Holly Flor v. R. Bourgeois Antiques et al. (2010)

CORRECTED MEMORANDUM OF DECISION

The defendant, Mortgage Electronic Registration Systems, Inc., has moved for summary judgment (# 129)* on the ground that there are no genuine issues of material fact and (1) the plaintiff's mortgage is invalid;  or (2) Mortgage Electronic's liens are entitled to priority under the doctrine of equitable subrogation.   For the reasons given, the court must deny Mortgage Electronic's motion for summary judgment because Mortgage Electronic has not met its burden of establishing its entitlement to summary judgment on either ground.

(*Please note that the only change in this memorandum and my original memorandum of decision dated January 12, 2010 is the number of the pleading.)

FACTS

On October 16, 2008, the plaintiff, Holly Flor, filed a complaint against R. Bourgeois Antiques, LLC,¹ Barbara Bourgeois, Arnaud Bourgeois, Mortgage Electronic Registration Systems, Inc. and American Mortgage Network, Inc. In her complaint, the plaintiff alleges the following facts.   Arnaud Bourgeois, Barbara Bourgeois and R. Bourgeois Antiques, LLC gave the plaintiff a note dated January 1, 2004 in which they promised to pay the plaintiff the principal sum of $128,500 with interest.   In order to secure that note, Barbara Bourgeois mortgaged a parcel of land to the plaintiff, located at 270 Main Street South, Woodbury, Connecticut, (hereinafter the Woodbury property) by providing a mortgage deed in her name, also dated January 1, 2004.   Since September 2007, Arnaud Bourgeois, Barbara Bourgeois and R. Bourgeois Antiques, LLC have failed to pay the principal and interest due on the note and, as a result, the plaintiff is exercising her option to declare the note in default and the entire balance due and payable.

The plaintiff also alleges that Mortgage Electronic Registration Systems, Inc. (hereinafter Mortgage Electronic), as a nominee for American Mortgage Network, Inc. (hereinafter American Mortgage), claims an interest in the Woodbury property as a result of a mortgage deed dated June 21, 2005, securing a note in the amount of $725,000, and a mortgage deed dated June 21, 2005, securing a debt of future advances not exceeding $152,000.   The plaintiff claims that both of these mortgages are subsequent and subordinate to the plaintiff's mortgage.   In her complaint, the plaintiff seeks a foreclosure of the mortgage, among other remedies.   The plaintiff attaches the alleged note and mortgage deed to her complaint.   The January 1, 2004 date is listed at the top of both documents and before the signatures at the end of the mortgage deed.

On January 27, 2009, Mortgage Electronic ² filed requests for admission, to which the plaintiff filed responses on March 23, 2009.   In those responses, the plaintiff admits that she and R.V. Mangels owned the Woodbury property on January 1, 2004, and that Barbara Bourgeois lacked a right to bargain, sell, mortgage or convey that property as of the same date.   The plaintiff also admits that she does not possess a power of attorney executed by Barbara Bourgeois appointing Arnaud Bourgeois as her attorney in fact as of January 1, 2004.   Finally, the plaintiff admits that she and R.V. Mangels conveyed their entire interest in the Woodbury property to Barbara Bourgeois on March 8, 2004.³

In Mortgage Electronic's second amended answer and special defenses, filed on May 15, 2009, it denies that Barbara Bourgeois provided a January 1, 2004 mortgage deed to the plaintiff in order to secure her note.   It also denies that its mortgages are subsequent and subordinate to the plaintiff's lien.   In its second special defense, Mortgage Electronic alleges that it was ignorant of the plaintiff's mortgage on the Woodbury property when it paid off prior mortgages and took new mortgages on June 21, 2005, and as a result, it is entitled to equitable subrogation.   If the doctrine is not applied, Mortgage Electronic argues, the plaintiff will be unjustly enriched.   In its third affirmative defense, Mortgage Electronic alleges that the mortgage claimed by the plaintiff is void because no valid power of attorney existed on January 1, 2004, authorizing Arnaud Bourgeois to sign the mortgage for Barbara Bourgeois.   In its fourth affirmative defense, Mortgage Electronic alleges that the mortgage is void because it does not comply with General Statutes § 47-10.   Finally, in its fifth affirmative defense, Mortgage Electronic claims that the plaintiff's conduct, as set forth in the affirmative defenses, constitutes unclean hands.

