Opinion
MMXCV166016644
04-11-2018
WELLS FARGO BANK, N.A. v. Susan A. BAKER et al.
UNPUBLISHED OPINION
OPINION
Aurigemma, J.
The plaintiff, Wells Fargo Bank, N.A., has moved for summary judgment on the grounds that there are no issues of material fact and the plaintiff is entitled to judgment as to liability.
Factual and Procedural History
On October 22, 2009, the defendant, Susan A. Baker (" Baker" ), executed a promissory note in the principal amount of $380,036.00 payable to the order of Wells Fargo Home Mortgage, a Division of Wells Fargo Bank, N.A. (the " Note" ). On the same date to secure the Note, Baker mortgaged to William Pitt Mortgage, LLC a piece or parcel of land together with all improvements thereon, known as 17 Acorn Drive, East Haddam, Connecticut. (The " Mortgage" ). Said Mortgage was assigned to Wells Fargo Bank, N.A.
Baker failed to pay the installments due on the Note and the plaintiff accelerated the indebtedness due under the Note and commenced this action. Baker filed an Answer and Special Defenses.
In response to the motion for summary judgment, Baker filed an affidavit which states, in pertinent part:
2. That on or about October 22, 2009, I mortgaged my property at 17 Acorn Drive, East Haddam, Connecticut to William Pitt Mortgage, LLC for the sum of three hundred eighty thousand thirty-six dollars ($380,036.00) which was subsequently assigned on the same date to Wells Fargo Bank, N.A. (hereinafter referred to as " Wells Fargo" );
3. That my income and ability to pay said mortgage is derived from my self-employment as the owner of a one-vehicle truck hauling company for which third party drives for me;
4. That by 2015, the income I derived from my business was insufficient to pay the mortgage and my basic living expenses;
5. That I preemptively contacted Wells Fargo in an effort to seek relief;
6. That Wells Fargo in conjunction with the United States Secretary of Housing and Urban Development(hereinafter referred to as " HUD" ) induced me to modify my mortgage and incur additional debt through a second mortgage to HUD in the sum of $105,562.92 dated September 1, 2015, and recorded September 28, 2015.
At oral argument on the motion for summary judgment the plaintiff’s counsel argued that the defendant had obtained an FHA HAMP modification, that her payments had been reduced from $2,096 per month to $1,271 per month and that there were no payments due under the second mortgage, which is used in most or all HAMP modifications to aid the mortgagor and was not payable until the sale of the house.
The court ruled that if Baker’s mortgage payments had in fact been reduced as argued by the plaintiff’s counsel, then her arguments in opposition to summary judgment were ludicrous. However, the affidavit submitted by the plaintiff did not address the payment reduction or the workings of HAMP and, therefore, could not form the basis of summary judgment. The court denied the motion for summary judgment without prejudice and gave the plaintiff until March 9, 2018 to provide a supplemental affidavit which included reference to the FHA RAMP representations made by counsel. The court gave Baker until March 29, 2018 to file a response to the supplemental affidavit. The court also invited each party to request another oral argument. The plaintiff did file a supplemental affidavit, which provided, in pertinent part:
6. On September 13, 2015, the Borrower, Susan A. Baker, executed and delivered a Loan Modification Agreement (" HAMP Agreement" ). Under the terms of said HAMP Agreement the Unpaid Principal of the Original Note went from $350,741.09 to $274,652.22 as reflected on Page 1 of the HAMP Agreement. In conjunction of the execution of The HAMP Agreement, a Subordinate Mortgage (" HUD partial claim" ) in the amount of $105,562.92 of which $75,317.79 is unpaid principal was executed by Borrower [Baker]. (The HUD partial claim was executed and delivered to the Secretary of Housing and Urban Development and is referenced as a subsequent encumbrance in the Complaint.) The interest rate, which was 5.125% in the Note was modified to 3.75% in the HAMP Agreement as set forth in paragraph 2 of the HAMP Agreement. Further, the principal and interest monthly payment that was $2,069.25 in the Note was reduced to $1,271.96 as further set forth in paragraph 2 of the HAMP Agreement.
Baker did not file any response to the plaintiff’s supplement to its motion for summary judgment. Since neither party requested additional argument after the plaintiff filed its supplement to the original summary judgment motion, the court hereby grants the summary judgment without further argument for the reasons set forth below.
Discussion of the Law and Ruling
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 Transportation, Inc., 248 Conn. 21, 24, 727 A.2d 204 (1999) (quoting Miller v. United Technologies Corp., 233 Conn. 732, 744-45, 600 A.2d 810 (1995) ). A material fact is one that would alter the outcome of the case. Southbridge Associates, LLC v. Garofalo, 53 Conn.App. 11, 14, 728 A.2d 1114 (1999), (citing Hammer v. Lumberman’s Mutual Casualty Co., 214 Conn. 573, 578, 573 A.2d 699 (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, 538 A.2d 1031 (1988). In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. Miller v. United Technologies Corp., 233 Conn. 732, 745, 600 A.2d 810 (1995).
The party seeking summary judgment has the burden of showing the absence of any genuine issue of material facts which, under applicable principals of substantive law, entitle him to a judgment as a matter of law. D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980); Charlemagne v. Progressive Northwest Ins. Co., 63 Conn.App. 596, 599, 777 A.2d 741 (2001). The party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 105, 639 A.2d 507 (1994). The existence of a genuine issue of material fact must be demonstrated by counter-affidavits and concrete evidence. Pion v. Southern New England Telephone Co., 44 Conn.App. 657, 663, 691 A.2d 1107 (1997). " It is not enough for the opposing party merely to assert the existence of a disputed issue." Daily v. New Britain Machine Co., 200 Conn. 562, 569, 512 A.2d 893 (1986). Likewise, a party’s conclusory statements in affidavits or other pleadings do not constitute evidence sufficient to establish the existence of disputed material facts. Gupta v. New Britain General Hospital, 239 Conn. 574, 583, 687 A.2d 111 (1996).
