Bank of New York, as Trustee for the Benefit of the Certificate Holders et al. v. Sebastian Mangiafico et al. (2010)

MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT

The plaintiff has moved for summary judgment in this foreclosure action.   The plaintiff has presented evidence that the defendant, Sebastian Mangiafico, executed a Promissory Note dated February 17, 2007 in the original principal amount of $672,000 payable to Ascella Mortgage, LLC. To secure that Note, the defendant executed a Mortgage Deed on real property with improvements thereon known as 35 Sullivan Farm Road, East Windsor, Connecticut.   Thereafter the Mortgage was assigned to the plaintiff, Bank of New York, as Trustee for the Benefit of Certificate holders, CWALT Alternative Loan Trust 2007-14T2 Mortgage Pass-Through Certificates, Series, 2007-14T2.   The plaintiff is the holder of the Note and Mortgage.

Count Two of the Complaint seeks reformation of the Mortgage Deed which reflects the subject property address as “35 Sullivan Farm Road, Broad Brook, Connecticut.”   The defendant has not made payments due under the note for February 1, 2008 and each and every month thereafter and is in default under the terms of the Note and Mortgage.

On October 30, 2008, the defendant filed an Answer and Seven Special Defenses.   The Answer admitted the allegations of the complaint concerning ownership of the subject property and execution of the Note and Mortgage Deed. The Answer denied the allegations concerning default and notice of default.   However, the defendant has submitted an affidavit in opposition to the Motion for Summary Judgment in which he admits that “I defaulted on this loan within one year of its making.”

The Third, Fifth and Sixth Special Defenses were stricken by this Court, Satter, J., on April 7, 2009.   The First Special Defense asserts that “[u]pon information and belief, plaintiff is not the holder of the applicable note and mortgage.”   The Second Special Defense asserts that Count Two of the complaint cannot state a claim for reformation since there is no specific allegation of mutual mistake.   The Fourth Special Defense asserts that the “Plaintiff has failed to meet the applicable notice provisions of the note and Mortgage.”   The Seventh Special Defense alleges that the plaintiff or its predecessor in interest violated the Connecticut Unfair Trade Practice Act (“CUTPA”).

Discussion of the 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.  “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.)  Schilberg Integrated Metals Corp. v. Continental Casually Co., 263 Conn. 245, 251-52, 819, A.2d 773 (2003).  “A material fact ․ [is] a fact which will make a difference in the result of the case ․ Finally, the scope of our review of the trial court's decision to grant the plaintiff's motion for summary judgment is plenary.”  (Citation omitted;  internal quotation marks omitted.)   HO.R.S.E. of Connecticut, Inc. v. Washington, 258 Conn. 553, 560, 783, A.2d 993 (2001).   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).

The plaintiff has produced evidence in support of the Motion for Summary Judgment that it is the holder of the Note and Mortgage which the defendant has admitted that he signed.   Although the First Special Defense alleges that the plaintiff is not the holder of the Note and Mortgage, the defendant has produced no evidence to contradict that produced by the plaintiff.

Count Two of the complaint seeks reformation of the Mortgage Deed. The Second Special Defense asserts that the Second Count cannot state a claim for reformation because it does not specifically allege mutual mistake.   Reformation is appropriate in cases of mutual mistake.  Harlack v. Metropolitan Property & Liability Insurance Company, 221 Conn. 185, 190 (1992).   However, it is also available in equity when the instrument does not express the true intent of the parties owing to the mistake of one party.   Derby Savings Bank v. Oliwa, 49 Conn.App. 602, 604 (1998).   Thus, even if the allegations of the Second Count omit the specific words “mutual mistake,” such an allegation can be fairly implied from the pleadings.   Moreover, the defendant has admitted that he signed the Mortgage Deed and has admitted that he owned the mortgaged property situated in the Town of East Windsor, ․ known as 35 Sullivan Farm Road. In essence, the defendant has admitted that the incorrect description of the mortgaged property as being in Broad Brook should be reformed.   There is clearly no material issue of fact with respect to the Second Count.

The defendant has not presented any evidence to support his Fourth Special Defense that the plaintiff failed to give the requisite notice of default and has not made any such averment in his affidavit.   Such notice, when called for under the terms of the mortgage, is a condition precedent to foreclosure.   Citicorp Mortgage, Inc. v. Porto, 41 Conn.App. 598, 603 (1996).   However, the plaintiff has presented copies of the notice letters sent to the defendant and they comply with the notice provisions contained in Sections 15 and 22 of the Mortgage Deed.

The defendant's Objection to Summary Judgment argues that a question of fact exists as to the defendant's Seventh Special Defense, which alleges that the plaintiff or its predecessor in interest violated CUTPA in making the Mortgage.   The Objection refers to certain allegations concerning the defendant's inability to pay the mortgage.   However, no such allegations are contained in the Seventh Special Defense.   They are contained in the Sixth Special Defense, which has been stricken.

In his Affidavit in Opposition to Summary Judgment the defendant appends a copy of the Mortgage Application, which indicates that his monthly income was $19,451.   The Objection implies that this income figure was “unverified” by the plaintiff, and, therefore, incorrect.   However, the defendant makes no statement in his affidavit that that amount was incorrect.   Moreover, the Loan Application, which the defendant has presented, specifically provides “the undersigned [the defendant] specifically represents to Lender and to Lender's actual or potential agents, brokers, processors, attorneys, insurers, services, successor and assigns and agrees and acknowledges that (1) the information provided in this application is true and correct ․ (7) the Lender and its agents, brokers, its servicers, successors and assigns may continuously rely on the information contained in the application, and I am obligated to amend and/or supplement the information provided in this application if any of the material facts that I have represented herein should change prior to closing of the loan ․”

Since the defendant does not state that his income figure as represented to the plaintiff's predecessor was incorrect, the gravamen of his Seventh Special Defense seems to be that the plaintiff's conduct was somehow unfair because the total monthly mortgage obligation is 30% of the gross monthly income.   The court's calculations indicate that the mortgage payment is actually 26% of the defendant's gross monthly income.   Given that the Home Affordable Modification Program (HAMP) aims to modify a borrower's monthly mortgage payments to 31% or less of their gross monthly income, there is clearly nothing outrageous or even unfair about the ratio of the mortgage payment to the defendant's income.

Based on the foregoing there are no material issues of fact.   The defendant executed the Note and Mortgage of which the plaintiff is the holder.   The defendant has admitted that he is in default on the Note and has presented no evidence to support his remaining Special Defenses.   Summary Judgment hereby enters in favor of the plaintiff on Count One as to liability only and on Count Two.

By the court,

Aurigemma, J.

Aurigemma, Julia L., J.