In response to Mortgage Electronic's requests for admissions, dated April 13, 2009, and submitted with Mortgage Electronic's motion for summary judgment, Barbara Bourgeois and R. Bourgeois Antiques, LLC admit that the plaintiff and R.V. Mangels conveyed all of their interest in the Woodbury property to Barbara Bourgeois on March 8, 2004, and that Barbara Bourgeois, acting through Arnaud Bourgeois, executed two mortgages to Greenpoint Mortgage Funding, Inc. (hereinafter Greenpoint) on March 8, 2004, in the amount of $722,000.   They also admit, inter alia, that the Greenpoint mortgages were used to purchase the Woodbury property and that on June 21, 2005, Barbara Bourgeois executed two open-end mortgage deeds to Mortgage Electronic ⁴ for $725,000 and $152,000 in order to refinance her Greenpoint mortgages.⁵  Arnaud Bourgeois' responses to Mortgage Electronic's requests for admission, also dated April 13, 2009, and submitted with Mortgage Electronic's motion for summary judgment, are consistent with Barbara Bourgeois and R. Bourgeois Antiques, LLC's responses.   At a later date, the plaintiff filed responses to Mortgage Electronic's July 15, 2009 requests for admissions in which the plaintiff admits that she did not believe that her mortgage was the first lien on the Woodbury property when she recorded that mortgage on May 9, 2005.

On August 5, 2009, Mortgage Electronic filed the motion for summary judgment that is presently before this court along with a supporting memorandum of law and several exhibits.   The issue before the court on this motion is whether the court should grant Mortgage Electronic's motion for summary judgment on the ground that there are no questions of material fact and:  (1) the plaintiff's mortgage is invalid;  or (2) Mortgage Electronic's liens are entitled to priority under the doctrine of equitable subrogation.   On September 3, 2009, the plaintiff filed a memorandum of law in opposition to Mortgage Electronic's motion for summary judgment, and on October 6, 2009, Mortgage Electronic filed a reply memorandum.   This matter was heard at the short calendar on October 13, 2009.

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.”  Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).  “The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law.   The courts hold the movant to a strict standard ․ As the burden of proof is on the movant, the evidence must be viewed in a light most favorable to the opponent ․ When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue.”  (Internal quotation marks omitted.)  Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).  “An important exception exists ․ to the general rule that a party opposing summary judgment must provide evidentiary support for its opposition, and that exception has been articulated in our jurisprudence with less frequency than has the general rule.   On a motion by [the] defendant for summary judgment the burden is on the defendant to negate each claim as framed by the complaint ․ It necessarily follows that it is only [o]nce [the] defendant's burden in establishing [its] entitlement to summary judgment is met [that] the burden shifts to [the] [nonmovant] to show that a genuine issue of fact exists justifying a trial.”  (Internal quotation marks omitted.)   Gianetti v. United Healthcare, 99 Conn.App. 136, 141, 912 A.2d 1093 (2007).

As to the validity of the plaintiff's mortgage, Mortgage Electronic alleges that as of January 1, 2004, Barbara Bourgeois lacked a legal interest in the Woodbury property, and thus, she had no interest to convey in the property.   Likewise, Mortgage Electronic argues, the plaintiff's mortgage is invalid because Barbara Bourgeois lacked a power of attorney as of January 1, 2004, and thus, her conveyance violated § 47-5(a).⁶  Both of these facts “definitively render the Flor mortgage invalid.”   In its October 6, 2009 reply to the plaintiff's memorandum in opposition, Mortgage Electronic argues that the plaintiff cannot refute the date of the mortgage execution in her opposition memorandum because she has not amended her complaint.   Thus, the allegations in the plaintiff's complaint are judicial admissions, and the January 1, 2004 date on the note and mortgage remain part of the operative pleadings.   Even if the court disagrees with its arguments regarding the mortgage's alleged invalidity, Mortgage Electronic argues, summary judgment is still appropriate because it is entitled to priority over the plaintiff's mortgage under the doctrine of equitable subrogation, which is addressed later in this memorandum.

