Deutsche Bank National Trust Company, as Trustee v. Christopher Plummer et al. (2010)

MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (# 124)

Background

On May 17, 2005, the defendant, Christopher Plummer, owed Ameriquest Mortgage Company the sum of $720,000.00 as evidenced by a promissory note for said sum dated on said date, and payable to Ameriquest Mortgage Company with interest.   On said date, to secure the note, the defendant, Christopher Plummer, mortgaged to Ameriquest Mortgage Company a certain piece of parcel of land together with all the buildings and improvements thereon, known as 15 Hamburg Road, Lyme, Connecticut.   Said note and mortgage deed were subsequently assigned to Deutsche Bank National Trust Company, as trustee of Ameriquest Mortgage Securities, Inc. Asset backed pass through certificates, Series 2005-06 under the Pooling and Servicing Agreement dated as of July 1, 2005, Without recourse, by virtue of assignment dated October 27, 2006 and recorded in Volume 138 at page 401 of the Lyme Land Records.

The promissory note provides that the indebtedness may become due upon default.   The plaintiff contends that the defendant failed and neglected to pay the installments when due.   The plaintiff has accelerated the indebtedness, claims that the defendant has failed and neglected to pay the outstanding balance due and owing on the note.   The defendant seeks a foreclosure on said mortgage in count two of the complaint.

Additionally, the legal description attached to the mortgage deed contained scrivener's errors and the plaintiff is, therefore, seeking a reformation of the mortgage deed in count one of the complaint.

The defendant, Christopher Plummer, filed an answer, special defenses and counterclaim dated May 2, 2008.   The plaintiff now moves for summary judgment (motion # 124) as to liability with respect to the answer, special defenses and counterclaim filed by the defendant, Christopher Plummer.

Applicable Law

Practice Book § 17-49 “provides that 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 ․ in deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party ․ The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ․ and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.”   (Citations omitted;  internal quotation marks omitted.)  Barrett v. Montesano, 269 Conn. 787, 791-92, 849 A.2d 839 (2004).  “The existence of the genuine issue of material fact must be demonstrated [submitted by the nonmovant] 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.)  DeCorso v. Watchtower Bible & Tract Society of New York, Inc., 78 Conn.App. 865, 871, 829 A.2d 38, cert. denied, 266 Conn. 931, 837 A.2d 805 (2003).

“[Section 17-46] sets forth three requirements for construction of affidavits submitted in a summary judgment proceeding.   The material must (1) be based on ‘personal knowledge’;  (2) constitute facts that would be admissible at trial;  and (3) affirmatively show that the affiant is competent to testify to the matters stated in the affidavit.”  Barrett v. Danbury Hospital, 232 Conn. 242, 251, 654 A.2d 748 (1995).   The court may consider not only the acts presented by the parties' affidavits and exhibits, but also the “inferences which could be reasonably and logically drawn from them ․” United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 381, 260 A.2d 596 (1969).

Analysis

The plaintiff contends that there is no genuine issue as to any material fact, entitling it to a summary judgment as to liability on count one and count two of the complaint.   The defendant, in his answer, admits that he signed the Note and Mortgage Deed and that the payments are in default but denies that the debt is now due and unpaid.   He further denies the allegations regarding the scrivener's errors contained in the legal description.   He also leaves to the plaintiff's proof that it is the owner of the Note and Mortgage Deed.

The plaintiff attached to its brief (Exhibit B), a copy of the Mortgage Deed with a legal description, together with a copy of the quit claim deed conveying the subject property to the defendant.   A comparison of the legal description indicates that two lines of the description of the “Second Piece” were omitted.   The defendant has filed no affidavits or evidence to the contrary.   This court concludes there is no issue of material fact concerning the obvious scrivener's error.  (First Count.)

As to the special defenses raised by the defendant to the plaintiff's complaint (Second Count) this court shall deal with each special defense in order of their filing.

First Special Defense

The defendant contends that he “authorized the plaintiff to debit his account with Liberty bank for the automatic payment of the mortgage;  however, the plaintiff failed to properly debit the account thereby causing a technical default.”   The plaintiff responded by filing an affidavit dated February 9, 2009, claiming that a payment draft authorization form was provided to the defendant.   He did not complete and return the form.   The plaintiff also filed an affidavit dated January 8, 2009 confirming that individual's electronic transfers were authorized by the defendant, however, several were returned due to insufficient funds, leaving the note and mortgage in default.   The loan was referred for foreclosure on September 19, 2007 with the affidavit stating that no further loan payments were made since that date.   The affidavit of Carmen Armijo further states that she was the servicing agent for the present servicer City Residential Lending, Inc. and the prior servicing agent AMC Mortgage Services.

