Opinion
WWMCV146008236S
08-01-2017
Wilmington Savings Fund Society, FSB dba Christiana Trust, not Individually v. Julie Blake aka Julie D. Blake and Julie K. Blake
UNPUBLISHED OPINION
MEMORANDUM OF DECISION (MOTION FOR SUMMARY JUDGMENT #138, SHORT CALENDAR MAY 30, 2017)
Harry E. Calmar, J.
The Plaintiff moves for motion for summary judgment on the ground that there is no genuine issue of material fact regarding the defendant's liability in the foreclosure action.
The original plaintiff, CitiMortgage, Inc. (CitiMortgage), filed this foreclosure action on April 22, 2014. According to the complaint, the defendant, Julie Blake, owns real property located at 197 Dugg Hill Road in Woodstock, Connecticut (property). On December 10, 2007, the defendant executed and delivered a note (note) in favor of CitiMortgage for the original principal amount of $417,000. To secure the note, the defendant executed and delivered a mortgage (mortgage) on the property to Mortgage Electronic Registration Systems, Inc. (MERS) as nominee for CitiMortgage on the same date. The mortgage was later assigned to CitiMortgage from MERS on June 20, 2011 (assignment).
Julie Blake is also known as " Julie D. Blake" and " Julie K. Blake." For the purpose of this memorandum, she will be referred to as the defendant.
The defendant defaulted on the loan. As a result, CitiMortgage elected to accelerate the balance due under the note in accordance with the terms of the mortgage, duly signed by the defendant. CitiMortgage provided written notice of the foreclosure in accordance with the note and mortgage provisions and caused a Lis Pendens to be recorded on the property. Further, the underlying note and mortgage was also affected by a Home Affordable Modification Agreement, dated April 19, 2010, under which the defendant made only one payment. The modification agreement did not change the maturity date of the loan, just the payment amounts.
Subsequently, CitiMortgage moved for summary judgment on August 13, 2015. The court (Calmar, J.) initially granted CitiMortgage's summary judgment, but then denied it on reargument in its decision dated January 6, 2016, due to issues pertaining to a lost note and the lack of reference to a modification agreement.
CitiMortgage's prior summary judgment can be found at Docket Entry No. 117.
The note was later located and on January 27, 2016, CitiMortgage assigned the mortgage to Wilmington Savings Funds Society, FSB, DBA Christiana Trust, not individually but as Trustee for Ventures Trust 2013-I-H-R (Wilmington). Thereafter, Wilmington became holder of the note and was substituted into the case as the substitute plaintiff by the court (Calmar, J.) on October 24, 2016.
For clarity, the substitute plaintiff, Wilmington, will be referred to as Wilmington throughout this memorandum.
Wilmington filed the present motion for summary judgment on October 26, 2016, along with a supporting memorandum of law. In response, the defendant filed two motions. Specifically, the defendant filed her objection to the summary judgment on December 12, 2016. The defendant also filed a motion to dismiss on the same date. The defendant attached an omnibus memorandum of law to her objection to the summary judgment, in which she included both her motion to dismiss, and summary judgment arguments. The court (Calmar, J.) denied the motion to dismiss on April 26, 2017. Thereafter, short calendar argument regarding Wilmington's motion for summary judgment occurred on May 30, 2017. At short calendar, Wilmington rested on its arguments in its memorandum. The defendant, however, argued that there is a genuine issue of material fact regarding Wilmington's prima facie case because CitiMortgage previously sold the mortgage to Citibank, N.A. (Citibank) prior to assigning it to Wilmington.