In support of its motion, Mortgage Electronic submits:  (1) a certified copy of the mortgage deed Barbara Bourgeois allegedly gave the plaintiff, dated January 1, 2004;  (2) R. Bourgeois Antiques, LLC and Barbara Bourgeois' responses to Mortgage Electronic's request for admissions, attached to which are:  certified copies of the two March 8, 2004 mortgages executed between Barbara Bourgeois and Greenpoint;  certified copies of the two June 21, 2005 mortgages executed between Barbara Bourgeois and Mortgage Electronic;  a certified copy of Barbara Bourgeois' loan application with Mortgage Electronic;  and a certified copy of the settlement statement regarding Barbara Bourgeois' mortgage with Mortgage Electronic;  (3) a certified copy of Barbara Bourgeois' power of attorney, dated March 3, 2004, whereby Barbara Bourgeois appointed Arnaud Bourgeois as her attorney-in-fact;  (4) an affidavit from Carol Carson, Vice President of and a custodian of records for American Mortgage Network; ⁷  (5) Arnaud Bourgeois' responses to Mortgage Electronic's requests for admissions;  (6) an affidavit from Michael McKenna, the attorney who represented Barbara Bourgeois in the closing with Mortgage Electronic, attached to which is a certified copy of a August 20, 2005 document in which Mortgage Electronic releases and discharges a mortgage from Barbara Bourgeois;  and (7) the plaintiff's revised responses ⁸ to Mortgage Electronic's request for admissions.

In the plaintiff's memorandum in opposition to Mortgage Electronic's motion for summary judgment, the plaintiff alleges that the mortgage deed was executed on March 8, 2004, even though the deed is dated January 1, 2004.   The plaintiff argues that the January 1, 2004 date is not conclusive, and parol evidence is competent to show that the deed was executed at a different time from the date it bears.   Thus, the use of the power of attorney by Arnaud Bourgeois was valid because it was executed on March 3, 2004, before the alleged March 8, 2004 conveyance.   The plaintiff also argues, inter alia, that the doctrine of equitable subrogation is not applicable in the present matter.⁹  In support of her motion in opposition, the plaintiff submits:  (1) an affidavit of Theresa B. D'Alton, the attorney who allegedly drafted the January 1, 2004 note at the request of the plaintiff and Arnaud Bourgeois and who represented Greenpoint in connection with the March 8, 2004 sale of the Woodbury property; ¹⁰  (2) the statutory power of attorney form appointing Arnaud Bourgeois as attorney-in-fact for Barbara Bourgeois, dated March 3, 2004;  and (3) the note and mortgage deed dated January 1, 2004.

“A critical component of any foreclosure action is the existence of a valid, legally enforceable mortgage instrument.”   Deutsche Bank National Trust Co. v. Gue, Superior Court, judicial district of Fairfield, Docket No. CV 08 5015120 (November 5, 2008, Doherty, J.) (46 Conn. L. Rptr. 581, 582).   Section 47-5, which governs the conveyance of land, provides in relevant part:  “(a) All conveyances of land shall be:  (1) In writing;  (2) if the grantor is a natural person, subscribed, with or without a seal, by the grantor with his own hand or with his mark with his name annexed to it or by his attorney authorized for that purpose by a power executed, acknowledged and witnessed in the manner provided for conveyances ․ (3) acknowledged by the grantor, his attorney or such duly authorized person to be his free act and deed;  and (4) attested to by two witnesses with their own hands.” ¹¹

Mortgage Electronic raises two claims as to the invalidity of the plaintiff's mortgage.   First, Mortgage Electronic claims, the plaintiff's mortgage is invalid because the complaint establishes that January 1, 2004 was the date of execution, and Barbara Bourgeois lacked an ownership interest in the property as of that date.   Second, Mortgage Electronic claims, the plaintiff's mortgage is invalid because the conveyance does not comply with § 47-5(a).   As to the first claim, neither the plaintiff nor Barbara Bourgeois dispute Mortgage Electronic's claim that Barbara Bourgeois lacked an ownership interest in the property as of January 1, 2004.   Likewise, Mortgage Electronic does not attempt to- dispute the claim that the plaintiff's mortgage was executed on March 8, 2004, as alleged in her admissions.   Rather, Mortgage Electronic argues, the January 1, 2004 date of execution is the only date that the court may consider, and the plaintiff's mortgage is therefore invalid as a matter of law because the plaintiff's complaint is a judicial admission, and the plaintiff has not amended her complaint.

