Deutsche Bank v. Christopher Plummer (2010)

MEMORANDUM OF DECISION RE MOTION TO REARGUE

FACTS

The plaintiff filed a motion for summary judgments on August 29, 2009.   The defendant, Christopher Plummer, filed an objection to said motion on September 25, 2009.   On November 23, 2009, the court (Devine, J.) heard argument on the motion.   By memorandum of decision dated January 14, 2010, the court granted the plaintiff's motion for summary judgment as to liability.

The defendant filed a motion to reargue (dated January 26, 2010) on January 29, 2010.   The plaintiff filed an objection to the motion to reargue on February 11, 2010.   The defendant thereafter filed his brief on February 17, 2010.   The parties submitted supplemental briefs, the plaintiff's dated April 27, 2010 and the defendant's dated April 29, 2010.   The court heard argument on May 17, 2010.

LAW AND ARGUMENT

“[T]he purpose of a reargument is ․ to demonstrate to the court that there is some decision or some principle of law which would have a controlling effect, and which has been overlooked or that there has been a misapprehension of facts ․ It also may be used to address ․ claims of law that the [movant] claimed were not addressed by the court ․ [A] motion to reargue [however] is not to be used as an opportunity to have a second bite of the apple.”   Chapman Lumber, Inc. v. Tager, 288 Conn. 69 (2008).

In his motion to reargue, the defendant again challenges the affidavits submitted by the plaintiff together with its motion for summary judgment.   These arguments have already been made, and he does not present any “new” information which was not available at the time of argument on the motion for summary judgment.

The only “new” evidence the defendant has provided with his motion to reargue is a Form 1098 which he received subsequent to the hearing on the motion for summary judgment.   The defendant argues that the Form 1098 proves two things:  1) the Deutsche Bank National Trust Company, as Trustee (“Deutsche Bank”) is not the owner of the note and mortgage deed, and 2) that he made payments on his loan in 2009.

However, the very bottom of the Form 1098 indicates that the form “reflects all payments made to CitiMortage, Inc. and Citi Residential Lending, Inc. The defendant's loan has had several servicers, including Citi Residential Lending, Inc. Although the loan is owned by Deutsche Bank, it is serviced by, and payments are made to, other entities.   Therefore, the Form 1098 does not state that the plaintiff is not the owner of the note and mortgage deed.   The court further found, at the time of the granting of the summary judgment that Deutsche Bank National Trust Company, as Trustee, was the holder of the note and mortgage deed.

Furthermore, the defendant argues that the Form 1098 proves that he made payments in 2009.   The plaintiff, in response to the motion to reargue submitted a corrected Form 1098 dated January 22, 2010, together with a letter explaining the error in the previous Form 1098.   Even if the corrected Form 1098 had not been provided, the defendant nevertheless failed to provide any new evidence which would have made a difference in the outcome of the motion for summary judgment.   Although the original Form 1098 seemed to indicate that mortgage interest was paid in 2009, the form also cautions the recipient that “you may only deduct interest to the extent it was incurred by you, actually paid by you ․” Therefore, the form itself provides for the possibility that the mortgage interest was paid by someone other than the borrower.   The defendant had the opportunity at the hearing on the motion for summary judgment to provide evidence of any payments made, but he failed to do so.   He also has failed to present any evidence at the reargument hearing that he made any payments on the mortgage in 2009.   There is no question of fact that the defendant failed to make any mortgages subsequent to the default that initiated the present foreclosure action.

In light of the corrected Form 1098 attached hereto, and the fact that the defendant was unable to provide any proof of payment at the hearing, the plaintiff contends that he simply used the erroneous Form 1098 as a way to “have a second bite of the apple,” all the while failing to mention that he received a corrected Form 1098.

The defendant further argues that the plaintiff bank has not proven that there were no pre-arrangements to withdraw money from the defendant's bank account as was previously argued and briefed at the hearing on the summary judgment.   That argument was without merit in that the documents previously presented are devoid of any evidence that the defendant executed a continuing withdrawal form for the plaintiff and/or its servicers to deduct the monthly mortgage payments from the defendant's bank accounts.

This court concludes, based upon the additional evidence submitted by the parties that the plaintiff is entitled to summary judgment as to liability.

ORDER

The relief requested by the defendant is denied.   Plaintiff's motion for summary judgment is hereby reaffirmed.

Devine, J.

Devine, James J., J.