The defendant has failed to provide affidavits or exhibits showing that he in fact did execute a payment draft authorization form as requested to permit an automatic withdrawal of funds from his Liberty Bank account.   He has further failed to provide proof that the note and mortgage were paid in full as of September 19, 2007, which is consistent with his answer which admits that his loan is in default.

Second Special Defense

The defendant contends in his Second Special Defense that “[t]he plaintiff refused to accept payment of the mortgage offered by the defendant, Christopher Plummer, in violation of its obligations pursuant to the mortgage deed and Connecticut law.”   The plaintiff's affidavit of January 8, 2009, together with the exhibits attached evidences the plaintiff's acceptance of individual electronic transfer as specifically authorized by the defendant.   However, as evidenced by the plaintiff's affidavit and exhibits, the payments were not consistent and several were returned due to insufficient funds, thereby causing the default admitted to by the defendant in his pleadings.   The defense of payment is a valid special defense to a mortgage foreclosure.  Chase Manhattan Mortgage Corp. v. Machado, 83 Conn.App. 183, 187-88, 850 A.2d 260 (2004).   The defendant has failed to prove that he has made payment in accordance with the terms of the Note and Mortgage.   While the defendant, in his affidavit dated September 23, 2009, claims that “the affidavit provided by Carmen Armijo in this case does not accurately reflect the history and status of the note and mortgage, including, but not limited to, the balance, payment history, payment method, ownership of the note and mortgage, interest rate agreed upon, amount owed on the note and mortgage ․” He provides, however, no proof that the note and mortgage have been paid as required.

Counterclaims

The plaintiff has sought summary judgment on the defendant's three counterclaims filed with his special defenses on May 2, 2008.   This court will deal with each counterclaim in order as presented by the defendant.

Counterclaim (First Count)

The defendant alleges in his first count that “the plaintiff failed to honor its obligations with regard to the loan transaction.”   He first contends that they failed to honor an automatic debit and that they refused to accept payment.   Those allegations have been dealt with above.   The plaintiff has failed to submit any documents proving that he executed an automatic withdrawal as requested and that he made any payments were inappropriately rejected.

The defendant further contends that the plaintiff, through its Agents, Servants, Employees, Attorneys, Successors or Assigns (1) failed to properly notify the defendant of a change in adjustable rate payments due under the note and (2) failed to give proper notice to the defendant of a transfer of ownership and/or servicing of the loan.

These allegations are contrary to the documents and affidavits submitted by the plaintiff.   The affidavit of January 8, 2009 includes a letter dated September 14, 2007 was sent to the defendant notifying him of a transfer of the service of the loan.   The affidavit also avers that letters were sent to the defendant on April 20, 2007, October 22, 2007 and April 21, 2008, advising him of the interest rate changes.   The defendant has provided no proof to the contrary in his affidavit of September 23, 2009, and documents submitted with the affidavit.

Counterclaim (Second Count)

The defendant, in the second count of his counterclaim, incorporates the allegations of the First Count and further contends that “the plaintiff failed to act in good faith and deal fairly with the defendant.”   The defendant relies on the allegations of the first count which mirrored the allegations of the special defenses.   Based upon the affidavits and documents presented, the defendant is left without a legally viable counterclaim.

Counterclaim (Third Count)

The defendant, in the third count of his counterclaim, again incorporates the allegations of the prior counterclaim (Second Count) and further claims that the “Plaintiff's conduct constituted unfair trade practices in violation of C.G.S. § 42-110b [“CUTPA”].   The defendant relies on allegations set forth in his special defense which have been previously found insufficient based upon the affidavits and documents submitted.

In addition to the above infirmities, the plaintiff has failed to state a claim or cause of action under CUTPA.   In order to make such a claim, the defendant must prove the following elements (1) whether the practice without necessarily having been previously considered unlawful offends public policy as has been established by statutes, common law or otherwise;  (2) whether it is immoral, unethical, oppressive or unscrupulous;  and (3) whether it causes substantial injury to consumers, competitors or businessmen.   Rameria v. HealthNet of N.E. Inc., 285 Conn. 1 (2008);  Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 589-93 (1995).

The defendant has failed to properly allege the violation of CUTPA or in the alternative has presented his claim on legally insufficient allegations.

Order

The plaintiff's motion for summary judgment # 124 is hereby granted as to liability only.

Devine, J.

Devine, James J., J.