foreclose prematurely. Indeed, it waited over one hundred days from the mailing before initiating the instant foreclosure action. During that time period, the defendant did not elect to cure the default and has not since. Additionally, the defendant incurred neither damage nor prejudice from the notice defect. The actual notice provided does not frustrate the purpose of the notice provision, and, to find otherwise would hinder justice and equity. PNC has proven that there are no genuine issues of material fact with respect to satisfying the conditions precedent to foreclosing on the mortgage. Consequently, the plaintiff has established a prima facie case for a mortgage foreclosure.
" Even if the notices of demand, default and/or acceleration did not technically meet the condition precedent language of the mortgage note and mortgage deed, case law holds that if the defendants had actual notice of their right to reinstate the mortgage after the debt had been accelerated and actual notice of the event of default, such actual notice is sufficient to comply with the condition precedent requirements of Connecticut law ..." (Citation omitted; emphasis added.) North Water, LLC v. North Water Street Tarragon, LLC, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV 07 5004758 (October 13, 2009, Tierney, J.T.R.).
PNC has established that it is the owner of the mortgage and note, that the defendant is in default, and that it has satisfied the appropriate prerequisites to bringing the present action. The defendant's special defenses fail because they are res judicata, nonjusticiable, barred by a statute of limitations, or because he did not carry the burden that PNC's production of evidence imposed upon to him. For the foregoing reasons, the plaintiff's motion for summary judgment is granted.