Opinion
No. CV 05-4003692
January 4, 2006
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT
The plaintiff, DLJ Mortgage Capital, Inc., has moved for summary judgment in this foreclosure action. The defendant mortgagor, Dan Levin, has filed an Objection to the summary judgment.
Facts
In support of its motion the plaintiff, DLJ Mortgage Capital, Inc., has filed two affidavits of Liquenda Alotey, an assistant vice president of Washington Mutual Bank, a copy of the note, mortgage, mortgage assignment and a copy of the answer filed by the defendant, Dan Levin. Those documents establish that by promissory note dated October 2, 2000, the defendant, Dan Levin, promised to pay the amount of $204,000 together with interest and costs of collection to the order of the lender, Washington Mutual Bank, F.A. To secure the note, Levin executed and delivered to Washington Mutual Bank, a mortgage on real property and improvements at 202 Main Street, Deep River, Connecticut. The mortgage was dated and recorded October 2, 2000 in the Deep River land records. By assignment dated September 13, 2003 and recorded in the land records of Deep River on September 13, 2005, Washington Mutual Bank, F.A., assigned the note and mortgage to DLJ Mortgage Capital, Inc., which was substituted as a plaintiff in this action when the court granted a motion to substitute on September 26, 2005.
The plaintiff submitted one affidavit of Ms. Alotey with the Motion for Summary Judgment. The second affidavit was submitted without objection at the oral argument.
The documents submitted by the plaintiff further establish that the defendant Levin has failed and refused to make the monthly principal and interest payments on the note since the payment due for February 1, 2003, and each and every month thereafter and the plaintiff has elected to accelerate the sums due and owing under the note. The amount of $208,690.05 in principal, $27,826.02 in interest, $802.82 in late charges, and other various charges are currently due to the plaintiff from the defendant Levin.
The plaintiff seeks summary judgment as to liability only and, therefore, the exact amounts claimed by the plaintiff are not material to the motion.
On September 21, 2005 the defendant Levin filed an answer in which he admitted that he owned the mortgaged property and claimed insufficient knowledge to either admit or deny the balance of the allegations of the Complaint.
The note signed by Dan Levin provides, in pertinent part:
1. BORROWER'S PROMISE TO PAY
. . . I understand that the Lender may transfer this Note. The Lender or anyone who takes this Note by transfer and who is entitled to receive payments under this Note is called the "Note Holder."
The Mortgage deed signed by Dan Levin provides, in pertinent part:
19. Sale of Note; Change of Loan Servicer
The Note or a partial interest in the Note (together with this Security Instrument) may be sold one or more times without prior notice to Borrower. A sale may result in a change in the entity (known as the "Loan Servicer") that collects monthly payments due under the Note and this Security Instrument. . . .
In opposition to the Motion for Summary Judgment, the defendant Levin has appended his affidavit as well as a copy of a restructuring agreement between himself as the borrower and Washington Mutual Bank, F.A. c/o Fairbanks Capital Corp., its servicer, as the lender, entitled "Stipulation Agreement." The Stipulation Agreement is undated, but the defendant Levin avers that it was dated May 14, 2004. That agreement provides, in pertinent part:
I. Summary of the Loan
The parties hereto acknowledge that the following represent the current indebtedness of the Borrower owed and outstanding to Lender and to be the subject of this Agreement:
A. A mortgage loan in the original principal sum of $204,000 evidenced by a Promissory Note dated October 2, 2002, executed and delivered by the Borrower and secured by an Open-End Mortgage dated, October 2, 2002, executed and delivered by the Borrower, constituting a first mortgage lien against certain premises commonly known as 202 Main Street, Deep River, Connecticut, which mortgage is recorded in the Land Records of the Town of Deep River, Connecticut. Said Promissory Note and Mortgage were subsequently endorsed and assigned to Lender . . .
The dates of the note and mortgage appear to reflect a typographical error, as the note and mortgage were dated October 2, 2000 and not 2002.
II. Acknowledgments
Borrower acknowledges and affirms that:
1. Borrower is legally and validly indebted to Lender with respect to the Loan including accrued interest, late fees, escrow advances and attorneys fees through May 4, 2004, in the amount of $48,546.89" ("Restatement Amount"). The Reinstatement Amount will cure the default . . .
3. The Borrower is in material default of his/her/their obligations under the loan . . .
4. Borrower has been unable or unwilling to pay the Loan as demanded by Lender.
IV. Agreements
In consideration of Lender's forbearance from collection of the Loan, the Borrower hereto agrees as follows:
1. Borrower hereby acknowledges that an "Arrearage" in the amount of "$48,546.89" exists in the Loan as a result of Borrower's failure to make timely payments on the Loan. ("Arrearage Balance.") The Arrearage Balance will cure the default. Borrower does hereby promise to pay to Lender, in lieu of the regularly scheduled payments due through November 24, 2004, the following sums:
a. The sum of $5000 on or before May 24, 2004;
b. The sum of $1291 on or before June 24, 2004, and a like sum due on the twenty-fourth (24th) day of each month thereafter through and including October 24, 2004;
c. The sum of $43,335.82 on or before November 24, 2004;
. . .
Under the terms of the Stipulation Agreement, a failure to make any of the above payments constituted an event of default which permitted the lender to declare all amounts due under the mortgage and note and under the Agreement to be immediately due and payable and permitted it to exercise a number of remedies, including a foreclosure of the original mortgage.
In his affidavit the defendant Levin avers that on May 14, 2004 he sent a check to Fairbanks Capital in the amount of $5000 pursuant to the terms of the restructuring agreement.
