LLC v. Michele L. Curnan et al. (2012)

RULING ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (# 108)

By motion filed November 28, 2011, the plaintiff, Aurora Loan Services, LLC, moved for summary judgment as to liability on the complaint and as to the defendants' special defenses.   The defendants, Michele L. Curnan and Martin J. Curnan, objected to the motion on February 29, 2012 (# 113).   This matter came before the court and was heard on March 19, 2012 and again on May 7, 2012.   The motion for summary judgment is granted.

I

FACTUAL AND PROCEDURAL BACKGROUND

On August 9, 2010, the plaintiff filed a one-count complaint against the defendants, alleging that on September 25, 2006, defendant Michele L. Curnan executed a note (“note”) for a loan in the amount of $500,000, secured by a mortgage executed by both defendants, on the defendants' residence at 150 Eabow Brook Road in Bridgewater, Connecticut.   The plaintiff claims that the defendants are in default and that the plaintiff is entitled to foreclose on the property.   The plaintiff claims that the defendants delivered the note and mortgage to Fairfield Financial Mortgage Group, Inc. (FFMG).  The plaintiff claims that it was assigned the mortgage by Mortgage Electronic Registration Systems, Inc. (“MERS”), as nominee for FFMG. The plaintiff further alleges that it is the holder of the note.

The defendants answered the complaint on October 20, 2011.   In addition to answering the allegations of the complaint, they raised the following special defenses:  the plaintiff is not the holder of the note;  it is not the current mortgagee of the property referred to in the complaint;  and it does not have possession of the original note and/or deed.

On November 27, 2011, the plaintiff moved for summary judgment, which the defendants opposed on February 29, 2012.   The defendants' one-page objection claims that there exist issues of fact that preclude the entry of summary judgment.   The defendants also argue that the plaintiff's motion and memorandum are unaccompanied by documentation showing the assignment of the promissory note.   The defendants did not support their objection with an affidavit or any other documentation.

II

DISCUSSION

Summary judgment is appropriate if the pleadings, affidavits, and other proof submitted show that there are no genuine issues as to material fact and that the moving party is entitled to judgment as a matter of law.  Practice Book § 17–49.  “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 moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law.”  (Internal quotation marks omitted.)  Boyne v. Glastonbury, 110 Conn.App. 591, 595–96, 955 A.2d 645, cert. denied, 289 Conn. 947, 959 A.2d 1011 (2008).  “[A] party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue.”  (Internal quotation marks omitted.)  Id., 596.

“The facts at issue [in the context of summary judgment] are those alleged in the pleadings.”  (Internal quotation marks omitted.)  Arnone v. Connecticut Light & Power Co., 90 Conn.App. 188, 193, 878 A.2d 347 (2005).  “A material fact is a fact which will make a difference in the result of the case ․ [I]ssue-finding, rather than issue-determination, is the key to the procedure ․ [T]he trial court does not sit as the trier of fact when ruling on a motion for summary judgment ․ [Its] function is not to decide issues of material fact, but rather to determine whether any such issues exist.”   (Internal quotation marks omitted.)  Keller v. Beckenstein, 117 Conn.App. 550, 557–58, 979 A.2d 1055, cert. denied, 294 Conn. 913, 983 A.2d 274 (2009).

“The courts hold the movant to a strict standard.   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 ․ 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 ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ․ It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.   Mere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17–45].”  (Internal quotation marks omitted.)   Zielinski v. Kotsoris, 279 Conn. 312, 318–19, 901 A.2d 1207 (2006).  “Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment.”  Home Ins. Co. v. Aetna Life & Casualty Co., 235 Conn. 185, 202–03, 663 A.2d 1001 (1995).  “[A] party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment.”  (Internal quotation marks omitted.)  Norse Systems, Inc. v. Tingley Systems, Inc., 49 Conn.App. 582, 591, 715 A.2d 807 (1998).

“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 mortgagee] [has] defaulted on the note.”  (Internal quotation marks omitted.)  Franklin Credit Management Corp. v. Nicholas, 73 Conn.App. 830, 838, 812 A.2d 51 (2002), cert. denied, 262 Conn. 937, 815 A.2d 136 (2003).

The plaintiff attached to its supporting affidavit what are alleged to be “true and accurate copies” of the note (Exhibit A), the mortgage (Exhibit B), the assignment of the mortgage by MERS as nominee for FFMG to the plaintiff (Exhibit C), a letter notifying the defendants that they were in default (Exhibit D) and information from the plaintiff's records relating to the amount due on the mortgage loan (Exhibit E).