Although the plaintiff's complaint is a judicial admission, so too are her responses to Mortgage Electronic's request for admission,¹² which Mortgage Electronic submitted with its motion for summary judgment.   Moreover, the plaintiff has never explicitly alleged that January 1, 2004 was the date of execution, she only referenced the note and deed dated January 1, 2004 in her complaint and attached the note and deed to her complaint.   If Mortgage Electronic had established that January 1, 2004 was, in fact, the date of execution, its argument might have merit because the parties admit that Barbara Bourgeois lacked an ownership interest in the Woodbury property on January 1, 2004.   In light of the plaintiff's admissions, however, Mortgage Electronic has failed to establish that the mortgage and note were actually executed on January 1, 2004, and thus, Mortgage Electronic's argument is unpersuasive as a matter of law.

Mortgage Electronic's second claim, that the plaintiff's mortgage is void because Barbara Bourgeois' power of attorney does not comply with the conveyance requirements of § 47-5(a), is equally unpersuasive.   Given that Mortgage Electronic has not established that the mortgage was executed on January 1, 2004, and given that Mortgage Electronic attaches a copy of Barbara Bourgeois' March 3, 2004 power of attorney to its motion for summary judgment, which is dated before the alleged March 8, 2004 conveyance, Mortgage Electronic has not established that the conveyance is invalid under § 47-5(a).   In sum, Mortgage Electronic has not met its burden of establishing its entitlement to summary judgment on the ground that the plaintiff's mortgage is invalid.   The question remains, however, whether the court should grant the motion for summary judgment on the ground that Mortgage Electronic is entitled to equitable subrogation.

Mortgage Electronic argues that equitable subrogation is applicable to its mortgages because its evidence shows that it provided money to Barbara Bourgeois to discharge her mortgages with Greenpoint, which were originally executed on March 8, 2004, it took two new mortgages on the property as security for that discharge, and it was ignorant of the plaintiff's alleged mortgage on the property.   Although Mortgage Electronic admits in its October 6, 2009 reply memorandum that a party with actual or constructive notice of a prior lien is not entitled to equitable subrogation, it alleges that it was ignorant of the plaintiff's mortgage because Attorney McKenna, Barbara Bourgeois' attorney at the closing of her mortgages with Greenpoint, was unaware of any mortgages on the property besides the Greenpoint mortgages.   Moreover, Mortgage Electronic notes, when Barbara Bourgeois filed her mortgage application with the company, she only identified the Greenpoint mortgages as existing liens on the property, not the plaintiff's lien, and the underwriting files “demonstrated that at no time did American Mortgage have any document or record identifying a mortgage on the property held by the plaintiff.”   Finally, Mortgage Electronic argues, inter alia, the plaintiff will receive an unfair windfall if the doctrine is not applied.   In its October 6, 2009 reply memorandum, Mortgage Electronic emphasizes equitable subrogation's role in effectuating fairness and justice so as to prevent unfair windfalls.

In reply, the plaintiff argues that equitable subrogation is a discretionary doctrine that is applied in certain limited circumstances.   Although the plaintiff acknowledges that her mortgages were subsequent in priority to the Greenpoint mortgages, she alleges that she now has first priority because the Greenpoint mortgages were released on September 15, 2005.   Finally, the plaintiff argues, inter alia, although Mortgage Electronic claims that it was ignorant of the plaintiff's lien on the property, it bases this allegation upon an affidavit from Barbara Bourgeois' attorney, her mortgage application and its own company records and not on the basis of a title search.   Mortgage Electronic does not allege or produce evidence indicating that it conducted a title search of the property.   If Mortgage Electronic completed a title search, the plaintiff claims, it would have discovered the plaintiff's recorded lien on the property and had notice of the lien.

