PMB LP v. LLC (2010)

MEMORANDUM OF DECISION MOTION FOR SUMMARY JUDGMENT # 109

FACTS

In this mortgage foreclosure action, the plaintiff, PMB Mortgages, LP, filed a motion for summary judgment and memorandum in support on June 4, 2010.   The defendants, Abigail in Colchester, LLC (Abigail), Hemraj Khona and Hemlatta Khona,¹ were granted an extension of time to respond to the motion but failed to do so.   The plaintiff moves for summary judgment as to liability only on count one of the complaint.

The plaintiff alleges the following facts in count one of its complaint.   On or about July 28, 2005, Abigail executed and delivered to the plaintiff a promissory note in the original principal amount of $620,000.   Also on that date, Abigail executed and delivered to the plaintiff a mortgage on property known as Lot 22, Map 2-12, Buckley Hill Road, Colchester, Connecticut to secure the promissory note.   The mortgage was recorded in the Colchester Land Records.   The mortgage was later modified by a mortgage modification agreement dated March 12, 2009, which is also recorded in the Colchester Land Records.   The plaintiff is the holder of the note and mortgage.

The note is in default and the plaintiff has elected to accelerate the balance due and declare the note to be due in full.   The plaintiff provided written notice to Abigail, but Abigail has failed to cure the default.   There are three encumbrances of record upon the property that are subordinate to the plaintiff's lien, including a mortgage deed in favor of Hemraj Khona.   In the second count of the complaint, the plaintiff alleges that Hemraj Khona and Hemlatta Khona guaranteed all sums due under the note, including collection costs and attorneys fees.

DISCUSSION

“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.”  (Internal quotation marks omitted.)  Durrant v. Board of Education, 284 Conn. 91, 99-100 n.7, 931 A.2d 859 (2007).  “[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).  “A summary judgment, interlocutory in character, may be rendered on the issue of liability alone, although there is a genuine issue as to damages.”  Practice Book § 17-50.

“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 the 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.   To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ․ Once the moving party has met its burden ․ the opposing party must present evidence that demonstrates the existence of some disputed factual issue ․ It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.   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.)   Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).

When a party moves for summary judgment “and there [are] no contradictory affidavits, the court properly [decides] the motion by looking only to the sufficiency of the [movant's] affidavits and other proof.”  Heyman Associates No. 1 v. Insurance Co. of Pennsylvania, 231 Conn. 756, 795, 653 A.2d 122 (1995).

The plaintiff asserts that there are no genuine issues of fact and that it is entitled to judgment as a matter of law.   The plaintiff argues that it is the owner and holder of the mortgage and note and that the mortgage and note are in default.   The plaintiff submits an affidavit that states that Abigail has not made a payment on the loan since April 27, 2009, and that written notice of default was provided to Abigail.   Further, the plaintiff has provided a copy of the mortgage, which provides that the plaintiff is entitled to foreclose on the mortgage and demand immediate payment upon default under the promissory note.

I

“In a mortgage foreclosure action, [t]o make out its prima facie case, [the foreclosing party has] to prove by a preponderance of the evidence that it [is] the owner of the note and mortgage and that [the mortgagor has] defaulted on the note.”  (Internal quotation marks omitted.)  Franklin Credit Management Corp. v. Nicholas, 73 Conn.App. 830, 838, 812 A.2d 51 (2002), cert. denied, 262 Conn. 937, 815 A.2d 136 (2003).  “Furthermore, the foreclosing party must demonstrate that all conditions precedent to foreclosure, as mandated by the note and mortgage, have been satisfied.”   Washington Mutual Bank, F.A. v. Martins, Superior Court, judicial district of New London, Docket No. CV 03 0564550 (March 23, 2004, Martin, J.).

