U.S. Bank National Association as Trustee v. Mary T. Joseph (2010)

MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT

The plaintiff has moved for summary judgment in this foreclosure action on the grounds that there is no genuine issue of fact and the plaintiff is entitled to judgment as a matter of law.

Facts and Procedural History

The plaintiff commenced this action against the defendant, Mary Joseph, pursuant to Connecticut General Statutes § 49-30.   The complaint alleges that the defendant executed and delivered to Mortgage Electronic Registration Systems, Inc. As Nominee for Ameritrust Mortgage Company, a mortgage deed of that certain piece or parcel of land, together with the improvements thereon, known as 36-38 Bidwell Avenue, East Hartford, Connecticut.   The mortgage deed was dated March 17, 2006 and was recorded on September 12, 2006 in the East Hartford Land Records.

The mortgage deed was thereafter assigned to U.S. Bank National Association as Trustee, the plaintiff, which is the owner and holder of the note and mortgage deed.

The payments due under the mortgage note stopped as of August 22, 2007.   The plaintiff started a foreclosure action, U.S. Bank Nation Association as Trustee v. Nigel Joseph et al., Docket No. HHD-CV-07-5015460, in this court.   A judgment of strict foreclosure was entered in that case against Nigel Joseph and Mary Joseph with law days set to commence on February 9, 2009.   After title in the property vested, this court granted a Motion to Open Judgment and Dismissed the complaint against Mary Joseph on the grounds of defective service of process, solely as to the defendant Mary Joseph.

Thereafter, the plaintiff commenced this action pursuant to Connecticut General Statutes § 49-30 to divest Mary Joseph of her interest in the property.   On March 31, 2010, the defendant filed an Answer and Special Defense.   The Special Defense states that the defendant Mary Joseph did not realize that the Mortgage Deed was a Mortgage Deed because she cannot read.

The plaintiff has submitted an affidavit supporting its claims for foreclosure against the defendant.   Notwithstanding her inability to read, the defendant has submitted an affidavit in which she states that she cannot read or write English, that her son brought her to a building and told her to sign a document in March 2006.   She did not realize that the document was a mortgage deed because her son did not tell her that it was.   The defendant has also submitted the affidavit of her son, Nigel Joseph, in which he indicates that his mother, Mary Joseph, signed the mortgage deed because he told her to.   He received money from the plaintiff to pay off the existing mortgage on the property and to pay off some of his debts.

The defendant has presented no evidence that she or her son ever advised the plaintiff's predecessor that the defendant could not read and there is absolutely no evidence that the plaintiff's predecessor was aware of that fact.

Discussion of Law and Ruling

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.  Fojtik v. Hunter, 265 Conn. 385, 389, 828 A.2d 596 (2003);  Mytych v. May Dept. Stores Co., 260 Conn. 152, 158-59, 793 A.2d 1068 (2002);  Home Ins. Co. v. Aetna Life & Casualty Co., 235 Conn. 185, 202, 663 A.2d 1001 (1995).   Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact;  D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980);  a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact, together with the evidence disclosing the existence of such an issue.  Practice Book §§ 17-45, 17-46;  Burns v. Hartford Hospital, 192 Conn. 451, 455, 472 A.2d 1257 (1984).   In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.  Town Bank & Trust Co. v. Benson, 176 Conn. 304, 309, 407 A.2d 971 (1978);  Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 317, 477 A.2d 1005 (1984).   The test is whether a party would be entitled to a directed verdict on the same facts.  Batick v. Seymour, 186 Conn. 632, 647, 443 A.2d 471 (1982);  New Milford Savings Bank v. Roina, 38 Conn.App. 240, 243-44, 659 A.2d 1226 (1995).

Summary judgment should only be granted if the pleadings, affidavits and other proof submitted demonstrate that there is no genuine issue as to any material fact.  Scinto v. Stam, 224 Conn. 524, 530, cert. denied, 114 S.Ct. 176, 126 L.Ed.2d 136 (1993);  Connell v. Colwell, 214 Conn. 242, 246, 571 A.2d 116 (1991).   Summary judgment is “designed to eliminate the delay and expense of litigating an issue where there is no real issue to be tried.”  Wilson v. City of New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).

In Fidelity Bank v. Krenisky, 72 Conn.App. 700, 705-06 (2002), the Court stated:

Historically, defenses to a foreclosure action have been limited to payment, discharge, release or satisfaction ․ or, if there had never been a valid lien ․ 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 ․ 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 ․ LaSalle National Bank v. Freshfield Meadows, LLC, 69 Conn.App. 824, 833, 798 A.2d 445 (2002).

The defendant has presented no evidence whatsoever that the original mortgagee had notice that the defendant could not read.   Absent such evidence, there is no “inequitable conduct” by the plaintiff.   The only inequitable conduct involved here is that of the defendant's son.   His conduct was not only inequitable, but fraudulent both as to his mother and as to the mortgagee.   He failed to advise his mother that she was signing a mortgage and failed to advise the mortgagee that his mother could not read.

A party may not assert as a defense to an action on a contract that she did not understand what she was signing.   It is the general rule that a contract is to be interpreted according to the intent expressed in its language and not by an intent the court may believe existed in the minds of the parties.  John M. Glover Agency v. RDB Building, LLC, 69 Conn.App. 640, 645, 760 A.2d 980 (2000).   Where the language of a contract is clear and unambiguous, a party may not assert as a defense to an action on the contract that she did not understand what she was signing.  Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314, 326 (2005).   Absent some notice that the defendant could not read, the plaintiff's predecessor was entitled to rely on the foregoing legal principles.   The Mortgage Deed signed by the defendant was clearly titled “OPEN END MORTGAGE DEED,” and her signature was witnessed by two people, putting her on notice that she was signing a document of some legal significance.

For the foregoing reasons, summary judgment may enter in favor of the plaintiff.

By the court,

Aurigemma, J.

Aurigemma, Julia L., J.