Helen Powell v. LLC (2012)

MEMORANDUM OF DECISION REGARDING DEFENDANT'S AUGUST 4, 2011 MOTION FOR SUMMARY JUDGMENT (# 133)

The defendant, Aurora Loan Services, LLC (hereinafter “Aurora”), moved the Court to grant summary judgment as to Count 1 only of the plaintiff's December 2007 Amended Complaint.   The First Count of the Amended Complaint is the only count sounding against Aurora and has been determined to be an action to quiet title.¹

Aurora moves for summary judgment asserting that there is no genuine issue of material fact but that Aurora is entitled to judgment as a matter of law and fact with respect to plaintiff's First Count of the Amended Complaint which asserts an action to quiet title pursuant to Connecticut General Statutes § 47–31.²

The plaintiff objects to the Motion for Summary Judgment and filed one supporting Affidavit from the plaintiff dated October 18, 2011.   So much of paragraph two of Ms. Powell's affidavit as conflicted with unanswered Requests for Admissions directed to Ms. Powell by the instant defendant, see the court order # 154.10, was stricken.   Ms. Powell admitted executing a warranty deed in favor of Shawn and Tanya Blank thereby conveying all Powell's rights, title and interest in said property to the Blanks.   Ms. Powell asserts in that Affidavit that on December 28, 2005 she signed a Warranty Deed conveying the property, known as 46 Bristol Street, New Haven, Connecticut to Shawn and Tanya Blank for consideration in the amount of $235,000, Paragraph 2 of Affidavit.   She asserts the deed was not attested by two witnesses, Paragraph 3 of said Affidavit.   Examination of the deed shows the same witnessed by just one witness.   She asserts that though she was “owed sale proceeds in the amount of $63,722.71,” she never received those proceeds following the closing, Paragraphs 4 and 5 of Affidavit.

I. RELEVANT FACTS:

1. The plaintiff acquired 46 Bristol Street, New Haven, Connecticut (hereinafter “the property”), on November 30, 1999 for $55,000 via Warranty Deed from Elm Haven Homeownership Limited Partnership, Exhibit C in Aurora's Motion for Summary Judgment.

2. Thereafter, in 2003, Powell borrowed $107,000 from Long Beach Mortgage Company, Exhibit D in Aurora's Motion for Summary Judgment, giving a Mortgage Deed.

3. In 2004, Powell borrowed $135,200 from Argent Mortgage Company, LLC, paid off the Long Beach loan and gave a first mortgage to Argent, Exhibit C to Aurora's Motion for Summary Judgment.

4. The Argent loan became delinquent in 2005 and foreclosure proceedings were commenced in New Haven Superior Court.   On June 6, 2005, a judgment of strict foreclosure entered with a finding that the debt was $141,086.74 and the value of the property $135,000 with a law date set for July 18, 2005, Exhibit G to Aurora's Motion for Summary Judgment.

5. On July 18, 2005, Powell filed a Chapter 13 bankruptcy petition staying the foreclosure proceedings in the state court, Exhibit G. In said petition, Powell valued the property at $150,000 and identified the first mortgage as having a balance of $142,000.

6. On October 7, 2005, Argent's assignee, Wells Fargo Bank, N.A., sought relief from the bankruptcy stay and on November 4, 2005, the bankruptcy court granted said relief, See Exhibit H.

7. In December 2005, Powell sold the property to Shawn and Tanya R. Blank, (hereinafter “the Blanks”), See Amended Complaint, Second Count, Paragraphs 3 through 5, 7.

8. In order to finance the purchase, the Blanks obtained two loans, from First and Second Mortgage Company of N.J., Inc., which secured the first loan, in the amount of $164,500, by a first mortgage on the property, and a second loan, in the amount of $58,750, by a second mortgage on the property (the Blank mortgages).   Said mortgages were recorded in the New Haven land records.   A portion of the funds secured by the Blank mortgages were used to pay off Powell's debt with Argent and release the Argent mortgage and consequently a Satisfaction of Judgment was filed in the Argent foreclosure versus Powell case on January 18, 2006, Exhibit K. By Grant Deed and Warranty Deed, both dated December 28, 2005, Powell intended to convey all her rights, title and legal and equitable interest in the property to the Blanks, Exhibits L and M, and Exhibit B, Admissions # 9 and 10 by Powell.