Wilmington's summary judgment and supporting memorandum can be found at Docket Entry No. 138. Wilmington's exhibits include: (1) a copy of the defendant's answer (Exhibit 1); (2) Wilmington's affidavit (Exhibit 2); and (3) a copy of the court's order (Calmar, J.), dated January 6, 2016, denying CitiMortgage's previous motion for summary judgment (Exhibit 3). Wilmington also submits the following, attached to Exhibit 2: (1) a copy of the note (Exhibit A); (2) a copy of the bailee agreement (Exhibit B); (3) a copy of the mortgage (Exhibit C); (4) a copy of the assignment of mortgage from MERS to CitiMortgage (Exhibit D); (5) a copy of the assignment of mortgage from CitiMortgage to Wilmington (Exhibit E); (6) a copy of the Home Affordable Modification Agreement (Exhibit F); and (7) a copy of the EMAP notice (Exhibit G).
The defendant's objection to Wilmington's summary judgment can be found at Docket Entry No. 142.
The defendant's motion to dismiss can be found at Docket Entry No. 140.
The defendant's omnibus memorandum can be found at Docket Entry No. 141, and Docket Entry No. 142. For the purposes of this memorandum, the court will only consider the summary judgment arguments with the accompanying exhibits. The defendant's exhibits include: (1) the defendant's affidavit; and (2) a copy of a letter from Citibank, dated May 17, 2013, notifying the defendant of the transfer of the mortgage from CitiMortgage to Citibank.
The court (Calmar, J.) found that the note had been located and delivered to CitiMortgage's counsel as bailee, for the sole purpose of commencing this foreclosure action. Specifically, the court (Calmar, J.) found that the note remained with CitiMortgage's counsel, and thereafter, Wilmington, as substitute plaintiff, became holder of the note. The court (Calmar, J.) further noted that the bailee, Hunt Leibert Jacobson, P.C., counsel for the original plaintiff, CitiMortgage, is also Wilmington's counsel in this foreclosure action.
DISCUSSION
" [S]ummary 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." Cefaratti v. Aranow, 321 Conn. 637, 645, 138 A.3d 837 (2016). " [T]he genuine issue aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred . . . A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Citation omitted; internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).
In foreclosure actions, " [a] mortgagee that seeks summary judgment . . . has the evidentiary burden of showing that there is no genuine issue of material fact as to any of the prima facie elements, including that it is the owner of the debt." GMAC Mortgage, LLC v. Ford, 144 Conn.App. 165, 177, 73 A.3d 742 (2013). " In order to establish a prima facie case . . . 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." Id., 176.
" A mortgagee is not obligated to produce the original note in order to meet the mortgagee's burden at summary judgment; that burden is satisfied when the mortgagee includes in its submissions to the court a sworn affidavit averring that the mortgagee is the holder of the promissory note in question . . ." (Internal quotation marks omitted.) U.S. Bank, N.A. v. Foote, 151 Conn.App. 620, 633, 94 A.3d 1267, cert. denied, 314 Conn. 930, 101 A.3d 952 (2014). " The evidentiary burden of showing the existence of a disputed material fact then shifts to the defendant." Id., 632. " [T]he existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence." Id., 632-33; see also Little v. Yale University, 92 Conn.App. 232, 235, 884 A.2d 427 (2005), cert. denied, 276 Conn. 936, 891 A.2d 1 (2006).
In the present case, Wilmington moves for summary judgment on the ground that there is no genuine issue of material fact as to liability and that a prima facie case for foreclosure has been set forth within the pleadings. Specifically, Wilmington argues that its affidavit demonstrates that the original plaintiff, CitiMortgage, was the holder of the note when this suit commenced, and that Wilmington, as the substitute plaintiff, is the current holder of the note. Wilmington further argues that the defendant's previous reference to a 2012 lost note affidavit should have no bearing on the present case because the note was located and delivered to CitiMortgage's counsel as bailee, for the sole purpose of commencing the present foreclosure action. Last, Wilmington argues that its affidavit demonstrates not only that the defendant failed to make any payments since June 1, 2010, but that a written notice of default and an applicable EMAP notice was sent to the defendant at her property address via first class and certified mail.
