LLC v. George C. Rebelo et al. (2011)

MEMORANDUM OF DECISION ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

In this mortgage foreclosure action the plaintiff has moved for summary judgment as to three special defenses pled by the defendants.

In its revised complaint the plaintiff alleges that on April 14, 1994 the defendant George Rebelo executed a promissory note in the amount of $20,000.00, payable to the plaintiff's predecessor in title and secured by a mortgage on certain real property in Newington.   Pursuant to the note Mr. Rebelo was to make monthly payments of principal and interest.   Beginning with the payment due on February 15, 1995, the complaint alleges, he has failed to make those payments.   After taking an assignment of the mortgage on April 28, 2008, the plaintiff elected to exercise its option to declare the entire balance due and payable because of Mr. Rebelo's alleged non-payment and brought this foreclosure action.

Mr. Rebelo has asserted three special defenses.   All are based on the admitted fact that the plaintiff's predecessor in title, a corporation, had been dissolved by the secretary of state's office in 1990, before taking the note and mortgage from Mr. Rebelo in 1994 and long before assigning the mortgage to the plaintiff in 2008.   Therefore, Mr. Rebelo claims, the making and later assignment of the note and mortgage were invalid because they were not consistent with a dissolved corporation's duty to wind up its affairs as expeditiously as possible.

Pursuant to Practice Book § 17-49, “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.”  (Emphasis added.)  (Internal quotation marks omitted.)  Bonington v. Westport, 297 Conn. 297, 305, 999 A.2d 700 (2010).¹  “[S]ince litigants ordinarily have a constitutional right to have issues of fact decided by a jury ․ the moving party for summary judgment is held to a strict standard ․ of demonstrating [its] entitlement to summary judgment.”  (Citation omitted;  internal quotation marks omitted.)   Kakadelis v. DeFabritis, 191 Conn. 276, 282, 464 A.2d 57 (1983).

“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 [it] to a judgment as a matter of law ․ To satisfy [its] 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 ․ When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ․” (Internal quotation marks omitted.)  Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).

To obtain summary judgment in a foreclosure matter, the plaintiff must demonstrate the absence of a genuine issue of material fact as to its prima facie case.   See Bank of New York v. Conway, 50 Conn.Sup. 189, 193-95, 916 A.2d 130 (2006).  “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 ․ Furthermore, the foreclosing party must demonstrate that all conditions precedent to foreclosure, as mandated by the note and mortgage, have been satisfied.”  (Citation omitted;  internal quotation marks omitted.)  Id., 193-94.   Only after this initial burden is met does the court then determine whether any special defenses alleged are legally sufficient to defeat a claim for foreclosure.  Id., 195;  see also LaSalle National Bank v. Shook, Superior Court, judicial district of New London, Docket No. 549266 (July 13, 2000) (“When a complaint and supporting affidavits establish an undisputed prima facie case for a foreclosure action, a court must only determine whether the special defense is legally sufficient before granting summary judgment”), aff'd, 67 Conn.App. 93, 787 A.2d 32 (2001).

This court, considering the evidence submitted by the plaintiff, finds that it has failed to dispel any genuine issue of material fact as to whether Mr. Rebelo is in default on the note.   Importantly, “[t]he applicable rule regarding the material facts to be considered on a motion for summary judgment is that the facts at issue are those alleged in the pleadings.”  (Internal quotation marks omitted.)  DeCorso v. Calderaro, 118 Conn.App. 617, 622, 985 A.2d 349 (2009), cert. denied, 295 Conn. 919, 991 A.2d 564 (2010).   The plaintiff alleges that “[s]aid note and mortgage are now in default by virtue of nonpayment of the installments of principal and interest due on February 15, 1995 and each and every month thereafter, and the Plaintiff has exercised its option to declare the entire balance of said note due and payable.”  (Revised Complaint, ¶ 7.)   Rebelo denies this allegation in his amended answer.

None of the evidence submitted by the plaintiff in support of its motion establishes that Mr. Rebelo has failed to make payments on the note as alleged.   Nor does the plaintiff cite to anything elsewhere in the record supporting its assertion of non-payment.

The court finds that the plaintiff has failed to establish the absence of a genuine issue as to the material fact of non-payment.   In short, it has not demonstrated that it is entitled to judgment, a necessary precondition to granting its motion.

Accordingly, the motion for summary judgment is DENIED.

BY THE COURT

Joseph M. Shortall,Judge Trial Referee

FOOTNOTES

FN1. Some courts have taken the position that it is improper to move for summary judgment with regard to special defenses.  “Although there is no Connecticut appellate authority, the decisions of the Connecticut Superior Court are almost in unanimous agreement that a motion for summary judgment as to a special defense is improper ․ because Practice Book § 17-44 does not provide for summary judgment on special defenses ․ Ameriquest v. Sievers, Superior Court, judicial district of New London, Docket No. CV 4002637 (Nov. 13, 2006)..  FN1. Some courts have taken the position that it is improper to move for summary judgment with regard to special defenses.  “Although there is no Connecticut appellate authority, the decisions of the Connecticut Superior Court are almost in unanimous agreement that a motion for summary judgment as to a special defense is improper ․ because Practice Book § 17-44 does not provide for summary judgment on special defenses ․ Ameriquest v. Sievers, Superior Court, judicial district of New London, Docket No. CV 4002637 (Nov. 13, 2006).

Shortall, Joseph M., J.T.R.