Opinion
HHDCV186099509S
02-11-2019
ROSENBLIT ENTERPRISES, LLC v. Ahmed DADI
UNPUBLISHED OPINION
OPINION
Dubay, J.
This action arises out of an attempt by the plaintiff, Rosenblit Enterprises, LLC, to foreclose on a Glastonbury property owned by the defendant, Ahmed Dadi. Presently before the court is the plaintiff’s motion for summary judgment as to liability. For the following reasons, the court grants the motion for summary judgment.
FACTS
In its complaint, filed on August 8, 2018, the plaintiff alleges the following facts. By a note dated March 6, 2008, PDPA, Inc. agreed to pay Ellen Rosenblit, trustee of the Jack L. Rosenblit Revocable Trust ("the Trust"), the principal sum of $ 122, 500.00, payable with interest. By a mortgage deed of the same date, to secure the note, PDPA mortgaged an unimproved parcel of land known as Parcel HP 17, Highpoint Subdivision, Glastonbury, Connecticut ("Lot HP 17"). At the time of the execution of the note and mortgage, PDPA was the record owner of Lot HP 17. At a later date, the defendant, Ahmed Dadi, became the record owner of Lot HP 17 by virtue of a deed from PDPA. On October 1, 2013, the note and mortgage were assigned from the Trust to the plaintiff, Rosenblit Enterprises, LLC. The loan has matured yet remains unsatisfied, and the plaintiff demands immediate payment in full.
On October 22, 2018, the defendant filed an answer, denying the plaintiff’s allegations and asserting three special defenses: (1) bad faith and unfair dealing; (2) loan fulfillment by the plaintiff’s sale of a separate property formerly owned by the defendant; and (3) bad faith and unfair dealing in relation to yet another property formerly owned by the defendant. On November 26, 2018, the defendant filed an amended answer alleging two additional special defenses, namely: (4) unjust enrichment by the sale identified in the second special defense; and (5) laches.
On October 30, 2018, the plaintiff submitted its motion for summary judgment as to liability on the ground that there exist no genuine issues of material fact and the plaintiff is entitled to judgment as a matter of law. Subsequently, the defendant filed its objection on December 14, 2018. The matter was heard at short calendar on December 17, 2018.
DISCUSSION
"Summary judgment is a method of resolving litigation when 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." (Internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534-35, 51 A.3d 367 (2012). "[T]he party moving for summary judgment ... is required to support its motion with supporting documentation, including affidavits." Heyman Associates No. 1 v. Insurance Co. of Pennsylvania, 231 Conn. 756, 796, 652 A.2d 122 (1995). "The existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence ... If the affidavits and the other supporting documents are inadequate, then the court is justified in granting the summary judgment, assuming that the movant has met his burden of proof." (Internal quotation marks omitted.) Rivera v. CR Summer Hill, Ltd. Partnership, 170 Conn.App. 70, 74, 154 A.3d 55 (2017). When a party moves for summary judgment "and there [are] no contradictory affidavits, the court properly decide[s] the motion by looking only to the sufficiency of the [movant’s] affidavits and other proof." Heyman Associates No. 1 v. Insurance Co. of Pennsylvania, supra, 231 Conn. 795.
I. THE PRIMA FACIE CASE
"In order to establish a prima facie case in a mortgage foreclosure action, the plaintiff must prove by a preponderance of the evidence 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, as established by the note and mortgage, have been satisfied ... Thus, a court may properly grant summary judgment as to liability in a foreclosure action if the complaint and supporting affidavits establish an undisputed prima facie case and the defendant fails to assert any legally sufficient special defense." (Citations omitted.) Wells Fargo Bank, N.A. v. Strong, 149 Conn.App. 384, 392, 89 A.3d 392, cert. denied, 312 Conn. 923, 94 A.3d 1201 (2014).
