2006 NC3 v. Nancy Debrizzi et al. (2011)

MEMORANDUM OF DECISION

I

BACKGROUND

This is an action to foreclose the defendant's mortgage, brought by a writ, summons and complaint dated July 29, 2010, with a return date of August 17, 2010.   The state marshal's return recites in-hand service of process on August 4, 2010, which was returned to court on August 6, 2010.   The plaintiff is Wells Fargo Bank, N.A., as Trustee for Carrington Mortgage Loan Trust, Series 2006–NC3 Asset–Backed Pass–Through Certificates.

The defendant, Nancy Debrizzi, is self-represented and filed her answer with four special defenses on October 4, 2010.¹

Three of the defendant's four special defenses are relevant to these proceedings, as follows.  (1) “Any note signed by this defendant, as alleged in Paragraphs 1 and 2 of the complaint, has been satisfied in full.”  (2) “The plaintiff is not the owner, assignee, or holder of any note or mortgage deed currently secured by the premises being foreclosed.”  (3) “The plaintiff is not the holder of the original note which is allegedly secured by the mortgage being foreclosed.”

In the context of these pleadings, the plaintiff seeks summary judgment, to which the defendant objects.   The motion for summary judgment is granted for reasons set forth in this memorandum.

II

FACTS AND DISCUSSIONA. Summary Judgment

“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.)  Sherman v. Ronco, 294 Conn. 548, 553–54, 985 A.2d 1042 (2010).  Practice Book § 17–50 authorizes the entry of partial summary judgment, as to liability, where there is a genuine issue as to damages only.²  Pursuant to this rule, the court may grant motions for partial summary judgment as to liability in foreclosure actions.   See, e.g., Bank of New York v. Mangiafico, Superior Court, judicial district of Hartford, Docket No. CV 08 5022713 (October 21, 2010, Aurigemma, J.) (granting summary judgment as to liability in foreclosure action).

“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.)  Rivera v. Double A Transportation, Inc., 248 Conn. 21, 24, 727 A.2d 204 (1999).   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 order to make out a prima facie case for liability in a foreclosure action, the plaintiff must “prove by a preponderance of the evidence that it [is] the owner of the note and mortgage and that [the defendant has] defaulted on the note.”  Webster Bank v. Flanagan, 51 Conn.App. 733, 750–51, 725 A.2d 975 (1999).

After the plaintiff shows the absence of any genuine issue of material fact in its prima facie case, the defendant has the burden of similarly demonstrating no issue of material fact regarding her special defenses.  “A party must substantiate [an] adverse claim by specifically showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue.”  Farrell v. Farrell, 182 Conn. 34, 39, 438 A.2d 415 (1980).

B. The Claims of the Parties

The plaintiff's motion for summary judgment regarding liability is now before the court, filed approximately one year ago on November 22, 2010.   Soon thereafter, on December 9, 2010, the defendant filed an objection along with an affidavit and memorandum of law in support of her objection.   Her essential assertions are that the plaintiff was not the holder, owner or assignee of the note and mortgage at the commencement of this foreclosure.   She also asserts that the note has been modified and possibly satisfied, but that the plaintiff nowhere pleads or acknowledges the modification.   In fact, missing from the plaintiff's affidavit or pleadings is the assertion of any fact relating to a modification of the note, as claimed by the defendant.

The defendant provided an affidavit in support of her objection.   In her affidavit, she claims that the mortgage was modified for a larger principal amount, a longer maturity date and a lower monthly payment, and that a copy of this modification was never provided to her by the plaintiff.   However, the defendant has provided no evidence to contradict the plaintiff's claim of default under the note, either under its original terms or pursuant to a subsequent modification.   The defendant also claims that the plaintiff provided no evidence that it was the assignee of the original note, modified or otherwise, at the commencement of the action.   She additionally asserts that the plaintiff was the assignee of the mortgage deed on September 21, 2010, which occurred after this action was commenced.

