The Bank of New York v. Candace Corbridge (2010)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (NO. 105)

FACTS

In this mortgage foreclosure action, the plaintiff, The Bank of New York Mellon f/k/a The Bank of New York as Trustee for the Certificateholders of CWABS 2005-ABI, filed a motion for summary judgment and memorandum in support on June 25, 2010.   The defendant, Candace V. Corbridge, did not file an objection to the motion.

The plaintiff alleges the following facts in its complaint.   On February 22, 2005, the defendant owed Optima Mortgage Corporation (Optima) $209,950.00, as evidenced by a promissory note made payable to Optima for that sum.   To secure the note, the defendant mortgaged the property known as 555 Old Laurel Hill Road, Norwich, Connecticut to Mortgage Electronic Registration Systems, Inc. (Mortgage Electronic), solely as nominee for Optima.   The mortgage deed was recorded on the Norwich Land Records.

Subsequently, the mortgage was assigned to the plaintiff by an assignment of mortgage to be recorded on the Norwich Land Records.   The plaintiff is the holder of the note and mortgage and the unpaid balance of the note is $203,796.72, plus interest from March 1, 2008, late charges and collection costs.   The note and mortgage are now in default by virtue of nonpayment of the installments of principle and interest due on April 1, 2008, and each and every month thereafter.   The plaintiff has exercised its option to declare the entire balance of the note due and payable.

The defendant filed an answer on March 12, 2010.   The defendant claims in her answer that monthly installments of principal and interest were not due and payable to Optima because Countrywide Mortgage immediately became the “servicer” of the note.   The defendant also claims that Mortgage Electronic was not a signatory to the contract, that Optima assigned the deed to Mortgage Electronic as a straw company and that the plaintiff is not the owner of the note and mortgage.   The defendant alleges that the plaintiff does not have standing to bring this action because the plaintiff does not own the note.

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).

“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 argues that there is no genuine issue of material fact regarding the allegations contained within the complaint and that it is entitled to judgment as a matter of law.   The plaintiff asserts that the evidence that it has submitted establishes that it is the holder of the note and that the defendant is in default.   Additionally, the plaintiff argues that it has standing to bring this action as the holder of the original promissory note and as the mortgagee of record of the subject mortgage.

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 the affidavit of John Cook, who states that he reviewed a title search of the Norwich Land Records for the property at issue in this matter.   The affidavit states that the defendant mortgaged the property to Mortgage Electronic, solely as nominee for Optima, and the mortgage was subsequently assigned to the plaintiff.   The affidavit states that the mortgage and assignment were both recorded in the Norwich Land Records.   The affidavit further states that the defendant is the owner of record of the property.   The plaintiff has attached a copy of the deed to the motion for summary judgment as well as a copy of the mortgage, the note and the assignment.   Both the mortgage and the note are signed by the defendant.   In addition, the plaintiff has submitted the affidavit of Laura M. Pirritano, an assistant vice president of BAC Home Loans Servicing, LP, the servicer for the plaintiff.   Pirritano's affidavit states that the plaintiff is the holder of the note and mortgage and that the unpaid balance of the note is $203,796.72 plus interest from March 1, 2008, late charges and collection costs.   The affidavit states that the note and mortgage are in default by virtue of nonpayment of the installments of principle and interest due on April 1, 2008, and each and every month thereafter.   The affidavit states that, as a result of the nonpayment, the plaintiff has exercised its option to declare the entire balance of the note due and payable.

The plaintiff has satisfied its burden of showing that it is the owner of the note and mortgage and that the defendant has defaulted on the note.   The defendant has 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).

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 defendant claims that the plaintiff is not the owner of the note and that the plaintiff does not have standing to bring this action.¹  “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).

With respect to the issue of ownership of the note, the court has already discussed the plaintiff's submission of the note, the mortgage and the assignment of the mortgage as evidence in support of its motion.   Further, the affidavits of Cook and Pirritano provide the details of the assignment to the plaintiff.   The court is satisfied that the plaintiff is the holder of the note and the mortgage.

Recently, the Appellate Court discussed the issue of standing with respect to mortgage foreclosure actions in Chase Home Finance, LLC v. Fequiere, 119 Conn.App. 570, 989 A.2d 606, cert. denied, 295 Conn. 922, 991 A.2d 564 (2010).  “The plaintiff's standing to enforce the promissory note is set forth by the provisions of the Uniform Commercial Code as adopted in General Statutes § 42a-1-101 et seq.   Under these statutes, only a ‘holder’ of an instrument or someone who has the rights of a holder is entitled to enforce the instrument.  General Statutes § 42a-3-301.   The ‘holder’ is the person or entity in possession of the instrument if the instrument is payable to bearer.  General Statutes § 42a-1-201(b)(21)(A).   When an instrument is endorsed in blank, it ‘becomes payable to bearer and may be negotiated by transfer of possession alone ․’ General Statutes § 42a-3-205(b) ․

“[T]he subject promissory note was endorsed in blank by [the original mortgagor] and, therefore, is payable to bearer.   The plaintiff, by way of its possession of an instrument payable to bearer, is a valid holder of the instrument and, therefore, is entitled to enforce it ․ Furthermore, [t]he possession by the bearer of a note indorsed in blank imports prima facie that he acquired the note in good faith for value and in the course of business, before maturity and without notice of any circumstances impeaching its validity.   The production of the note establishes his case prima facie against the makers and he may rest there ․ It [is] for the [makers] to set up and prove the facts which limit or change the [bearer's] rights ․ The defendant has failed to present even a scintilla of evidence demonstrating that the plaintiff was not in possession of the promissory note or contradicting its status as a bona fide holder of the note.”  (Citations omitted;  internal quotation marks omitted.)  Home Finance v. Fequiere, supra, 119 Conn.App. 577-78.

An analogous situation presents itself in the present case.   The affidavit of Pirritano states that the original note was specially endorsed to Countrywide Document Custody Services and subsequently endorsed to Countrywide Home Loans.   The note was then endorsed in blank.   The original of the note was delivered to the plaintiff on or before January 21, 2010.   The affidavit states that the plaintiff possesses the original of the note, endorsed in blank, and has not further endorsed, negotiated, transferred or delivered the note to any other entity.   A copy of the note is attached as an exhibit to the motion for summary judgment.   The defendant has not offered any evidence to counter the plaintiff's claims or proof.

Based on the affidavits and other proof submitted by the plaintiff, the court finds that the plaintiff is the holder of the note and mortgage and has standing to pursue this action.   Accordingly, the defendant's 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.

Martin, J.

FOOTNOTES

FN1. In the present case, the defendant's answer contains her claims with respect to standing and ownership of the note.   Although these claims are not generally proper in an answer;  see Practice Book § 10-46;  the plaintiff has addressed the claims as special defenses.  “[I]t is the established policy of the Connecticut courts to be solicitous of pro se litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the pro se party.”  (Internal quotation marks omitted.)  New Haven v. Bonner, 272 Conn. 489, 497-98, 863 A.2d 680 (2005).   The court will consider the defendant's claims regarding standing and ownership of the note as special defenses..  FN1. In the present case, the defendant's answer contains her claims with respect to standing and ownership of the note.   Although these claims are not generally proper in an answer;  see Practice Book § 10-46;  the plaintiff has addressed the claims as special defenses.  “[I]t is the established policy of the Connecticut courts to be solicitous of pro se litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the pro se party.”  (Internal quotation marks omitted.)  New Haven v. Bonner, 272 Conn. 489, 497-98, 863 A.2d 680 (2005).   The court will consider the defendant's claims regarding standing and ownership of the note as special defenses.

Martin, Robert A., J.