“The law relating to the priority of interests has its roots in early Connecticut jurisprudence.   A fundamental principle is that a mortgage that is recorded first is entitled to priority over subsequently recorded mortgages provided that every grantee has a reasonable time to get his deed recorded.”   Independence One Mortgage Corp. v. Katsaros, 43 Conn.App. 71, 73, 681 A.2d 1005 (1996).   There is also a “presumption that one taking a mortgage upon land knows of all prior incumbrances of record affecting it Home Owners' Loan Corp. v. Sears, Roebuck & Co., 123 Conn. 232, 242, 193 A. 769 (1937).   In several instances, however, Connecticut courts have recognized an exception to the general rule and applied the doctrine of equitable subrogation.   Rosenblit v. Williams, 57 Conn.App. 788, 793, 750 A.2d 1131, cert. denied, 254 Conn. 906, 755 A.2d 882 (2000).   In such cases, the courts have “held that one who advances money to discharge a prior lien on real or personal property and takes a new mortgage as security is entitled to be subrogated to the rights under the prior lien against the holder of an intervening lien of which he was ignorant.”  (Internal quotation marks omitted.)  Id. At least one approach to equitable subrogation provides that a party is not ignorant of a lien if that party has constructive notice of the lien.   U.S. Bank, N.A. v. Wadman, Superior Court, judicial district of New Britain, Docket No. CV 07 6000990 (September 28, 2009, Vacchelli, J.);   see generally Equicredit Corp. v. Kasper, Superior Court, judicial district of Windham, Docket No. CV 06 5000595 (July 8, 2009, Potter, J.T.R.) (48 Conn. L. Rptr. 181, 183).

“One of the most common mistakes connected with releases of mortgages is when the mortgage is renewed and the prior lien released in ignorance of intervening rights.   Ignorance in such a case is regarded in equity as equivalent to a mistake, and relief will be granted when there is no other element of estoppel, and when the party seeking relief has not delayed action ․ When a new mortgage is substituted in ignorance of an intervening lien, the mortgage released through mistake may be restored in equity and given its original priority as a lien.”  (Internal quotation marks omitted.)  Independence One Mortgage Corp. v. Katsaros, supra, 43 Conn.App. 75.  “Our Supreme Court has acknowledged that trial courts may act in equity to grant relief from the consequences of a mistake if the result would be unjust enrichment.   Connecticut National Bank v. Chapman, 153 Conn. 393, 398, 216 A.2d 814 (1966).”   Equicredit Corp. v. Kasper, Superior Court, supra, Docket No. CV 06 5000595 (48 Conn. L. Rptr. 181, 183).

“[I]n Connecticut National Bank v. Chapman, supra, 153 Conn. 396, the court upheld the application of equitable subrogation where the plaintiff released its priority lien in order to provide a new mortgage to its mortgagor and the plaintiff subsequently became aware of the defendants' subordinate purchase money mortgage on the property of which it had known but had negligently overlooked.   The court held that the plaintiff's lien should retain priority because giving the defendants priority would give them an unexpected and undeserved windfall ․ It appears that the defendants neglected to maintain the property for a period of time, which caused the property's value to depreciate ․ Thus, giving the defendants priority would produce a windfall for them because, in the event of a foreclosure, the plaintiff would have less money from the foreclosure to satisfy the liens ․ Furthermore, the court found that reordering the priorities would not work an injustice on the defendants because their property rights were not prejudiced by the plaintiff's conduct.”  Equicredit Corp. v. Kasper, supra, Superior Court, Docket No. CV 06 5000595 (48 Conn. L. Rptr. 181);  see also Hidden Glen Condominium Ass'n., Inc. v. St Pierre, Superior Court, judicial district of New Britain, Docket No. CV 94 0460775 (December 18, 1995, Arena, J.) (15 Conn. L. Rptr. 554);  Household Realty v. Martin, Superior Court, judicial district of Litchfield, Docket No. CV 90 0054221 (February 6, 1994, Walsh, J.).

In the recent decision of U.S. Bank N.A. v. Wadman, supra, Superior Court, Docket No. CV 07 600990, which involves arguments and facts similar to those in the present case, the plaintiff, U.S. Bank, sought to foreclose a note and mortgage from the Wadmans, the defendants.   Two other defendants, who the court referred to as the Rosenblit defendants, filed a motion for summary judgment in an attempt to resolve the mortgage priority issues in advance of trial.  Id. Although the court ultimately denied the motion for summary judgment because there were questions of material fact, U.S. Bank alleged that it was entitled to equitable subrogation because it refinanced a first mortgage on the property that was prior in right to the Rosenblit defendants' mortgage, it was unaware of the Rosenblit defendants' mortgage when it provided its loan for refinancing and it provided the loan with the intention of obtaining first priority on the property.  Id.

