Opinion
CV176031365S
10-16-2018
U.S. BANK TRUST, N.A., AS TRUSTEE FOR LSF9 MASTER PARTICIPATION TRUST v. Anne D. GOLDBERG aka Ann Doris Goldberg et al.
UNPUBLISHED OPINION
OPINION
Devine, J.
The plaintiff, U.S. Bank Trust, N.A. as Trustee for LSFG Master Participation Trust (the plaintiff) has filed a motion for summary judgment as to liability only against the defendants Ann D. Goldberg aka Ann Doris Goldberg (hereinafter the "defendant") and NSL Realty, LLC (collectively hereinafter the "defendants"). The parties filed memoranda of law and a hearing was held in New London Judicial District on September 17, 2018. The parties are in general agreement as to the applicable law regarding summary judgment as to liability only in a mortgage foreclosure matter. The court shall not endeavor to "recreate the wheel" but only state the law applicable to the present controversy.
Pursuant to Practice Book § 17-49, "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 Transp., Inc., 248 Conn. 21, 24 (1999) (quoting Miller v. United Techs. Corp., 233 Conn. 732, 744-45 (1995) ). "A material fact is one that would alter the outcome of the case." Southbridge Assocs., LLC v. Garofalo, 53 Conn.App. 11, 14 (1999) (citing Hammer v. Lumberman’s Mutual Cas. Co., 214 Conn. 573, 578 (1990) ). "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 (1988). "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Citations omitted. Internal quotation marks omitted.) Miller v. United Techs. Corp., 233 Conn. 732, 745 (1995).
The party seeking summary judgment "has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principals of substantive law, entitle him to a judgment as a matter of law." D.H.R. Constr. Co. v. Donnelly, 180 Conn. 430, 434 (1980); Charlemagne v. Progressive New. Ins. Co., 63 Conn.App. 596, 599 (2001). "The opposing party to a motion for summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue ... The existence of the genuine issue of material fact must be demonstrated by counter affidavits and concrete evidence." (Emphasis added.) Pion v. S. New England Tel. Co., 44 Conn.App. 657, 663 (1997). See also Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 105 (1994) (holding "the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact"). It is not enough for the opposing party merely to assert the existence of a disputed issue. Daily v. New Britain Mach. Co., 200 Conn. 562, 268 (1986). "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." (Citation omitted.) Wilson v. City of New Haven, 213 Conn. 277, 279 (1989) ).
In a mortgage foreclosure action, to make out its prima facie case, the mortgagee must show that it is the holder of the note. See Equity One, Inc. v. Shivers, 310 Conn. 119 (2013). "[S]tanding to enforce [a] promissory note is [established] by the provisions of the Uniform Commercial Code ... [See] General Statutes § 42a-1-101 et seq. Under [the Uniform Commercial Code], only a ‘holder’ of an instrument or someone who has the rights of a holder is entitled to enforce the instrument." Id. at 126, citing Chase Home Finance, LLC v. Fequiere, 119 Conn.App. 570, 577, cert. denied, 295 Conn. 922 (2010). 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 Nat’l. Bank v. Shook, 2000 Conn.Super. LEXIS 1756, at *4, 2000 WL 1022852, (Conn.Super.Ct. July 13, 2000), aff’d 67 Conn.App. 93 (2001).
The plaintiff contends based on the evidence presented in the affidavits and exhibits submitted with its memorandum of law that there is no issue of material fact that it is the holder of the note and mortgage and that the defendants are in default for non-payment. The defendants by their pleadings have pled insufficient knowledge to the plaintiff’s claims and have left the plaintiff to its proof. The defendants have further claimed by way of special defense that the mortgage is non-enforceable due to the lack of sufficient witnesses.
After reviewing the pleading affidavits and exhibits submitted by plaintiff and legal memorandum the court concludes as follows.
(1) The plaintiff is the holder of the note and mortgage and has the right to enforce the same
There is no question that defendant and her deceased husband received the money in question, that there was a default in payment, and further that the appropriate demand and/or acceleration notices were provided by the plaintiff to the appropriate parties.
The defendants claim that the plaintiff cannot enforce the note because it is not the holder of the note or a person not in possession of the note who is entitled to enforce it under Section 42a-3-309 or 42a-3-418(d). In their claim the defendants rely on the Affidavit of Compliance (in paragraph 6) that the plaintiff is not the holder of the note because it is not in possession of the note. The affidavit of lost note submitted by the plaintiff ("Affidavit of lost Home Equity Line of Credit (HELOC) Agreement"), executed by an officer of the Bank of America, National Association, successor to Fleet Bank, the original mortgagee, indicates that the original HELOC agreement was lost or destroyed and further thus the loss of possession of the HELOC agreement is not a result of a rightful transfer or a lawful seizure of the HELOC agreement. Said affidavit is further supplemented by an indemnification for affidavit of lost Home Equity Line of Credit Agreement (Plaintiff’s Exhibit 2- Exhibit A). The plaintiff is therefore entitled to enforce the note and mortgage and to affect the debt.
(2) The plaintiff is entitled to enforce the note and mortgage deed pursuant to § 47-36aa of the Connecticut General Statutes
The defendants by way of special defense contend that the original mortgage was not properly witnessed in accordance with the Connecticut General Statutes and as such the mortgage is defective. As argued by the plaintiff, the defendants’ special defense fails as a matter of law.
Pursuant to Connecticut General Statutes § 47-36aa the failure of the defendants to raise said claim through the recording of a Lis Pendens on the Colchester Land Records within two (2) years of the recording of the Mortgage is fatal to such a defense.
(a) Conveyancing defects. Any deed, mortgage, lease, power of attorney, release, 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: (1) The instrument contains a defective acknowledgment or no acknowledgment; (2) The instrument is attested by one witness only or by no witnesses;
Connecticut General Statutes § 47-36aa(a)
Here the Mortgage was recorded on August 4, 2000. Thereafter, no Lis Pendens challenging the validity of the Mortgage was recorded. Thus, on August 5, 2002, any defects related to the acknowledgment of or witnesses to the Mortgage were cured and the Mortgage validated.
ORDER
The plaintiff’s motion for summary judgment (# 105.00) as to liability only is hereby granted.