The defendant argues that CitiMortgage's previously denied summary judgment is the law of the case. Specifically, the defendant argues that the court (Calmar, J.) denied CitiMortgage's summary judgment due to genuine issues of material fact regarding when the note was lost and the existence of a modification agreement. The defendant argues that the law of the case should not be disturbed because Wilmington has not offered any new arguments or evidence.
As previously noted, CitiMortgage's prior summary judgment can be found at Docket Entry No. 117.
Further, the defendant argues that Wilmington does not possess the mortgage or the note. In regards to the mortgage, the defendant counters that the mortgage was assigned to Citibank prior to Wilmington's assignment of mortgage, therefore, Wilmington's assignment is not valid. In regards to the note, the defendant counters that Wilmington cannot possibly be in possession of the note because the original note and mortgage were in possession of MERS during the time Wilmington's counsel claims to have had possession of the note.
The court notes that the defendant also argues that the note previously presented to the court by CitiMortgage, in the prior denied summary judgment was a color copy because it contained a blank endorsement. The defendant, however, does not offer any argument or evidence pertaining to the authenticity of Wilmington's note in the present summary judgment motion (Docket Entry No. 138). Wilmington presented the note at its oral argument on January 30, 2017, regarding the defendant's previous motion to dismiss (Docket Entry No. 140). The defendant countered it was a color copy and doubted its authenticity. After the short calendar arguments, the defendant filed a motion for permission to file a brief in reply to Wilmington's objection to the motion to dismiss (Docket Entry No. 144), stating that her arguments presented at short calendar regarding the authenticity of the note were not in her current filings. The court (Calmar, J.) granted the defendant permission to file a brief on February 14, 2017. Reargument for the motion to dismiss was then scheduled for March 20, 2017. The defendant filed for a motion for continuance to that hearing on March 15, 2017 (Docket Entry No. 145), which the court (Calmar, J.) granted on March 16, 2017. The hearing for the reargument occurred on April 24, 2017. At the hearing, Wilmington appeared and again presented the note to the court. The defendant, however, did not appear. The court (Calmar, J.) issued its decision denying the defendant's motion to dismiss on April 26, 2017, finding in part that the defendant did not offer any legal authority to raise a genuine question as to the authenticity of the note.
I
The Law of the Case
The court begins its analysis by noting that the defendant does not challenge two of the three elements of Wilmington's prima facie case. Specifically, the defendant does not challenge the default or that proper EMAP notice was given. Instead, the defendant contests only that the previous denied summary judgment is the law of the case and that there is a genuine issue of material fact regarding Wilmington's possession of the mortgage and the note.
" The law of the case is not written in stone but is a flexible principle of many facets adaptable to the exigencies of the different situations in which it may be invoked." Breen v. Phelps, 186 Conn. 86, 99, 439 A.2d 1066 (1982). " New pleadings intended to raise again a question of law which has been already presented on the record and determined adversely to the pleader are not to be favored . . . But a determination so made is not necessarily to be treated as an infallible guide to the court in dealing with all matters subsequently arising in the cause." Id. " Where a matter has previously been ruled upon . . . the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance." (Emphasis added.) Id. Thus, it is " within the trial court's discretion to consider a renewed motion for summary judgment that has previously been denied where . . . additional or new evidence has been submitted which was not before the court in ruling upon the earlier motion for summary judgment." Mac's Car City, Inc. v. American National Bank, 205 Conn. 255, 262, 532 A.2d 1302 (1987).
In the present case, Wilmington submits new evidence that was not previously submitted by its predecessor, CitiMortgage. Specifically, Wilmington submits the following new evidence: (1) a copy of the defendant's answer (Exhibit 1); (2) Wilmington's Affidavit (Exhibit 2); (3) a copy of the bailee agreement (Exhibit B); (4) a copy of the assignment of mortgage from CitiMortgage to Wilmington (Exhibit E); and (5) a copy of the Home Modification Affordable Modification Agreement (Exhibit F).
