FSB v. James Broadt et al. (2011)

MEMORANDUM OF DECISION

The plaintiff, Flagstar Bank, FSB, moves for summary judgment as to liability in this foreclosure action.   Summary judgment shall be granted if the pleadings and documentary proof submitted demonstrate that no genuine dispute as to material facts exists and that the movant is entitled to judgment as a matter of law.  Practice Book § 17–49.

In its complaint, the plaintiff alleges that the owners of the equity of redemption, James and Sherrie Broadt, signed a promissory note on May 18, 2007, obligating them to repay a loan of $172,550 plus interest through monthly payments, which note was secured by a mortgage on their property located at 145 Camp Meeting Road, Bolton, Connecticut;  that the terms of this note were modified on March 30, 2009;  that the plaintiff acquired the note, as modified, on February 3, 2011;  that the Broadts have failed to make any monthly payments on the note since July 2010;  and that the debt on the note was accelerated in accordance with the provisions for such acceleration in the note.

On March 23, 2011, the Broadts filed an answer which denies that the plaintiff was a party to the original loan;  that the Broadts never had any dealings with the plaintiff before the foreclosure action;  and that the mortgage was never properly assigned to the plaintiff.   This answer fails to deny the allegations of the complaint that the Broadts executed the original note, mortgage deed, and modification agreement;  that the Broadts have failed to make payments on the loan since July 2010;  and that the plaintiff properly accelerated the debt according to the tenor of the note and modification agreement.

“Every material allegation in any pleading which is not denied by the adverse party shall be deemed to be admitted ․” Practice Book § 10–19.   Consequently, the court must regard as admitted that the Broadts executed the original note and modification agreement;  that they have been in default of those obligations since July 2010;  and that the entire debt created by those documents was properly accelerated.   The court will, however, construe the answer as contesting the plaintiff's right to bring the action as the holder of the note at the time this action commenced.

Among the grounds the Broadts assert in opposition to this motion is that the plaintiff has failed to comply with Practice Book § 17–46.   That section requires that any affidavits proffered in conjunction with a summary judgment motion or the objection thereto “shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.”

The plaintiff has submitted the affidavits of Vanessa Ellison and Douglas York who attest to their knowledge of the plaintiff's business records and their examinations of such business records.   The plaintiff has also attached copies of the purported original note, mortgage deed, and modification agreement.   However, the affiants make no reference to these documents or their authenticity.   Also, the copies of these instruments are not certified copies.

Without being certified or authenticated in any way, the court cannot consider such evidence because it would be inadmissible at trial.   Therefore, the court cannot determine that there is no genuine factual dispute remaining concerning the plaintiff's status as bearer and/or holder of the note which it attempts to enforce by way of foreclosure.   The motion for summary judgment is denied.

Sferrazza, J.

Sferrazza, Samuel J., J.