Before reaching a conclusion in Wadman, Judge Vacchelli synthesized the rules from the leading cases of Rosenblit v. Williams, supra, 57 Conn.App. 788, where the Appellate Court applied the doctrine of equitable subrogation, and Independence One Mortgage Corp. v. Katsaros, supra, 43 Conn.App. 71, where the Appellate Court declined to apply the doctrine.  “[U]nder these rules, if U.S. Bank was innocently ignorant of an intervening Rosenblit loan in this case and reasonably expected first mortgage position in its refinance of the ․ loans, it could be eligible for priority status despite the fact that the Rosenblit lien was recorded first, and especially if the Rosenblit defendants never expected to be paid back, and only expected junior status anyway, and if there were other equities that would make their advancement in status unfair ․ On the other hand, if U.S. Bank, and/or its closing counsel, was not ignorant of the Rosenblit lien and/or failed to include it in the bargain, and especially if the equities favor the Rosenblit defendants, there is no justification for invocation of that doctrine.”  (Citations omitted;  internal quotation marks omitted.)  U.S. Bank, N.A. v. Wadman, supra, Superior Court, Docket No. CV 07 6000990.

The court must deny Mortgage Electronic's motion for summary judgment because Mortgage Electronic has not established that it was ignorant of the plaintiff's alleged lien.   Mortgage Electronic submits evidence that Barbara Bourgeois' attorney was unaware of the plaintiff's lien and that Barbara Bourgeois failed to reveal the plaintiff's lien in her mortgage application.   While this establishes that Mortgage Electronic lacked actual knowledge of the plaintiff's lien, Mortgage Electronic fails to establish that it lacked constructive knowledge of the plaintiff's lien, which the court may consider in determining whether Mortgage Electronic was ignorant.   Mortgage Electronic does not allege that the plaintiff failed to record her lien properly, and it never submits evidence or alleges that it conducted a title search of the property.   If the plaintiff's lien were properly recorded on May 9, 2005, as she alleges, Mortgage Electronic would have had notice of the plaintiff's mortgage, and it could have attempted to obtain a release of that mortgage during the refinancing process.   Moreover, although Mortgage Electronic alleges that the plaintiff will receive an unfair windfall if it is not given priority, it fails to establish the extent of this unfair windfall, as the lender did in Chapman.   Instead, it simply alleges that the plaintiff will receive an unfair windfall.   This is not enough to convince the court that the equities weigh in Mortgage Electronic's favor on this motion, especially in light of its failure to establish ignorance.   As a result, the court denies Mortgage Electronic's motion for summary judgment on this ground.

BY THE COURT,

John W. Pickard

FOOTNOTES

FN1. Arnaud Bourgeois and Barbara Bourgeois refer to “B. Bourgeois Antiques, LLC,” not “R. Bourgeois Antiques, LLC.” This memorandum refers to R. Bourgeois Antiques, LLC because it is the name used in the complaint and summons..  FN1. Arnaud Bourgeois and Barbara Bourgeois refer to “B. Bourgeois Antiques, LLC,” not “R. Bourgeois Antiques, LLC.” This memorandum refers to R. Bourgeois Antiques, LLC because it is the name used in the complaint and summons.

FN2. Hereinafter Mortgage Electronic refers to Mortgage Electronic acting on behalf of American Mortgage..  FN2. Hereinafter Mortgage Electronic refers to Mortgage Electronic acting on behalf of American Mortgage.