9. On March 2007, after receiving Assignment of the first Blank mortgage, Aurora commenced foreclosure proceedings against the Blanks which culminated in a judgment of strict foreclosure and a vesting of title in Aurora on July 5, 2007, See Aurora Loan Services, LLC v. Tanya R. Blank et al., NNH–CV–07–6000802.

10. Powell instituted an action to quiet title to the subject property naming, inter alia, Aurora.   Now Aurora has moved for summary judgment pursuant to Practice Book § 17–44.³

11. An action to quiet title is a statutory action pursuant to C.G.S. § 47–31.   As noted above, it is separate and distinct from an action to set aside a deed, an equitable action.

12. In a quiet title action, the court should first determine in which party record title lies, Har v. Boreiko, 118 Conn.App. 787, 794 (2010).  “The initial question is whether record title is in one party or the other and, if so, the question becomes whether the record owner was divested of title by clear and positive proof of the adverse position of the other.”   The relief to which a party is entitled is not the setting aside of a deed but, a determination of which party has record title based on the chain of title when the cause of action was filed, Mitchell v. Citicorp.   Mortgage, Inc., 1993 Conn.Super LEXIS 2355 [10 Conn. L. Rptr. 50].  “The essential elements of this action, as recited in § 47–31 of the General Statutes, are that plaintiffs claim title to the property and that the action is brought against such persons claiming an interest in the property that is adverse to that of the plaintiffs.  Gager v. Carlson, 146 Conn. 288, 289, 150 A.2d 302 (1959);  Gaul v. Baker, 105 Conn. 80, 84 (1926);  134 A. 250 (1926).  Foote v. Brown, 78 Conn. 369, 377, 62 A. 667 (1905).”   Loch v. Al–Mor Corp., 42 Conn.Sup. 279 (1991).

13. Powell conveyed her interest in the property to the Blanks via the 2005 Warranty Deed, Exhibit M, See Exhibit B, Admissions of Powell 9 and 10, Amended Complaint, Second Count, Paragraphs 3 through 5, 7. The grantor in a Warranty Deed covenants that her title is good, and that she will warrant and defend it against all lawful claims and demands existing at the time of the grant.   Reed v. Stephens, 96 Conn. 659, 662 (1919).   The warranty covenants contained in the 2005 Warranty Deed from Powell to Blanks, See Exhibit M, are defined by C.G.S § 47–36e,⁴ and in so assigning, Powell affirmed that she had “good right, full power and lawful authority to sell” the property to the Blanks.

14. Powell now claims that the Warranty Deed is invalid as the same was not properly witnessed, in that there was only one attestation by one witness to her signature whereas C.G.S. § 47–5(a)(4) requires the attestation of two witnesses by their own hands.   However, this Court finds the cases of Treglia v. Zanesky, 67 Conn.App. 447, 454 (2001), cert. dnd, 259 Conn. 926 (2002), Peters C.J. writing for a unanimous Appellate Court, holding that a conveyance not in compliance with C.G.S. § 47–5 was “voidable not void,” ⁵ and with Providence Bank v. Robert Francis, CV–00–0801554, Satter, J.T.R. [29 Conn. L. Rptr.], are applicable.   In Providence Bank, the Court noted “While a defect in a mortgage, such as a failure to state with a reasonable certainty the nature and the amount of the debt may be asserted to attack the validity of the mortgage as against subsequent encumbrances, it cannot be used to defeat a foreclosure action as between the original mortgagee and mortgagor.”   The Court went on to note “A mortgage deed not properly witnessed and acknowledged is nevertheless valid as between the parties to the instrument.”   Further as noted in Broudeau v. Wozniak, CV 89 0100325, Stamford–Norwalk Superior Court, 1990, “(H)owever, the quitclaim deed and the mortgage, although admittedly not properly executed or recorded, nonetheless are valid as between the parties to this action.   Am.Jur., Records 157 (“Since recording is required for the protection of third persons, the recording statutes do not change the rule that an unrecorded deed, or mortgage, is valid as between the parties thereto”).   See also General Statutes 47–17 which provides that “An unacknowledged deed, and any instrument intended as a conveyance of land, but which by reason of a formal defect operates only as a conveyance of an equitable interest in such land ․ may be recorded.”   Consequently, the 2005 Warranty Deed from Powell to Blanks was valid as between those parties and the recording of the same on the public land records gave notice to the world as to the conveyance of Powell's equitable interests in said property to the Blanks.