On August 10, 2011, the plaintiff filed a response to the defendant's objection, along with a supplemental affidavit in support of its motion for summary judgment.   The affiant for the plaintiff is Mr. Tom Croft, a senior vice president of Carrington Mortgage Services, LLC, the servicer for the plaintiff.   In his supplemental affidavit, Mr. Croft attests to the following essential facts:  (1) the plaintiff is the owner of a mortgage note and deed in the amount of $138,600, both executed by the defendant on April 17, 2006;  (2) the plaintiff is the owner of the indebtedness evidenced by the note and secured by the mortgage, and the note came into the plaintiff's possession on April 7, 2007;  (3) the defendant defaulted under the note by failing to tender the May 1, 2009 payment and subsequent payments;  (4) the defendant was sent notice of the default and the amount necessary to cure the default on June 6, 2009;  and (5) the defendant failed to cure the default.   Croft additionally attested to the fact that the note was received by plaintiff's counsel on August 3, 2010, prior to service of this action upon the defendant on August 4, 2010, and that the mortgage deed was subsequently assigned to the plaintiff on September 27, 2010.³

On August 17, 2011, the defendant filed an additional objection to this matter proceeding on the short calendar, asserting that, absent the completion of discovery concerning the note, the motion for summary judgment was premature.   This discovery, however, was served on the plaintiff on or about July 8, 2011, nearly seven months after the defendant had filed her original objection to the plaintiff's motion for summary judgment.   The plaintiff thereafter sought and was granted additional time to respond to the discovery request.   On August 19, 2011, the plaintiff filed its notice of objection and partial response to the defendant's discovery request.   No subsequent motions concerning discovery have been filed by the defendant.

On August 19, 2011, the plaintiff filed a reply to the defendant's objection to this matter being placed on the short calendar, contesting the defendant's main arguments of:  (1) whether the note is still in existence because of a loan modification in 2008;  (2) whether the plaintiff owned the note at the commencement of the case;  and (3) whether there is any relevant, outstanding discovery on these issues.

Attached to the plaintiff's August 19, 2011 pleading is Exhibit A, which is a copy of a partially executed loan modification agreement, dated October 7, 2008 and signed by the defendant.   The language of the agreement indicates that it is an offer made by the plaintiff's servicer, Carrington Mortgage Services, LLC;  however, it is unsigned by the plaintiff.   This modification document purports to modify the following terms of the original note:  the principal balance, the monthly payment, the maturity date and the interest rate.

Regarding the defendant's first argument, the plaintiff does not acknowledge the validity of the modification in any of its pleadings or filings with the court.   Instead, the plaintiff argues that the modification document's validity or invalidity is irrelevant to the essential elements of proof necessary to establish liability in a foreclosure action.   The plaintiff specifically points to language in the modification document, which expressly states in paragraph C.3 of page 2 that “[n]othing in this Agreement will be understood or construed to be a satisfaction or release in whole or in part of your Note and Mortgage.”   In addition, the modification document provides that “[a]ll covenants, agreements, stipulations and conditions in your Note and Mortgage will remain in full force and effect, except as modified herein, and none of your obligations or liabilities under your Note and Mortgage will be diminished or released by any provisions hereof, nor will this Agreement in any way impair, diminish or affect [any] of CMS's rights under or remedies on your Note and Mortgage ․” Paragraph C. 1 of Page 2 (the second Paragraph 1).

Based upon this language, the plaintiff correctly states that the modification document clearly provides that the original note is still in existence and was not satisfied or released at that time.   The plaintiff further correctly asserts that the defendant has offered no evidence to counter its claim that she is in default or has failed to cure the default, whether under the original note or as otherwise modified as she claims.   These facts adequately address the defendant's first special defense of satisfaction, for which she has offered no contradictory evidence.

The defendant's second argument is that the plaintiff has failed to satisfactorily prove ownership of the note at the commencement of the case.   The plaintiff presented evidence in the form of the aforementioned affidavit executed by Croft in support of its motion for summary judgment.   The affidavit expressly provides that the plaintiff is the owner of the note and came into its possession on April 7, 2007, well before the commencement of this action.   The affidavit further states that plaintiff's counsel received the original note on August 3, 2010, immediately prior to the service of process on the defendant, and it is accompanied by a bailee letter indicating counsel's receipt of the original note.

