Opinion
FBTCV176062587S
10-02-2019
BANK OF AMERICA, N.A. v. Luis MURILLO, et al.
UNPUBLISHED OPINION
OPINION
Walter M. Spader, Jr., Judge.
The Plaintiff brings this motion for summary judgment as to Count Three of its Complaint- seeking an "equitable mortgage" on Luis Murillo’s interest in the subject premises at 852 Springhill Road, Monroe, Connecticut. This Court previously granted summary judgment as to his ex-wife’s (Rubia Murillo’s) interest in the premises (October 17, 2018, Judge Jennings), but in his ruling, Judge Jennings denied summary judgment as to Count Two (Reformation) and Count Three (Equitable Mortgage). Specifically for the Court’s purposes here today, the denial was based upon the Plaintiff’s failure to brief the concept of an equitable mortgage.
By way of background, the Plaintiff alleges that when the premises was purchased on December 7, 2005, the warranty deed conveyed the premises to BOTH Rubia and Luis Murillo. The Defendant, Luis Murillo, admitted in his deposition referenced in the Plaintiff’s motion that he prepared the loan application solely for Rubia Murillo because he had credit issues at the time of the purchase. Ultimately, the mortgage and note were only executed by Rubia Murillo although both parties took ownership of the premises subject to the mortgage and were jointly benefitted from the bank’s provision of a loan on the property.
STANDARD ON SUMMARY JUDGMENT
Pursuant to Connecticut 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." A material fact is one that would alter the outcome of the case. Southbridge Associates, LLC v. Garofalo, 53 Conn.App. 11, 14 (1999), citing Hammer v. Lumberman’s Mutual Casualty Co., 214 Conn. 573, 578 (1990).
The purpose of a motion for summary judgment is to dispose of actions lacking a triable issue of material fact. See, for example, Dorazio v. M.B. Foster Electric Co., 157 Conn. 226, 228 (1968). "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party ... The test is whether a party would be entitled to a directed verdict on the same facts." Connecticut Bank & Trust Co. v. Carriage Lane Associates, 219 Conn. 772 (1991). (Citation omitted; internal quotation marks omitted).
"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact ... The courts hold the movant to a strict standard ... Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue." Allstate Insurance Co. v. Barron, 269 Conn. 394 (2004) (Citations omitted; footnote omitted; internal quotation marks omitted).
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 (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 (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 (1996).
"A material fact is a fact that will make a difference in the result of the case." Tuccio Development, Inc. v. Neumann, 114 Conn.App. 123, 126 (2009) (Internal quotation marks omitted). Special defenses that attack the making, validity or enforcement of the note and mortgage and raise genuine issues of material fact that would warrant a trial, may prevent the trial court from granting summary judgment in a foreclosure action. See Garofalo, 53 Conn.App. at 14 (1999). The fundamental purpose of summary judgment is preventing unnecessary trials. See Orenstein v. Old Buckingham Corp., 205 Conn. 572, 574 (1987).
THE PLAINTIFF’S PRIMA FACIA CASE
The plaintiff seeks a declaration that it is entitled to an equitable mortgage on the property as of December 7, 2005.
"The concept of an equitable mortgage has been recognized in Connecticut since at least 1882. In Hall v. Hall, 50 Conn. 104, the Supreme Court of Errors recognized the maxim that ‘equity looks upon that as done which ought to have been done.’ All agreements are considered as performed, which were made for a valuable consideration, in favor of persons entitled to insist on their performance. They are considered as done at the time when, according to the tenor thereof, they ought to have been performed. In Hall, the Supreme Court recognized these maxims and consistent therewith required the Superior Court to pass a decree declaring the subject real estate to be encumbered by a mortgage that the parties to a transaction intended notwithstanding the failure to execute such a document." (Internal quotations and citations omitted.) Bank of America v. Barrera, 2019 WL 589088, FST-CV-176030667-S (J.D. of Stamford-Norwalk at Stamford, J. Genuario, January 11, 2019).
