LLC v. Michael K. Flash et al. (2012)

MEMORANDUM OF DECISION DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

On November 4, 2011, the plaintiff, Aurora Loan Services, LLC, filed a one-count revised complaint seeking foreclosure of a mortgage given by the defendants, Michael K. Flash and Sandra A. Bartley, to Mortgage Electronic Registration Systems, Inc. (MERS), as nominee for GN Mortgage LLC. The revised complaint alleges that on January 17, 2006, Bartley executed and delivered a note to GN Mortgage, LLC, for a loan in the principal amount of $238,500.   The defendants then secured this note by executing a mortgage on real property located at 109–111 Evergreen Avenue in Hartford, Connecticut.   The mortgage was recorded on the Hartford Land Records on January 25, 2006.   Subsequently, the note was assigned to the plaintiff;  the plaintiff is the holder of the note and mortgage.¹  The plaintiff alleges that the note is in default and has exercised its right to declare the entire balance of the note due and payable and to foreclose the mortgage.

On February 2, 2012, the defendants filed a motion for summary judgment with a memorandum of law in support of their motion to which the plaintiff filed an objection on February 10, 2012.   Oral argument on the motion was held on February 21, 2012.²

“[S]ummary 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 ․” Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 549–50, 791 A.2d 489 (2002).  “To satisfy his 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.”  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008).

“On a motion by the defendant for summary judgment the burden is on [the] defendant to negate each claim as framed by the complaint ․ It necessarily follows that it is only [o]nce [the] defendant's burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial.   Accordingly, [w]hen 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.)  Baldwin v. Curtis, 105 Conn.App. 844, 851, 939 A.2d 1249 (2008).

The defendants move for summary judgment on the ground that there are no genuine issues of fact in dispute as the plaintiff's complaint is legally insufficient and fails to state a claim upon which relief can be granted.   In particular, the defendants argue that it is undisputed that a note was not executed by the parties on the closing date, and as a result, the plaintiff has no legal right to foreclose the mortgage.³  Moreover, the defendants argue that the plaintiff was not in possession of the original contract at the commencement of the action, that there is no default of the mortgage because there is no valid note, and that the plaintiff is not a valid note holder.

In its objection, the plaintiff argues that the defendants have not established a lack of any genuine issue of material fact negating the allegations set forth in the plaintiff's complaint that would demonstrate their entitlement to summary judgment as a matter of law.   Specifically, the plaintiff argues that the instrument executed by the parties is unambiguously, by its own terms, a promissory note.   Furthermore, the plaintiff argues that as holder of this endorsed note, it is the legally proper party to foreclose any accompanying security interest incident to the note.

“As the party moving for summary judgment, the [movant] is required to support its motion with supporting documentation, including affidavits.”  Heyman Associates No. 1 v. Insurance Co. of Pennsylvania, 231 Conn. 756, 796, 653 A.2d 122 (1995).   In support of their motion for summary judgment, the defendants submitted the signed and sworn affidavit of Sandra A. Bartley, one of the defendants.   In the affidavit, Bartley avers that based on her personal, firsthand knowledge, the instrument executed on January 17, 2006, was not a note but a “fall-between” instrument, as described in General Statutes § 42a–3–104(e).⁴  Furthermore, she avers that she has personal, firsthand knowledge that the plaintiff is not a valid holder of the note, the plaintiff has failed to state a claim upon which relief is granted, and the plaintiff is not in possession of the original contract.

Averments contained in an affidavit that are merely denials of the allegations in a complaint “are an insufficient basis for the rendition of summary judgment.”  Gambardella v. Kaoud, 38 Conn.App. 355, 360, 660 A.2d 877 (1995).  “[A]ffidavits containing self-serving allegations need not be viewed as persuasive by the court ․ Additionally, [t]he Superior Courts have consistently discounted self-serving affidavits as insufficient to support a motion for summary judgment.”  (Internal quotation marks omitted.)   Petra Construction Co. v. Sacred Heart University, Superior Court, complex litigation docket at Hartford, Docket No. X03 CV 09 6013738 (May 26, 2011, Miller, J.) (52 Conn. L. Rptr. 83, 86).   Conclusory and self-serving statements do not constitute evidence that is sufficient to establish the non-existence of a material fact.   See Gupta v. New Britain General Hospital, 239 Conn. 574, 583, 687 A.2d 111 (1996) (finding that the plaintiff's conclusory statements in his own affidavit do not constitute evidence sufficient to establish the existence of disputed material facts).