15. Further, the Court agrees with Aurora's analysis that the Amended Complaint does not allege that the 2005 Warranty Deed is invalid and voidable.   If the operation of Connecticut General Statutes § 47–36aa(a)(2) does not cure the claimed defect in execution, the 2005 Warranty Deed from Powell to the Blanks is valid and did convey her right, title and interest because the plaintiff has ratified the transfer and never offered to restore Aurora to its original position by returning the $157,697.67 paid on her behalf to pay off her mortgage that was in foreclosure in the case of Argent Mortgage Company v. Helen Powell, see above.   When seeking rescission, as Powell claims to be seeking in Count One when she asserts the 2005 Warranty Deed she executed in favor of the Blanks is invalid, she must “offer, as nearly as possible, to place the other party in the same situation that existed prior to the execution of the contract.”  Burt's Spirit Shop, Inc. v. Ridgway, 215 Conn. 355, 360 (1990).   Powell neither offers any evidence that she has returned Aurora to its original position nor tendered or otherwise offered to do so.

16. The heart of Powell's Objection to the Motion for Summary Judgment seems to be that Powell hired Alliance Title to represent her interests in the December 2005 sale of “the property” to the Blanks, Count 2, paragraph 3. She claims that Alliance Title, her agent in that sale, did not deliver to her the $63,722.71 of the sale proceeds that she believed she was entitled to receive following conveyance, Count 2 paragraphs 5 & 6. She does not assert that the Blanks failed to pay that amount to Powell's designated agent, Alliance Title, only that Alliance Title failed to transfer those funds to Ms. Powell.   Therefore, if Ms. Powell has a complaint with the amount of consideration she received in the transaction, her complaint lies with her own agent, Alliance Title, and not with the Blanks and not with the mortgagee of the Blanks or Aurora which is the assignee of the Blanks' mortgagee.

17. Powell conveyed all her right, title and interest, via Warranty Deed, to the Blanks in December of 2005.   The Blanks, using money borrowed from Aurora's predecessor in interest, paid the full agreed upon purchase to Powell's agent, Alliance Title.   Ms. Powell executed the Warranty Deed in favor of the Blanks.   She now claims that her own agent, Alliance Title, failed to deliver the net proceeds she expected to receive from the aforementioned transaction after having paid off the mortgage with Argent that was by then foreclosed.   Even if proved true, Alliance Title's misconduct would not invalidate the conveyance of Powell's interest in the subject real estate to the Blanks.

18. Aurora's legal, equitable and record title has been conclusively determined by securing the above-mentioned judgment against the Blanks in the aforementioned foreclosure action, See Aurora Loan Services, LLC v. Tanya R. Blank et al., NNH–CV–07–6000802.   Judgment entered on May 7, 2007 and title vested in Aurora on July 5, 2007.

THE STANDARDS FOR SUMMARY JUDGMENT

In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.  Appleton v. Board of Education, 254 Conn. 205, 209, 757 A.2d 1059 (2000).   The party seeking summary judgment has the burden of showing the absence of any genuine issue of material fact, such that the party is entitled, under principles of substantive law, to judgment as a matter of law.  Id.

In ruling on a motion for summary judgment, the court's function is not to decide the issues of material fact, but rather to determine whether any such issues exist.  Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).   Summary judgment is appropriate only if a fair and reasonable person could conclude only one way, based on the substantive law and the undisputed material facts.  Miller v. United Technologies Corp., 233 Conn. 732, 751, 660 A.2d 810 (1995).

RATIONALE:

There is no genuine issue of material fact as to Powell's execution of a warranty deed in favor of the Blanks.   The question of whether the attestation by only one witness on said deed rendered the deed void or voidable is a question of law and Treglia v. Zanesky, supra, decided that such errors or improprieties rendered the conveyance voidable.   However, as noted above, Powell does not contest that she has taken no action to return the movant, or the movant's predecessor in interest, to the status quo ante existent at the time of the execution of the warranty deed or otherwise attempt to void the transfer.