FN3. The plaintiff submitted revised responses to Mortgage Electronic's April 13, 2009 requests for admissions on July 13, 2009.   In response to the statement:  “On March 8, 2004, Holly Flor and R.V. Mangels conveyed all their interest in the [Woodbury] property ․ to Barbara Bourgeois,” the plaintiff replied:  “Holly Flor and R.V. Mangels conveyed title to the ․ [Woodbury] property and acquired a mortgage title interest in the premises from Barbara Bourgeois.”   The plaintiff also admitted that she did not loan Barbara Bourgeois any money on January 1, 2004 as a result of the mortgage and note dated January 1, 2004..  FN3. The plaintiff submitted revised responses to Mortgage Electronic's April 13, 2009 requests for admissions on July 13, 2009.   In response to the statement:  “On March 8, 2004, Holly Flor and R.V. Mangels conveyed all their interest in the [Woodbury] property ․ to Barbara Bourgeois,” the plaintiff replied:  “Holly Flor and R.V. Mangels conveyed title to the ․ [Woodbury] property and acquired a mortgage title interest in the premises from Barbara Bourgeois.”   The plaintiff also admitted that she did not loan Barbara Bourgeois any money on January 1, 2004 as a result of the mortgage and note dated January 1, 2004.

FN4. The responses refer to “American Mortgage Network, Inc.,” not Mortgage Electronic.   Given that Mortgage Electronic is acting on behalf of American Mortgage, and for the sake of consistency, “Mortgage Electronic” is used here..  FN4. The responses refer to “American Mortgage Network, Inc.,” not Mortgage Electronic.   Given that Mortgage Electronic is acting on behalf of American Mortgage, and for the sake of consistency, “Mortgage Electronic” is used here.

FN5. Barbara Bourgeois and R. Bourgeois Antiques, LLC also admit other statements.   Namely, they admit that the plaintiff did not loan Barbara Bourgeois any money on January 1, 2004 as a result of the mortgage and note dated January 1, 2004, that the plaintiff did not loan Barbara Bourgeois any money at any point in time as a result of the mortgage and note dated January 1, 2004, and that Barbara Bourgeois did not have knowledge of the plaintiffs' mortgage dated January 1, 2004, at the time she gave the mortgages to Mortgage Electronic, nor did she disclose the existence of the plaintiff's mortgage to Mortgage Electronic..  FN5. Barbara Bourgeois and R. Bourgeois Antiques, LLC also admit other statements.   Namely, they admit that the plaintiff did not loan Barbara Bourgeois any money on January 1, 2004 as a result of the mortgage and note dated January 1, 2004, that the plaintiff did not loan Barbara Bourgeois any money at any point in time as a result of the mortgage and note dated January 1, 2004, and that Barbara Bourgeois did not have knowledge of the plaintiffs' mortgage dated January 1, 2004, at the time she gave the mortgages to Mortgage Electronic, nor did she disclose the existence of the plaintiff's mortgage to Mortgage Electronic.

FN6. Although Mortgage Electronic alleges in its fourth affirmative defense that the plaintiff's mortgage is void because it does not comply with § 47-10, it never raises this argument in its motion for summary judgment or in its supporting memorandum of law..  FN6. Although Mortgage Electronic alleges in its fourth affirmative defense that the plaintiff's mortgage is void because it does not comply with § 47-10, it never raises this argument in its motion for summary judgment or in its supporting memorandum of law.

FN7. In her affidavit, Carson states that the only records in the loan files that specifically address the title status of the Woodbury property are the title insurance policies.   Carson states that she reviewed the loan file and Barbara Bourgeois' credit report and loan application.   Based on these documents, Carson concludes:  “Neither loan origination file contains any evidence of debt to or a lien on the [Woodbury] property by Holly Flor [the plaintiff].   The loan origination file indicates that at no time prior to the closing date of June 21, 2005 did [Mortgage Electronic] have any document or record identifying a mortgage on the [Woodbury] property held by Holly Flor [the plaintiff].”.  FN7. In her affidavit, Carson states that the only records in the loan files that specifically address the title status of the Woodbury property are the title insurance policies.   Carson states that she reviewed the loan file and Barbara Bourgeois' credit report and loan application.   Based on these documents, Carson concludes:  “Neither loan origination file contains any evidence of debt to or a lien on the [Woodbury] property by Holly Flor [the plaintiff].   The loan origination file indicates that at no time prior to the closing date of June 21, 2005 did [Mortgage Electronic] have any document or record identifying a mortgage on the [Woodbury] property held by Holly Flor [the plaintiff].”