In the prior summary judgment motion (Docket Entry No. 117) CitiMortgage only submitted the following: (1) a copy of the note (Exhibit A); (2) a copy of the mortgage (Exhibit B); (3) a copy of the assignment of mortgage from MERS to CitiMortgage; and (4) a copy of the EMAP notice. Wilmington also submits these items in addition to its new evidence.
The court may properly consider Wilmington's present summary judgment because there is new evidence which was not before the court in CitiMortgage's previous motion for summary judgment. See Mac's Car City, Inc. v. American National Bank, supra, 205 Conn. 262; see also Comm 2006-C-8 Asylum v. Northland Cityplace II, LLC, Superior Court, judicial district of Hartford, Docket No. CV-10-6005957-S, (October 5, 2011, Sheldon, J.) (finding that because the note holder submitted new evidence, the court would consider the new motion for summary judgment).
A
Possession of the Mortgage and the Note
The court will now consider the defendant's argument that there is a genuine issue of material fact regarding Wilmington's possession of the mortgage and the note.
First, this court notes that " a holder of the note is presumed to be the owner of the debt, and unless the defendant rebuts that presumption, a holder of the note is entitled to foreclose the mortgage." RMS Residential Properties, LLC v. Miller, 303 Conn. 224, 230, 32 A.3d 307 (2011). Specifically, " [s]ection 49-17 codifies the well established common-law principle that the mortgage follows the note, pursuant to which only the rightful owner of the note has the right to enforce the mortgage." Id. " Our legislature, by adopting § 49-17, created a statutory right for the rightful owner of a note to foreclose on real property regardless of whether the mortgage has been assigned to him." Id.; see, e.g., HSBC Bank USA, N.A. v. Navin, 129 Conn.App. 707, 711, 22 A.3d 647, cert. denied, 302 Conn. 948, 31 A.3d 384 (2011); Chase Home Finance, LLC v. Fequiere, 119 Conn.App. 570, 576-77, 989 A.2d 606, cert. denied, 295 Conn. 922, 991 A.2d 564 (2010); Bankers Trust Co. of California, N.A. v. Vaneck, 95 Conn.App. 390, 391, 899 A.2d 41, cert. denied, 279 Conn. 908, 901 A.2d 1225 (2006); Fleet National Bank v. Nazareth, 75 Conn.App. 791, 795, 818 A.2d 69 (2003).
Therefore, " [t]he holder of a note seeking to enforce the note through foreclosure must produce the note." JPMorgan Chase Bank, National Ass'n. v. Simoulidis, 161 Conn.App. 133, 145, 126 A.3d 1098 (2015). " If the foreclosing party produces a note demonstrating that it is a valid holder of the note, the court is to presume that the foreclosing party is the rightful owner of the debt." Id. " The production of the note establishes his case prima facie against the makers and he may rest there . . ." RMS Residential Properties, LLC v. Miller, supra, 303 Conn. 232. " It is for the defendant to set up and prove the facts which limit or change the plaintiff's rights." (Internal quotation marks omitted.) Id.
In the present case, review of Wilmington's evidence reveals the following.
According to Wilmington's affidavit (Exhibit 2), the defendant executed and delivered the note to CitiMortgage on December 10, 2007. To secure the note, the defendant executed and delivered the mortgage on the property to Mortgage Electronic Registration Systems, Inc. (MERS) as nominee for CitiMortgage on the same date. The mortgage was later assigned to CitiMortgage on June 20, 2011. The mortgage was then assigned to Wilmington on January 27, 2016. Wilmington submits a copy of the note (Exhibit A), the mortgage (Exhibit C), the assignment of the mortgage from MERS to CitiMortgage (Exhibit D), and the assignment of the mortgage to Wilmington (Exhibit E) to support these claims.
Wilmington's evidence demonstrates that the mortgage was delivered to MERS to secure the note in 2007; it was then assigned to CitiMortgage in 2011, and later assigned to Wilmington in 2016.