There are two differently worded, but essentially similar, criteria for the creation of an equitable mortgage in various Court memorandums of decisions. Either, "Such a mortgage may arise by (1) an attempt to create a mortgage, though imperfectly executed; (2) by an agreement to charge described property as security for money advanced; and (3) where the plaintiff advanced the sum of money to the defendant on the condition that the defendant would execute and deliver a mortgage and defendant failed to do so." (Citations omitted; internal quotation marks omitted.) Green Tree Servicing, LLC v. Hughes, 66 Conn.L.Rptr. 170, HHD-CV-14-6049428-S (J.D. of Hartford at Hartford, J. Dubay, March 24, 2018) following Nelson v. Catalano, 43 Conn.L.Rptr. 788, HHD-CV-03-0824431-S (J.D. of Hartford at Hartford, JTR Salter, April 3, 2007) and Bank of America, N.A. v. Bertocki, HHD-CV-09-5025960-S (J.D. of Hartford at Hartford, J. Robaina, May 22, 2012).
Or, an equitable mortgage may arise by: "(1) the existence of a definite debt, obligation or other liability to be secured by the property in question; (2) that the mortgagor had the legal power (i.e. legal title to the property) to execute a mortgage on the property; and (3) that the parties intended at the time of the transaction to create a mortgage, lien or a charge on property specifically described or identified to secure an obligation." Bank of America v. Barrera, supra, 2019 WL 589088 at *4 and JP Morgan Chase Bank, National Association v. Tak Wah Kan, 2015 WL 1086880, DBD-CV-14-6015168-S (J.D. of Fairfield at Danbury, J. Truglia, February 18, 2015), referencing 59 C.J.S. § § 47-53, Mortgages § § 32-39 (2009).
In determining whether an equitable mortgage exists, "the situation and course of conduct of the parties and all the surrounding circumstances are to be considered." Arvee Construction Co., v. Ardolino, 144 Conn. 7, 11 (1956). See HSBC Bank, SA, National Association v. D’Agostino, FST-CV-09-6002754-S (J.D. of Stamford-Norwalk at Stamford, JTR Mottolese, May 21, 2015).
APPLICATION OF LAW
The Court prefers the Barrera elements of the creation of an equitable mortgage as stated more clearly, but under either definition, in considering the transaction and the course of conduct of the parties at the time of the transaction, the Plaintiff has established the essential elements to demonstrate an equitable mortgage as to the defendant, Luis Murillo. Further, Luis Murillo is liable on that equitable mortgage. Mr. Murillo’s ex-wife, Rubia, executed a note and mortgage creating a definitive debt/liability secured by the subject premises. As title at the closing went to BOTH Rubia and Luis, he had the legal power to execute a mortgage on the property. Both Luis and Rubia intended at the time of the transaction to create a mortgage lien on the property- Luis filled out the applications under Rubia’s name and the mortgage was for the actual purchase of the premises. At oral argument, Mr. Murillo indicated that he lives in the property post-divorce with his children and that he is trying to negotiate with the bank for a modification. As it currently stands, he is not a signatory on the note and mortgage, so they could not be modified. His desire to modify them indicates his tacit acknowledgment of the mortgage obligation and reinforces the need of the Court to provide the Plaintiff its requested relief.
The Defendant has also not filed an objection to the Plaintiff’s motion and has centered his defense upon questioning the assignments of the mortgage, but the Court is issuing this written Memorandum based upon the Court’s earlier denial of the equitable mortgage Count in the Plaintiff’s first motion for summary judgment.
CONCLUSION
Accordingly, the Court finds that no genuine issue of material fact exists as to the Plaintiff’s Third Count and finds that there is an equitable mortgage in the Plaintiff’s favor on 852 Springhill Road in Monroe as to Luis Murillo’s interest in the premises and he is liable to the Plaintiff under that mortgage. The motion for summary judgment is therefore granted. Determination of the amount of the indebtedness is deferred until such time as the Court hears the Plaintiffs’ motion for strict foreclosure.