In the present case, in support of its motion for summary judgment, the plaintiff attached the following documents: (1) a notarized affidavit from Seth Rosenblit, co-owner and loan administrator for the plaintiff; (2) a copy of the note; (3) a copy of the mortgage; and (4) a copy of the assignment. The defendant did not file any affidavits or exhibits relevant to the present action. Accompanying its objection, the defendant attached documents only relevant to transactions involving the separate property identified in the second and fourth special defenses. Accordingly, the evidence indicates that the plaintiff has met its burden and established a prima facie case by demonstrating: it is the owner of the note and mortgage; the defendants have defaulted on the note; and any conditions precedent to foreclosure, as established by the note and mortgage, have been satisfied.
II. SPECIAL DEFENSES
"The purpose of a special defense is to plead facts that are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action." TD Bank, N.A. v. M.J. Holdings, LLC, 143 Conn.App. 322, 326, 71 A.3d 541 (2013). "A valid special defense at law to a foreclosure proceeding must be legally sufficient and address the making, validity, or enforcement of the mortgage, the note, or both. Where the plaintiff’s conduct is inequitable, a court may withhold foreclosure on equitable considerations and principles ... If the mortgagor is prevented by accident, mistake, or fraud, from fulfilling a condition of the mortgage, foreclosure cannot be had. Other equitable defenses that our Supreme Court has recognized in foreclosure actions include unconscionability, abandonment of security, and usury." Fidelity Bank v. Krenisky, 72 Conn.App. 700, 705-06, 807 A.2d 968, cert. denied, 262 Conn. 915, 811 A.2d 1291 (2002).
In the present action, the special defenses raised by the defendants do not demonstrate the plaintiff has failed to state a cause of action. The defendant’s second, third, and fourth special defenses are not directly related to either the mortgage or the note at issue in this case. The remaining two special defenses do not address the making, validity, or enforcement of either the mortgage or the note and are legally insufficient.
A. Breach of Covenants of Good Faith and Fair Dealing
The defendant alleges that the plaintiff breached the covenants of good faith and fair dealing in relation to Lot HP 17, in particular by initiating litigation in 2016, suspending that litigation, entering negotiations, and finally initiating the present action. This court has held that "alleged improper conduct occurring during mediation and modification negotiations lacked any reasonable nexus to the making, validity, or enforcement of the mortgage or note." (Citation omitted, internal quotation marks omitted.) U.S. Bank National Assn., Trustee v. Blowers, 177 Conn.App. 622, 629-30, 172 A.3d 837 (2017). Regardless, "special defenses and counterclaims alleging a breach of an implied covenant of good faith and fair dealing ... are not equitable defenses to a mortgage foreclosure." (Internal quotation marks omitted.) LaSalle National Bank v. Freshfield Meadows, LLC, 69 Conn.App. 824, 835, 798 A.2d 445 (2002). Accordingly, this special defense is legally insufficient and does not address the making, validity, or enforcement of the mortgage or the note.
B. Laches
The defendants also allege the plaintiff is guilty of laches. "Laches consists of two elements. First, there must have been a delay that was inexcusable, and, second, that delay must have prejudiced the defendant ... Lapse of time, alone, does not constitute laches. It must result in prejudice to the defendant as where, for example, the defendant is led to change his position with respect to the matter in question ... or the delay works a disadvantage to another." (Citations omitted; internal quotation marks omitted.) LaSalle National Bank v. Shook, 67 Conn.App. 93, 98-99, 787 A.2d 32 (2001). The defendant have not, however, provided evidence demonstrating the plaintiff’s delay was inexcusable or was substantially prejudicial. Mere assertions are insufficient to establish the existence of a material fact, which require a showing of concrete evidence and counteraffidavits. See Rivera v. CR Summer Hill, Ltd. Partnership, supra, 170 Conn.App. 74. Accordingly, this special defense is legally insufficient and does not address the making, validity, or enforcement of the mortgage or the note.
CONCLUSION
The court concludes the evidence demonstrates that the plaintiff has established a prima facie case of foreclosure and that the defendant’s special defenses are both legally insufficient and fail to address the making, validity, or enforcement of the mortgage or note. Therefore, the plaintiff’s motion for summary judgment as to liability is granted.