Opinion
FBTCV146045996S
09-21-2017
Wells Fargo Bank, N.A. v. James R. Fitzpatrick et al
UNPUBLISHED OPINION
CORRECTED MEMORANDUM OF DECISION ON PLAINTIFF'S MOTION TO DISMISS COUNTERCLAIM (NO. 139) AND DEFENDANTS' OBJECTION THERETO (NO. 142)
This Memorandum of Decision replaces and corrects the Memorandum of Decision dated June 20, 2017 which misstates the first name of the defendant and otherwise confuses this case with a similar foreclosure counterclaim brought by a party named Christopher Fitzpatrick. The rulings granting the plaintiff's Motion to Dismiss Counterclaim and overruling defendant's Objection to Motion Dismiss Counterclaim remain unchanged.
Alfred J. Jennings, Jr., Judge Trial Referee.
The defendant in this foreclosure action James R. Fitzpatrick has filed a counterclaim against the plaintiff which alleges that the Note was declared in default on or about prior to August 1, 2009 and that the plaintiff/counterclaim defendant or its predecessors elected to accelerate the balance due on the Note on or about August 1, 2009 and commence this foreclosure action, and that he, the defendant, has remained in undisturbed possession of the property since August 1, 2009 and for six years preceding the commencement of this action 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 August 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. Since the defendant has not alleged that he has been in undisturbed possession of the property for at least six years after the maturity date of the loan as stated in the Note and Mortgage, plaintiff asks the court to dismiss the Section 49-13 counterclaim.
In connection with a similar foreclosure action in this court involving an unrelated defendant also named Fitzpatrick that defendant had filed a Petition in 2015 seeking a discharge of mortgage under § 49-13(a) on similar allegations claiming relief under Section 49-13 because of undisturbed possession for at least six years after the date of acceleration of his loan. That separate action is styled Christopher Fitzpatrick v. U.S. Bank, N.A., Trustee, FBT CV15-6050335S, The defendant in that action U.S. Bank, N.A., Trustee moved to strike the Petition for Discharge of Mortgage, 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(a). 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 a [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 under Practice Book § 10-44 when the plaintiff failed to file a substitute petition. 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), 164 A.3d 832, 2017 WL2362070, 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. The counterclaim does not state a legally sufficient cause of action for discharge of mortgage under Section 49-13(a). Accordingly, the plaintiff's Motion to Dismiss the defendants' counterclaim seeking a discharge of mortgage under Conn. Gen. Stat. § 49-13(a) is granted and the Objection to Motion to Dismiss is overruled.