Opinion
FBTCV146045996S
06-20-2017
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON PLAINTIFF'S MOTION TO DISMISS COUNTERCLAIM (NO. 139) AND DEFENDANTS' OBJECTION THERETO (NO. 142)
Alfred J. Jennings, Judge.
The defendant in this foreclosure action, Christopher Fitzpatrick, has filed a counterclaim against the plaintiff which alleges that he, the defendant, ceased making payments as required by the Note and Mortgage beginning on May 1, 2009 and has been in default of payment continuously since that date. He further alleges that the plaintiff accelerated the remaining balance of the debt following the May 1, 2009 default, and the remaining unpaid principal balance plus interest, attorneys fees and costs were declared immediately due and owing to the plaintiff. Defendant further alleges that he has remained in undisturbed possession of the property since May 1, 2009 and for six years preceding the commencement of this counterclaim, and that the property is presently encumbered by the undischarged mortgage. Under those circumstances defendant claims he is entitled to a decree of discharge of plaintiff's mortgage under Conn. Gen. Stat. § 49-13(a) which provides in relevant part:
When the record title to real property is encumbered (1) by any undischarged mortgage, and (A) the mortgagor or those owning the mortgagor's interest therein have been in undisturbed possession of the property for at least six years after the expiration of the time limited in the mortgage for the full performance of the conditions thereof, and for six years next preceding the commencement of any action under this section . . . the person owning the property, or the equity in the property, may bring a petition to the superior court for the judicial district in which the property is situated, setting forth the facts and claiming a judgment as provided in this section.
The issue between the parties goes to the statutory temporal limit " . . . at least six years after the expiration of the time limited in the mortgage for the full performance of the conditions thereof." The counterclaiming defendant takes the position that the six-year possession period commenced on or about May 1, 2009 when the plaintiff accelerated the debt. The plaintiff takes the position that the phrase " time limited in the mortgage for the full performance thereof" refers to the stated maturity date in the secured Note and the Mortgage Deed which in this case is September 1, 2037.
In addition to filing this counterclaim in this mortgage foreclosure case against him, the defendant Christopher Fitzpatrick had filed a separate Petition in this court in 2015 seeking a discharge of this same mortgage under § 49-13 on identical allegations and claims and seeking the same relief as made in this counterclaim. That separate action is styled Christopher Fitzpatrick v. U.S. Bank, N.A., Trustee, FBT CV15-6050335S (the " Prior Action"). The defendant in the Prior Action, U.S. Bank, Trustee, moved to strike the Petition filed in the Prior Action, which Motion was granted by the court (Kamp, J.). On November 23, 2015 in a comprehensive Memorandum of Decision citing prior Superior Court authority, Judge Kamp agreed with the position of U.S. Bank, N.A., Trustee and granted its motion to strike the complaint petitioning for a discharge of the mortgage under § 49-13. Christopher Fitzpatrick v. U.S. Bank National Association as Trustee, Superior Court, Judicial District of Fairfield at Bridgeport, Docket No. FBT CV15-6050335 (November 23, 2015, Kamp, J.), 2015 WL, 9242410, 51 Conn.L.Rptr. 287, (" Under the plaintiff's interpretation of § 49-13(a), a defendant who elects the remedy of acceleration to cure a plaintiff's default under a mortgage contract would cause the time limited in a mortgage for its full performance to change from the date of final payment to the acceleration date as a matter of law. Such an interpretation would flout the well-recognized principle that '[t]he terms of [a] mortgage determine [a bank's] right to foreclose the mortgage' and, by extension, to elect remedies in the event of a borrower's default"). Judgment thereafter entered for the defendant U.S. Bank, Trustee in the Prior Action under Practice Book § 10-44 when the plaintiff failed to file a substitute complaint. The plaintiff appealed to the Appellate Court.
The Appellate Court recently issued its ruling and opinion affirming Judge Kamp's ruling. Christopher Fitzpatrick v. U.S. Bank National Association Trustee, 173 Conn.App. 686 (2017); 2017 WL 2362070, June 6, 2017. The Appellate Court concluded: " After our plenary review of § 49-13(a)(1)(A) we conclude that the phrase 'time limited in the mortgage for the full performance of the conditions thereof, clearly and unambiguously refers to the maturity date specified in the mortgage, which the defendants argue is the appropriate date, and not the acceleration date, which the plaintiff argues is the appropriate date . . . If the legislature agreed with the plaintiff's argument that a mortgagee's decision to accelerate a debt advances a mortgage's maturity date to the date of acceleration, it would have included such a provision within the statute." 173 Conn.App. at 692.
The Appellate Court ruling is binding precedent on this court on the exact issue now before the court. Accordingly, the plaintiff's Motion to Dismiss the defendants' counterclaim seeking a discharge of mortgage under Conn. Gen. Stat. § 49-13 is granted and the Objection to Motion to Dismiss is overruled.