In the present case, the plaintiff has submitted a copy of the note, which is signed by Lloyd Bowden and Hemraj Khona on behalf of Abigail.   The deed lists Abigail as the borrower/trustor/mortgagor and the plaintiff as the lender/beneficiary/mortgagee.   Additionally, the plaintiff has submitted the mortgage deed, which is signed by Lloyd Bowden on behalf of Abigail.   The mortgage is made by Abigail to the plaintiff.   The plaintiff has also submitted the affidavit of Paul Elis, the president of PMB Capital, Inc. and a general partner of PMB Mortgages, LP. The affidavit states that the plaintiff is the holder of the note and the mortgage and that the note is in default.   The affidavit states that Abigail failed to make the payment due on May 27, 2009, and payments due every month thereafter.   The affidavit lists the amount due, after interest and charges, as $728,599.71.

The plaintiff has satisfied its burden of showing that it is the owner of the note and mortgage and that the mortgagor has defaulted on the note.   The defendants have failed to produce any evidence that creates a genuine issue with respect to these facts.  “The absence of responsive evidentiary facts or substantial evidence outside of the pleadings to rebut the [movant's] allegations in its motion for summary judgment is fatal ․” Gianetti v. Health Net of Connecticut, Inc., 116 Conn.App. 459, 469, 976 A.2d 23 (2009).   The plaintiff has established a prima facie case for mortgage foreclosure.

II

“When a complaint and supporting affidavits establish an undisputed prima facie case for a foreclosure action, a court must only determine whether [a] special defense is legally sufficient before granting summary judgment.”   LaSalle National Bank v. Shook, Superior Court, judicial district of New London, Docket No. CV 99 0549266 (July 13, 2000, Martin, J.), aff'd, 67 Conn.App. 93, 787 A.2d 32 (2001).  “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.”  (Internal quotation marks omitted.)  Mortgage Electronic Registration Systems, Inc. v. Goduto, 110 Conn.App. 367, 369 n.2, 955 A.2d 544, cert. denied, 289 Conn. 956, 961 A.2d 420 (2008).

In the present case, the defendants claim three special defenses as to the first count.   First, the defendants allege that the plaintiff lacks standing to bring the action because it is not the holder of the note and mortgage.   Second, the defendants claim that the plaintiff has unclean hands with regard to the enforcement of the mortgage, specifically, that the plaintiff did not provide proper notice of default.   Finally, the defendants claim that the plaintiff fails to state a claim for foreclosure because it has failed to name the encumbrances that are prior in right to the plaintiff's interest.

“As the party moving for summary judgment, the [movant] is required to support its motion with supporting documentation, including affidavits.”  Heyman Associates No. 1 v. Ins. Co. of Pennsylvania, supra, 231 Conn. 796.   Likewise, “[t]he existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence.”  (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).

The plaintiff submits copies of both the note and mortgage, signed by the defendants, as well as the affidavit evidence that it is the holder of the note and the mortgage.   The affidavit also states that the plaintiff provided written notice to Abigail regarding the default in accordance with the terms of the note and mortgage.   With respect to the third special defense, there is no evidence on the record that there exist any encumbrances that are prior in right to the plaintiff's interest.   The defendants have not submitted any evidence to support their special defenses or to create a genuine issue of material fact.   Accordingly, the defendants' special defenses do not preclude the court from granting the motion for summary judgment.

CONCLUSION

Based on the foregoing, the motion for summary judgment is granted as to liability on count one of the complaint.

Martin, J.

FOOTNOTES

FN1. Abigail, Hemraj Khona and Hemlatta Khona are three of six named defendants in this action.   One of the other three defendants was defaulted for failure to appear and another was defaulted for failure to plead.   The third remaining defendant has not responded to the plaintiff's complaint, nor has it filed a response to the pending motion for summary judgment.   Only Abigail, Hemraj Khona and Hemlatta Khona have filed an answer, special defenses and a cross-claim in this case.   Accordingly, they will be referred to collectively as “the defendants” hereinafter..  FN1. Abigail, Hemraj Khona and Hemlatta Khona are three of six named defendants in this action.   One of the other three defendants was defaulted for failure to appear and another was defaulted for failure to plead.   The third remaining defendant has not responded to the plaintiff's complaint, nor has it filed a response to the pending motion for summary judgment.   Only Abigail, Hemraj Khona and Hemlatta Khona have filed an answer, special defenses and a cross-claim in this case.   Accordingly, they will be referred to collectively as “the defendants” hereinafter.

Martin, Robert A., J.