The fundamental purpose of summary judgment is preventing unnecessary trials. See Orenstein v. Old Buckingham Corp., 205 Conn. 572, 574, 534 A.2d 1172 (1987) (" [s]ummary judgment procedure, generally speaking, is an attempt to dispose of cases in a manner which is speedier and less expensive for all concerned than a full-dress trial" ). If a plaintiff is unable to present sufficient evidence in support of an essential element of his cause of action at trial, he cannot prevail as a matter of law. See, e.g., Santopietro v. New Haven, 239 Conn. 207, 225, 682 A.2d 106 (1996) (directed verdict appropriate if evidence is " so weak" that " the jury could not reasonably and legally have found that the plaintiff had proved each of [the essential] elements" ); Furstein v. Hill, 218 Conn. 610, 627, 590 A.2d 939 (1991) (directed verdict appropriate " when the plaintiff has failed to produce any evidence of an essential element of his cause of action" ).
To avert these types of ill-fated cases from advancing to trial, following adequate time for discovery, a plaintiff may properly be called upon at the summary judgment stage to demonstrate that he possesses sufficient counterevidence to raise a genuine issue of material fact as to any, or even all, of the essential elements of his cause of action. See, e.g., Robinson v. Cianfarani, 314 Conn. 521, 524-25, 107 A.3d 375 (2014) (" [a] material fact ... [is] a fact which will make a difference in the result of the case" ); Rusco Industries, Inc. v. Hartford Housing Authority, 168 Conn. 1, 6, 357 A.2d 484 (1975) (test for granting summary judgment " is resolved by applying to the established facts the same criteria as used in determining whether a party would be entitled to a directed verdict on the same facts" ); see also Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 320, 77 A.3d 726 (2013) (" [w]hen documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue" [internal quotation marks omitted] ).
If a defendant’s well supported motion for summary judgment shows that there is no genuine factual dispute as to multiple essential elements of a plaintiff’s cause of action, such that none of them reasonably could be resolved in the plaintiff’s favor at trial, the viability of that plaintiff’s case is not improved if he only responds with sufficient counterevidence to call some of those essential elements back into question. Put differently, by raising a genuine issue of fact as to only some of the essential elements under attack, the plaintiff has not altered the potential outcome of his case. See Santopietro v. New Haven, supra, 239 Conn. at 225, 682 A.2d 106. It logically follows that, in evaluating a defendant’s motion for summary judgment, a trial court’s task does not necessarily end upon its finding that a genuine factual dispute exists as to one or some essential elements of a plaintiff’s cause of action. If a defendant has substantively addressed additional essential elements in support of his motion, so too should the trial court in determining whether summary judgment is appropriate.Stuart v. Freiburg, 316 Conn. 809, 822-24, 116 A.3d 1195.
The affidavit of Diane F. Duckett, Vice President Loan Documentation of Wells Fargo Bank, N.A., proves all of the allegations of the complaint: Defendant Susan Baker executed the Note and Mortgage; she is in default on her obligations under the terms of the Note and Mortgage; the plaintiff provided the required written notice under the Note and Mortgage to Baker; the plaintiff provided the required written notice mandated by sections 8-265cc through 8-265kk of the Connecticut General Statutes (the Emergency Mortgage Assistance Program); and the plaintiff is the holder of the Note and Mortgage.
In order to establish a prima facie case in an action to foreclosure a mortgage, the plaintiff must prove that it is the owner of the note and mortgage, that the defendant mortgagor has defaulted on the note and that any conditions precedent to foreclosure have been satisfied. 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); Bank of America, FSB v. Hanson, 65 Conn.App. 577, 581, 783 A.2d 88 (2001).
Baker has not claimed that she did not sign the Note, Mortgage and loan modification agreement. She claims that she was fraudulently induced to sign those documents. Her claims of fraud are not supported by any facts and are actually contradicted by her own affidavit. She claims that the original Note was unaffordable. However, she states in her affidavit that the Note became unaffordable in 2015. She has failed to cite any provision of the Note or Mortgage in which the plaintiff agreed to reduced required payments based on Baker’s future diminished income. Clearly there are no such provisions. Baker implies that rather than assisting her when she sought a payment reduction on her Mortgage, the plaintiff put on another, second mortgage. As the plaintiff’s supplemental affidavit makes clear, the HAMP program reduces a mortgagor’s payments by reducing the principal by allocating some of it into a second mortgage on which no payments are due and which is payable upon sale of the mortgaged property.
Under the terms of said HAMP Agreement signed by Baker the Unpaid Principal of the Original Note went from $350,741.09 to $274,652.22. The interest rate, which was 5.125% in the Note was modified to 3.75% in the HAMP Agreement. Further, the principal and interest monthly payment that was $2,069.25 in the Note was reduced to $1,271.96.
Baker’s claim that the plaintiff treated her unfairly by giving her a loan modification under the HAMP program is unsupported by any facts and requires the court to find that all HAMP modifications are unfair. Clearly, the plaintiff’s reduction of Baker’s interest rate and substantial reduction of her monthly payment was not unfair. Baker has provided no facts to support her special defenses that the plaintiff violated CUTPA or Connecticut General Statutes § § 36a-746b to 36a-746g.
For the foregoing reasons, summary judgment enters as to liability only in favor of the plaintiff.