Discussion of the Law and Ruling
Practice Book § 17-49 (formerly § 384) 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. Fojtik v. Hunter, 265 Conn. 385, 389, 828 A.2d 596 (2003); Mytych v. May Dept Stores Co., 260 Conn. 152, 158-59, 793 A.2d 1068 (2002); Home Ins. Co. v. Aetna Life Casualty Co., 235 Conn. 185, 202, 663 A.2d 1001 (1995). Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact; D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980); a party opposing 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. Practice Book §§ 17-45, 17-46; Burns v. Hartford Hospital, 192 Conn. 451, 455, 472 A.2d 1257 (1984). In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. Town Bank Trust Co. v. Benson, 176 Conn. 304, 309, 407 A.2d 971 (1978); Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 317, 477 A.2d 1005 (1984). The test is whether a party would be entitled to a directed verdict on the same facts. Batick v. Seymour, 186 Conn. 632, 647, 443 A.2d 471 (1982); CT Page 73 New Milford Savings Bank v. Roina, 38 Conn.App. 240, 243-44, 659 A.2d 1226 (1995).
Summary judgment should only be granted if the pleadings, affidavits and other proof submitted demonstrate that there is no genuine issue as to any material fact. Scinto v. Stam, 224 Conn. 524, 530, cert. denied, 114 S.Ct. 176, 126 L.Ed.2d 136 (1993); Connell v. Colwell, 214 Conn. 242, 246, 571 A.2d 116 (1991). Summary judgment is "designed to eliminate the delay and expense of litigating an issue where there is no real issue to be tried." Wilson v. City of New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).
Connecticut has recognized the following defenses to an action for a foreclosure of a mortgage: usury, Bizzoco v. Chintz, 193 Conn. 304, 309, 476 A.2d 572 (1984); unconscionability of interest rate, Hamm v. Taylor, 180 Conn. 491, 495, 429 A.2d 946 (1980); duress or coercion and material alteration, Second New Haven Bank v. Quinn, 1 Conn.App. 78, 79, 467 A.2d 1252 (1983); payment, Connecticut Bank and Trust Company v. Dadi, 182 Conn. 530, 532, 438 A.2d 733 (1980); discharge, Guaranty Bank Trust Co. v. Darling, 4 Conn.App. 376, 380, 494 A.2d 1216 (1985); fraud in the factum, Heating Acceptance Co. v. Patterson, 152 Conn. 467, 208 A.2d 341 (1965); and lack of consideration, Sonnichsen v. Streeter, 4 Conn. Cir. 659 (1967).
The defendant Levin has raised various facts in his opposition to summary judgment. However, none of them are material because they do not go to any recognized defense to an action for the foreclosure of a mortgage. Instead, in the restructuring agreement, which Levin himself has presented to the court, he acknowledges that the loan was in default as of May 14, 2004, the date on which he signed the agreement, that he owed, in addition to the principal balance, an arrearage of $48,546.89 and that he made only a payment of $5000 pursuant to the restructuring agreement. It is reasonable to infer that he defaulted on the other payments called for in the restructuring agreement. Absent from the affidavit is any statement by defendant Levin that he did make monthly principal and interest payments under the note after February 1, 2003.
The Objection of the defendant Levin is based on four grounds. First, he claims that he was unaware that the note and mortgage were assigned by Washington Mutual Bank, F.A. to DLJ Mortgage Capital, Inc. until sometime just prior to November 14, 2005. This does not raise a material fact. The note and mortgage signed by the defendant Levis specifically provide that they may be assigned without notice to Levin. Moreover, Levin does not claim that the assignment of the mortgage and note interfered in any way with his ability to pay.
The second ground raised by defendant Levin is that the affidavit of Ms. Alotey is inaccurate because it avers that Levin has made no interest or principal payments on the note since February, 2003. This claim is based on Levin's statement that he paid $5000 on May 14, 2004 to Fairbanks Capital pursuant to the terms of a restructuring agreement. Levin's payment pursuant to the restructuring agreement did not constitute a principal and interest payment pursuant to the note, but rather, a $5000 payment on a $48,546.89 arrearage.
Third, defendant Levin argues that Washington Mutual's servicing agent, Fairbanks Capital Co., has, according to the FTC website, recently settled a federal class action pertaining to illegal loan servicing practices, but the plaintiff here has not mentioned the involvement of Fairbanks Capital. Even if this argument were supported by valid evidence, which it is not, the court is at a loss to understand how unspecified "involvement" of the note-holder's servicing agent in other litigation could possibly constitute any defense to this foreclosure action.
Finally, defendant Levin argues that although Ms. Alotey claims to be familiar with the books and records of DLJ Mortgage Capital, Inc., she cannot have any knowledge of those documents because she works for Washington Mutual Bank. It is not enough for a party opposing a motion for summary judgment to merely assert the existence of a disputed issue. Daily v. New Britain Machine Co., 200 Conn. 562, 568, 512 A.2d 893 (1986). Defendant Levin's unsupported claim that Ms. Alotey's affidavit must be inaccurate is insufficient to create an issue of material fact to defeat the summary judgment. This is particularly true because in the restructuring agreement, submitted by defendant Levin himself, he acknowledges that the note and mortgage in question were in default in May 2004. Since he has further admitted to making only a $5000 payment under the restructuring agreement, and does not claim to have made any other payments since 2004, it appears clear that the note is still in default. The defendant Levin has submitted nothing to controvert the act that the plaintiff DLJ Mortgage Capital, Inc. is the current holder of the note and mortgage. Based on the foregoing, the summary judgment motion as to liability only should be and is hereby granted.