In the present case, Bartley's affidavit includes a legal conclusion that the instrument executed by the parties was not a note as well as other legal conclusions, which are insufficient to prove the absence of genuine issues of material fact so as to entitle the defendants to summary judgment.   Furthermore, because the defendants have not established an absence of genuine issues of material fact, the plaintiff does not have the burden to come forward with evidence establishing issues of material fact.   See Rockwell v. Quintner, 96 Conn.App. 221, 229–30, 899 A.2d 738, cert. denied, 280 Conn. 917, 908 A.2d 538 (2006) (“[W]hen 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”).

CONCLUSION

Accordingly, because the evidence submitted in support of the defendants' motion for summary judgment fails to establish that there are no genuine issues of material fact, the defendants' motion for summary judgment is hereby denied.

Peck, J.

FOOTNOTES

FN1. The revised complaint alleges that after the note was executed and delivered to GN Mortgage, it was subsequently specially endorsed payable to Guaranty Bank, FSB, and thereafter specially endorsed payable to Lehman Brothers Bank, FSB, and thereafter specially endorsed payable to Lehman Brothers Holding, Inc., and thereafter was endorsed in blank and transferred to the plaintiff's physical possession prior to June 23, 2011.   The assignment of the mortgage to the plaintiff was subsequently recorded on the Hartford Land Records on August 29, 2011..  FN1. The revised complaint alleges that after the note was executed and delivered to GN Mortgage, it was subsequently specially endorsed payable to Guaranty Bank, FSB, and thereafter specially endorsed payable to Lehman Brothers Bank, FSB, and thereafter specially endorsed payable to Lehman Brothers Holding, Inc., and thereafter was endorsed in blank and transferred to the plaintiff's physical possession prior to June 23, 2011.   The assignment of the mortgage to the plaintiff was subsequently recorded on the Hartford Land Records on August 29, 2011.

FN2. The defendants have not filed an answer with the court.   The defendants did, however, file a motion to strike on November 16, 2011, and a motion to dismiss on December 8, 2011.   Both motions were denied by the court (Scholl, J.)..  FN2. The defendants have not filed an answer with the court.   The defendants did, however, file a motion to strike on November 16, 2011, and a motion to dismiss on December 8, 2011.   Both motions were denied by the court (Scholl, J.).

FN3. The majority of the arguments asserted by the defendants are derivative of their assertion that the instrument executed was not a valid note, but instead a “fall-between” instrument containing elements of both a note and a draft.   Furthermore, the defendants argue that they were fraudulently induced to sign the “fall-between” instrument through misrepresentation by the original lender..  FN3. The majority of the arguments asserted by the defendants are derivative of their assertion that the instrument executed was not a valid note, but instead a “fall-between” instrument containing elements of both a note and a draft.   Furthermore, the defendants argue that they were fraudulently induced to sign the “fall-between” instrument through misrepresentation by the original lender.

FN4. General Statutes § 42a–3–104(e) provides:  “An instrument is a ‘note’ if it is a promise and is a ‘draft’ if it is an order.   If an instrument falls within the definition of both ‘note’ and ‘draft,’ a person entitled to enforce the instrument may treat it as either.”.  FN4. General Statutes § 42a–3–104(e) provides:  “An instrument is a ‘note’ if it is a promise and is a ‘draft’ if it is an order.   If an instrument falls within the definition of both ‘note’ and ‘draft,’ a person entitled to enforce the instrument may treat it as either.”

Peck, A. Susan, J.