There is no genuine issue of material of fact but that the movant's predecessor in interest has taken all rights, title and interests that the Blanks had when, following the judgment of strict foreclosure and Blanks' failure to redeem their equitable interest on the law day, their title vested in Aurora's predecessor in interest.

As Powell is found to have conveyed all her interest in the subject property to the Blanks, and the operation of the judgment of strict foreclosure vested all the Blanks' rights, title and interest in the subject property in Aurora's predecessor which then assigned its interests to Aurora, the court finds that Aurora is the owner of the record title.

As the necessary element of the cause of action to quiet title is for the plaintiff, Powell, to establish her record title vis a vis Aurora, and, Aurora has instead established that it is the record title owner, the plaintiff is unable, as a matter of law, to establish record title.   Hence, there is no genuine issue of material fact but that Powell is unable, vis a vis Aurora, to establish record title, without which, judgment must enter in favor of Aurora.

WHEREFORE, the Court finds there is no genuine issue of material fact, but that Aurora is entitled to summary judgment to be entered on its behalf as to Count One only.   The August 4, 2011 Motion for Summary Judgment is granted.   The October 19, 2011 Objection to Motion for Summary Judgment (# 141) is overruled.

The Court takes no action on the remaining counts, Two through Five, inclusive, of the Complaint.

BY THE COURT

ZEMETIS, J.

FOOTNOTES

FN1. See the June 3, 2011 Order of Hadden, JTR, Docket No:  123.10, regarding Plaintiff's May 26, 2011 Objection to Defendant's April 19, 2011 Motion to Strike..  FN1. See the June 3, 2011 Order of Hadden, JTR, Docket No:  123.10, regarding Plaintiff's May 26, 2011 Objection to Defendant's April 19, 2011 Motion to Strike.