The plaintiff asserts that this documentary and testimonial evidence establishes that there is no genuine issue of material fact that the plaintiff owned the note prior to the commencement of this case, and therefore, that the second and third special defenses are insufficient to prevent the court from granting its motion for summary judgment.   The problem with the plaintiff's assertion is that discovery has yet to be completed.   In addressing this issue, the plaintiff claims that the defendant does not need additional time for discovery for the following reasons.   First, the material information and documents have been provided to the defendant.   Second, the additional requests for information are irrelevant to this case, in that they have no bearing on the allegations in the complaint or on the special defenses alleged by the defendant.   In support of these claims, the plaintiff points to documentary and testimonial evidence in its memorandum of law in support of its motion for summary judgment (docket entry number 124.00) and in its supplemental affidavit in support of summary judgment (docket entry number 131.00).

The court finds that the plaintiff has adequately shown that it was the holder of the note at the time of the commencement of this action to foreclose the defendant's mortgage.⁴  Furthermore, the plaintiff has adequately shown the defendant to be in default of the note, either in its original form or as modified, which appears to be an issue in dispute between the parties.   However, the modification document signed by the defendant neither satisfies the underlying note nor waives any of its unmodified terms.   If any other payments were tendered to the plaintiff, it would be the defendant's burden to present evidence to support its defense of payment or satisfaction.   No such evidence was presented beyond general and unsubstantiated claims made by the defendant.   The court further agrees with the plaintiff's claim that the defendant has had ample time to pursue discovery, over which there are no pending motions.

III

CONCLUSION

The motion for summary judgment having been heard, it is hereby found that no genuine issue of material fact as to liability exists.   Therefore, judgment as to liability may enter for the plaintiff on the complaint.

SO ORDERED

BY THE COURT,

MARK H. TAYLOR

FOOTNOTES

FN1. A second defendant, William Renz, also filed an answer and defenses.   The plaintiff subsequently withdrew its action against Renz on December 7, 2010.   The defendant's fourth special defense relates to William Renz..  FN1. A second defendant, William Renz, also filed an answer and defenses.   The plaintiff subsequently withdrew its action against Renz on December 7, 2010.   The defendant's fourth special defense relates to William Renz.

FN2. Practice Book § 17–50 provides:  “A summary judgment, interlocutory in character, may be rendered on the issue of liability alone, although there is a genuine issue as to damages.   In such case the judicial authority shall order an immediate hearing before a judge trial referee, before the court, or before a jury, whichever may be proper, to determine the amount of the damages.   If the determination is by a jury, the usual procedure for setting aside the verdict shall be applicable.   Upon the conclusion of these proceedings, the judicial authority shall forthwith render the appropriate summary judgment.”.  FN2. Practice Book § 17–50 provides:  “A summary judgment, interlocutory in character, may be rendered on the issue of liability alone, although there is a genuine issue as to damages.   In such case the judicial authority shall order an immediate hearing before a judge trial referee, before the court, or before a jury, whichever may be proper, to determine the amount of the damages.   If the determination is by a jury, the usual procedure for setting aside the verdict shall be applicable.   Upon the conclusion of these proceedings, the judicial authority shall forthwith render the appropriate summary judgment.”

FN3. In support of this fact, the plaintiff submitted a copy of a bailee letter..  FN3. In support of this fact, the plaintiff submitted a copy of a bailee letter.

FN4. In her most recent objection, the defendant raises for the first time the argument that the mortgage was not assigned to the plaintiff prior to the commencement of the case.   The defendant has not pleaded this claim as a special defense in this case and it is not a valid defense to a foreclosure action, as a plaintiff does not need to be assigned the mortgage at the commencement of the case in order to bring a foreclosure action.   Pursuant to General Statutes § 49–17, the holder of a note may foreclose on a mortgage even if the holder does not have any interest in the mortgage.   See Fleet National Bank v. Nazareth, 75 Conn.App. 791, 795, 818 A.2d 69 (2003)..  FN4. In her most recent objection, the defendant raises for the first time the argument that the mortgage was not assigned to the plaintiff prior to the commencement of the case.   The defendant has not pleaded this claim as a special defense in this case and it is not a valid defense to a foreclosure action, as a plaintiff does not need to be assigned the mortgage at the commencement of the case in order to bring a foreclosure action.   Pursuant to General Statutes § 49–17, the holder of a note may foreclose on a mortgage even if the holder does not have any interest in the mortgage.   See Fleet National Bank v. Nazareth, 75 Conn.App. 791, 795, 818 A.2d 69 (2003).

Taylor, Mark H., J.