FN8. See footnote 3 and accompanying text..  FN8. See footnote 3 and accompanying text.

FN9. The parties' equitable subrogation arguments are addressed later in this memorandum..  FN9. The parties' equitable subrogation arguments are addressed later in this memorandum.

FN10. In her affidavit, Attorney D'Alton states that the plaintiff and Arnaud Bourgeois directed her to “draft a note for the signatures of B. Bourgeois Antiques, LLC, Barbara Bourgeois and Arnaud Bourgeois” in December 2003 and that she was advised that the note was “to be secured by a mortgage deed against property known as 270 Main Street South in ․ Woodbury, Connecticut, which was to be acquired and owned by Barbara Bourgeois.”   Attorney D'Alton also states that she prepared this note and delivered it to the plaintiff and that on March 8, 2004, she represented Greenpoint in a mortgage transaction in connection with the sale of the Woodbury property from the plaintiff and R.V. Mangels to Barbara Bourgeois.   Since Attorney D'Alton had been advised that Barbara Bourgeois was unable to attend the closing, she prepared a power of attorney form for Barbara Bourgeois that was approved by the Connecticut Attorneys Title Insurance Company prior to the closing.   Attorney D'Alton states that Arnaud Bourgeois attended the closing on March 8, 2004, and executed the power of attorney to her, as well as the Greenpoint mortgage documents.   Additionally, Attorney D'Alton states that Arnaud Bourgeois executed the note that Attorney D'Alton had prepared in December 2003 after he executed the Greenpoint mortgages.   Finally, Attorney D'Alton alleges:  “The mortgage [to the plaintiff] was left with me with instructions that it should not be recorded until I was told to do so by Holly Flor. In early May 2005, Holly Flor contacted me and advised me that the mortgage should be recorded, which I did on May 9, 2005.”.  FN10. In her affidavit, Attorney D'Alton states that the plaintiff and Arnaud Bourgeois directed her to “draft a note for the signatures of B. Bourgeois Antiques, LLC, Barbara Bourgeois and Arnaud Bourgeois” in December 2003 and that she was advised that the note was “to be secured by a mortgage deed against property known as 270 Main Street South in ․ Woodbury, Connecticut, which was to be acquired and owned by Barbara Bourgeois.”   Attorney D'Alton also states that she prepared this note and delivered it to the plaintiff and that on March 8, 2004, she represented Greenpoint in a mortgage transaction in connection with the sale of the Woodbury property from the plaintiff and R.V. Mangels to Barbara Bourgeois.   Since Attorney D'Alton had been advised that Barbara Bourgeois was unable to attend the closing, she prepared a power of attorney form for Barbara Bourgeois that was approved by the Connecticut Attorneys Title Insurance Company prior to the closing.   Attorney D'Alton states that Arnaud Bourgeois attended the closing on March 8, 2004, and executed the power of attorney to her, as well as the Greenpoint mortgage documents.   Additionally, Attorney D'Alton states that Arnaud Bourgeois executed the note that Attorney D'Alton had prepared in December 2003 after he executed the Greenpoint mortgages.   Finally, Attorney D'Alton alleges:  “The mortgage [to the plaintiff] was left with me with instructions that it should not be recorded until I was told to do so by Holly Flor. In early May 2005, Holly Flor contacted me and advised me that the mortgage should be recorded, which I did on May 9, 2005.”

FN11. Even if there are compliance problems under this statute, § 47-36aa operates as a validating act to cure certain defects or deficiencies in mortgage deeds and other documents..  FN11. Even if there are compliance problems under this statute, § 47-36aa operates as a validating act to cure certain defects or deficiencies in mortgage deeds and other documents.

FN12. See generally East Haven Builders Supply, Inc. v. Fanton, 80 Conn.App. 734, 744, 837 A.2d 866 (2004) (“A party's response to a request for admissions is binding as a judicial admission unless the judicial authority permits withdrawal or amendment”)..  FN12. See generally East Haven Builders Supply, Inc. v. Fanton, 80 Conn.App. 734, 744, 837 A.2d 866 (2004) (“A party's response to a request for admissions is binding as a judicial admission unless the judicial authority permits withdrawal or amendment”).

Pickard, John W., J.