FN2. C.G.S. § 47–31(a) An action may be brought by any person claiming title to, or any interest in, real or personal property, or both, against any person who may claim to own the property, or any part of it, or to have any estate in it, either in fee, for years, for life or in reversion or remainder, or to have any interest in the property, or any lien or encumbrance on it, adverse to the plaintiff, or against any person in whom the land records disclose any interest, lien, claim or title conflicting with the plaintiff's claim, title or interest, for the purpose of determining such adverse estate, interest or claim, and to clear up all doubts and disputes and to quiet and settle the title to the property.   Such action may be brought whether or not the plaintiff is entitled to the immediate or exclusive possession of the property.(b) The complaint in such action shall describe the property in question and state the plaintiff's claim, interest or title and the manner in which the plaintiff acquired the claim, interest or title and shall name the person or persons who may claim the adverse estate or interest.   In any such action the plaintiff may join as defendants any unknown person or persons who claim or may claim any rights, title, estate or interest in or lien or encumbrance on the property described in the complaint, adverse to that of the plaintiff, whether the claim or possible claim be vested or contingent.   If in the complaint, the plaintiff alleges that there are or that there may be persons who have or may have some right, title, estate or interest in or lien or encumbrance on the real or personal property but the persons cannot be located or are unknown to the plaintiff, or both, and describes the actual or possible estate or interest of such person or persons, and how derived, so far as may be known to him from a reasonable search of the available land records or otherwise, he may join as defendants all unknown persons who may have made any such claim by stating in the summons, after setting forth the names of known claimants, the words, “and all unknown persons, claiming or who may claim any rights, title, interest or estate in or lien or encumbrance upon the real property described in this complaint, adverse to the plaintiff, whether such claim or possible claim be vested or contingent,” and it shall not be necessary to set forth therein any further description of the unknown person or persons.   If, there are no known claimants, or possible claimants, to the property described in the complaint, the action shall be deemed to be maintained against all unknown persons claiming or who may claim any rights, title, estate, or interest, or lien or encumbrance upon the real or personal property described in the complaint, adverse to that of the plaintiff, whether the claim be vested or contingent, and the action may be prosecuted to judgment in the same manner and with like effect as though there had been known claimants or possible claimants designated as party defendants.(c) If the plaintiff or his attorney annexes to the complaint in any such action an affidavit setting forth such facts and in addition sets forth the efforts which were made to ascertain the names and addresses as well as the interest or estates of the unknown persons, the court to which the action is brought or a judge thereof may make such order relative to the notice which shall be given in such cause as the court or judge deems reasonable.   That notice having been given according to the order and duly proven shall be sufficient to confer jurisdiction of all such unknown persons and the court may proceed to a hearing of the cause at any time that it deems proper.   The court shall not be required to appoint any guardian or other person to represent such unknown persons under any legal disabilities and all such persons shall be concluded by any decree or judgment in respect to the real or personal property involved in the action.(d) Each defendant shall, in his answer, state whether or not he claims any estate or interest in, or encumbrance on, the property, or any part of it, and, if so, the nature and extent of the estate, interest or encumbrance which he claims, and he shall set out the manner in which the estate, interest or encumbrance is claimed to be derived.(e) No judgment for costs shall be rendered in such action against any defendant, who, by his answer, disclaims all estate or interest in or encumbrance on such property, but costs shall be taxed in his favor at the discretion of the court;  and the court shall, in any such case, without further proof, render judgment that such defendant has no estate, interest in or encumbrance on such property or any part of it.(f) The court shall hear the several claims and determine the rights of the parties, whether derived from deeds, wills or other instruments or sources of title, and may determine the construction of the same, and render judgment determining the questions and disputes and quieting and settling the title to the property..  FN2. C.G.S. § 47–31(a) An action may be brought by any person claiming title to, or any interest in, real or personal property, or both, against any person who may claim to own the property, or any part of it, or to have any estate in it, either in fee, for years, for life or in reversion or remainder, or to have any interest in the property, or any lien or encumbrance on it, adverse to the plaintiff, or against any person in whom the land records disclose any interest, lien, claim or title conflicting with the plaintiff's claim, title or interest, for the purpose of determining such adverse estate, interest or claim, and to clear up all doubts and disputes and to quiet and settle the title to the property.   Such action may be brought whether or not the plaintiff is entitled to the immediate or exclusive possession of the property.(b) The complaint in such action shall describe the property in question and state the plaintiff's claim, interest or title and the manner in which the plaintiff acquired the claim, interest or title and shall name the person or persons who may claim the adverse estate or interest.   In any such action the plaintiff may join as defendants any unknown person or persons who claim or may claim any rights, title, estate or interest in or lien or encumbrance on the property described in the complaint, adverse to that of the plaintiff, whether the claim or possible claim be vested or contingent.   If in the complaint, the plaintiff alleges that there are or that there may be persons who have or may have some right, title, estate or interest in or lien or encumbrance on the real or personal property but the persons cannot be located or are unknown to the plaintiff, or both, and describes the actual or possible estate or interest of such person or persons, and how derived, so far as may be known to him from a reasonable search of the available land records or otherwise, he may join as defendants all unknown persons who may have made any such claim by stating in the summons, after setting forth the names of known claimants, the words, “and all unknown persons, claiming or who may claim any rights, title, interest or estate in or lien or encumbrance upon the real property described in this complaint, adverse to the plaintiff, whether such claim or possible claim be vested or contingent,” and it shall not be necessary to set forth therein any further description of the unknown person or persons.   If, there are no known claimants, or possible claimants, to the property described in the complaint, the action shall be deemed to be maintained against all unknown persons claiming or who may claim any rights, title, estate, or interest, or lien or encumbrance upon the real or personal property described in the complaint, adverse to that of the plaintiff, whether the claim be vested or contingent, and the action may be prosecuted to judgment in the same manner and with like effect as though there had been known claimants or possible claimants designated as party defendants.(c) If the plaintiff or his attorney annexes to the complaint in any such action an affidavit setting forth such facts and in addition sets forth the efforts which were made to ascertain the names and addresses as well as the interest or estates of the unknown persons, the court to which the action is brought or a judge thereof may make such order relative to the notice which shall be given in such cause as the court or judge deems reasonable.   That notice having been given according to the order and duly proven shall be sufficient to confer jurisdiction of all such unknown persons and the court may proceed to a hearing of the cause at any time that it deems proper.   The court shall not be required to appoint any guardian or other person to represent such unknown persons under any legal disabilities and all such persons shall be concluded by any decree or judgment in respect to the real or personal property involved in the action.(d) Each defendant shall, in his answer, state whether or not he claims any estate or interest in, or encumbrance on, the property, or any part of it, and, if so, the nature and extent of the estate, interest or encumbrance which he claims, and he shall set out the manner in which the estate, interest or encumbrance is claimed to be derived.(e) No judgment for costs shall be rendered in such action against any defendant, who, by his answer, disclaims all estate or interest in or encumbrance on such property, but costs shall be taxed in his favor at the discretion of the court;  and the court shall, in any such case, without further proof, render judgment that such defendant has no estate, interest in or encumbrance on such property or any part of it.(f) The court shall hear the several claims and determine the rights of the parties, whether derived from deeds, wills or other instruments or sources of title, and may determine the construction of the same, and render judgment determining the questions and disputes and quieting and settling the title to the property.