In regards to the note, Wilmington's affidavit (Exhibit 2) asserts that the defendant executed and delivered the note to CitiMortgage on December 10, 2007. CitiMortgage then held the note from when it was first delivered to CitiMortgage, until June 18, 2013, when it delivered physical possession of the note to its counsel as bailee. According to the affidavit (Exhibit 2), the note was delivered to counsel for the sole purpose of pursuing the present foreclosure proceedings, which commenced on April 22, 2014. The affidavit also states that thereafter, Wilmington became holder of the note. Wilmington submits a copy of the bailee agreement, dated June 18, 2013 (Exhibit B) and a copy of the note to support these claims.
This court notes that " [a] relationship of bailor-bailee arises when the owner, while retaining general title, delivers personal property to another for some particular purpose upon an express or implied contract to redeliver the goods when the purpose has been fulfilled, or to otherwise deal with the goods according to the bailor's directions." B.A. Ballou & Co. v. Citytrust, 218 Conn. 749, 753, 591 A.2d 126 (1991). " In bailment, the owner or bailor has a general property interest in the goods bailed . . ." (Internal quotation marks omitted.) Id. " The bailee, on the other hand, has mere possession of items left in its care pursuant to the bailment." Id. Therefore, when CitiMortgage delivered the note to its counsel as bailee, it did not give its counsel legal title, but merely possession of the note for purposes of beginning foreclosure proceedings.
Wilmington's evidence regarding its possession of the note establishes that CitiMortgage was the holder of the note prior to and at the time of the commencement of this foreclosure action in 2014, and Wilmington, as the substitute plaintiff, currently holds the note.
Review of the defendant's evidence reveals that the defendant has failed to submit any evidence whatsoever establishing the existence of any disputed fact as to Wilmington's possession of the note. While the defendant submits her own affidavit, with a copy of a notice letter addressed to the defendant indicating a previous assignment of the mortgage, neither raises a genuine issue of material fact regarding Wilmington's possession of the note. Specifically, the defendant's affidavit merely states her name, age, and that she objects. The notice letter attached regards only a prior mortgage assignment, not possession of the note. The notice letter is irrelevant because it does not raise a genuine issue of material fact regarding possession of the note. As established above, Wilmington only needs to hold the note, not the mortgage, to foreclose. Thus, " the rightful owner of a mortgage note has a right to foreclose the mortgage regardless of whether the mortgage had been assigned to him." Astoria Federal Mortgage Corp. v. Genesis Ltd. Partnership, 167 Conn.App. 183, 201 n.13, 143 A.3d 1121 (2016); see also Equity One, Inc. v. Shivers, 310 Conn. 119, 126-27, 74 A.3d 1225 (2013); HMS Residential Properties, LLC v. Miller, supra, 303 Conn. 230.
While the defendant has made numerous arguments in her brief regarding her interpretations of the note's chain of title, she failed to submit any evidence to support her claims or to counter Wilmington's sworn statements in its affidavit that CitiMortgage was in possession of the note when this action commenced, and that Wilmington is the current holder of the note. " [T]o establish the existence of a material fact, it is not enough for the party opposing summary judgment merely to assert the existence of a disputed issue . . . Such assertions are insufficient regardless of whether they are contained in a complaint or a brief . . . " Tuccio Development, Inc. v. Neumann, 111 Conn.App. 588, 594, 960 A.2d 1071 (2008). Thus, " [i]t is not enough . . . for the opposing party merely to assert the existence of a disputed issue." Ferri v. Powell-Ferri, 317 Conn. 223, 228, 116 A.3d 297 (2015). " Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § 17-45." (Internal quotation marks omitted.) Id.
Based on Wilmington's evidence and case law discussed throughout this memorandum, Wilmington has met its burden of showing the absence of any genuine issue of material fact regarding its possession of the note and that the defendant has failed to submit any evidence whatsoever establishing the existence of any disputed fact as to Wilmington's possession of the note. Accordingly, Wilmington's motion for summary judgment is granted.