FN3. Et seq.  “A motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried, Sabo v. Kazlauska, 199 Conn. Supra, LEXIS 314.  Wilson v. New Haven, 213 Conn. 277 (1989).   The motion for summary judgment should be granted if the pleadings, affidavits and other proof show that there is no genuine issue of any material fact and the moving party is entitled to judgment as a matter of law.”.  FN3. Et seq.  “A motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried, Sabo v. Kazlauska, 199 Conn. Supra, LEXIS 314.  Wilson v. New Haven, 213 Conn. 277 (1989).   The motion for summary judgment should be granted if the pleadings, affidavits and other proof show that there is no genuine issue of any material fact and the moving party is entitled to judgment as a matter of law.”

FN4. C.G.S. § 47–36e:  In any conveyance of real property the words “with warranty covenants” have the full force, meaning and effect of the following words:  “The grantor covenants with the grantee that he is lawfully seized in fee simple of the granted premises;  that the same are free from all encumbrances except as therein set forth, that he has good right, full power and lawful authority to sell and convey the same to the grantee and that the grantor shall, and his heirs, executors and administrators shall, warrant and defend the same to the grantee and his heirs and assigns forever against the claims and demands of all persons except as therein set forth.”.  FN4. C.G.S. § 47–36e:  In any conveyance of real property the words “with warranty covenants” have the full force, meaning and effect of the following words:  “The grantor covenants with the grantee that he is lawfully seized in fee simple of the granted premises;  that the same are free from all encumbrances except as therein set forth, that he has good right, full power and lawful authority to sell and convey the same to the grantee and that the grantor shall, and his heirs, executors and administrators shall, warrant and defend the same to the grantee and his heirs and assigns forever against the claims and demands of all persons except as therein set forth.”

FN5. “Connecticut cases have held that a conveyance of property rights is not automatically nullified by lack of adherence to certain formalities.   While earlier common-law required strict observance of formalities associated with the conveyance of property rights, “[s]ubsequent decisions ․ have sufficiently modified the common-law rule so as to put into question whether a different result ․ is required ․ Under the modified rule, a deed manifesting one cotenant's attempted transfer of an interest is voidable, not void.   Consequently, such a deed is susceptible of ratification.   The deed can also operate as an estoppel against the grantor.”  (Emphasis added.)  Ianotti v. Ciccio, 219 Conn. 36, 44, 591 A.2d 797 (1991);  see also Pastine v. Altman, 93 Conn. 707, 713, 107 A.2d 803 (1919);  Hartford & Salisbury Ore Co. v. Miller, 41 Conn. 112 (1874)..  FN5. “Connecticut cases have held that a conveyance of property rights is not automatically nullified by lack of adherence to certain formalities.   While earlier common-law required strict observance of formalities associated with the conveyance of property rights, “[s]ubsequent decisions ․ have sufficiently modified the common-law rule so as to put into question whether a different result ․ is required ․ Under the modified rule, a deed manifesting one cotenant's attempted transfer of an interest is voidable, not void.   Consequently, such a deed is susceptible of ratification.   The deed can also operate as an estoppel against the grantor.”  (Emphasis added.)  Ianotti v. Ciccio, 219 Conn. 36, 44, 591 A.2d 797 (1991);  see also Pastine v. Altman, 93 Conn. 707, 713, 107 A.2d 803 (1919);  Hartford & Salisbury Ore Co. v. Miller, 41 Conn. 112 (1874).

Zemetis, Terence A., J.