The defendants' objection does not contest the fact that the defendants have defaulted.   However, their special defenses and their objection to the motion for summary judgment both assert that the plaintiff does not own or possess either the mortgage or the note.

The burden is on the plaintiff to establish a prima facie case for a mortgage foreclosure.  “When a complaint and supporting affidavits establish an undisputed prima facie case for a foreclosure action, a court must only determine whether [a] special defense is legally sufficient before granting summary judgment.”   LaSalle National Bank v. Shook, Superior Court, judicial district of New London, Docket No. CV 549266 (July 13, 2000, Martin, J.).

Here, the plaintiff supports its motion for summary judgment with an affidavit by Kari D. Clevenger (“Clevenger”), who identifies herself as a “foreclosure processor III,” and who claims that she has personal knowledge of the plaintiff's books and records as they apply to the defendants' account.   In that affidavit, Clevenger asserts that FFMG endorsed the note to Lehman Brothers Bank, FSB, which endorsed the note to Lehman Brothers Holding, Inc., and then Lehman Brothers Holdings, Inc. endorsed the note in blank, making it bearer paper.   At that point, Lehman Brothers Holdings, Inc. supplied the note to the plaintiff.   Clevenger states that the note is attached as Exhibit A to her affidavit.

A review of Exhibit A reveals that the original lender is FFMG. Page six of the note reflects the following three entries, each apparently created with a stamp, that set forth the following information:  (1) “Pay to the order of Lehman Brothers Bank FSB without recourse by Maureen P. Terry, Assistant Secretary, Fairfield Financial Mortgage Group, Inc.” The line above the name “Maureen P. Terry” carries a signature that appears to state, “Maureen P. Terry”;  (2) “Pay to the order of Lehman Brothers Holdings Inc. without recourse Lehman Brothers Bank, FSB. Rick W. [unreadable] ¹ Vice President.”   A signature appears above the foregoing line on the stamped entry, and there is a signature on that line;  and (3) “Pay to the order of_.”  Beneath the foregoing line, which does not carry any signature, are the words “without recourse, Lehman Brothers Holdings Inc.” Under those words is a signature line that carries a signature and under that line appears the name “Paul E. Sveen,² Authorized Signatory.”   Thus, the exhibit which Clevenger claims is a true and accurate copy of the note carries information, consistent with the allegations in her affidavit, establishing that the plaintiff is in possession of the original note.   Clevenger also avers that the plaintiff is the mortgagee of record, that the assignment was recorded on August 4, 2010, in volume 77 at page 340–41 of the Bridgewater land records, and that the plaintiff was in possession of the original note prior to the commencement of this foreclosure action.   See Ulster Savings Bank v. 28 Brynwood Lane, Ltd., 134 Conn.App. 699, 705–10 (2012).

Our Supreme Court has held that “a holder of a note is presumed to be the owner of the debt, and unless the presumption is rebutted, may foreclose the mortgage under [General Statutes] § 49–17.   The possession by the bearer of a note indorsed in blank imports prima facie that he acquired the note in good faith for value and in the course of business, before maturity and without notice of any circumstances impeaching its validity.   The production of the note establishes his case prima facie against the makers and he may rest there ․ It [is] for the defendant to set up and prove the facts which limit or change the plaintiff's rights ․ Accordingly, because the defendant offered no evidence to impeach the validity of RMS' evidence that it possessed the note at the time that it commenced the present action or to rebut the presumption that RMS owns the underlying debt, and as a matter of law the mortgage follows the note, we conclude that RMS was authorized by statute to commence this foreclosure action.”  (Citation omitted;  internal quotation marks omitted.)   RMS Residential Properties, LLC v. Miller, 303 Conn. 224, 231–32, 32 A.3d 307 (2011).

Here, the defendants have made no showing and assert no facts impeaching the validity of the plaintiff's evidence that it possessed the note at the time that it commenced this action or rebutting the presumption that the plaintiff owns the underlying debt.   The plaintiff has made a prima facie case, which stands unrebutted, permitting it to prevail in its motion for summary judgment as to the defendants' special defenses.   Further, on May 7, 2012, the parties appeared before the court for the purpose of examining the note and mortgage held by the plaintiff.   The court and the defendant both examined the note and mortgage documents that are in the plaintiff's possession.   The defendant stipulated, and the court so finds, that the plaintiff is in possession of the original note and mortgage.  Ulster Savings Bank v. 28 Brynwood Lane, Ltd., 134 Conn.App. 699, 706 n.4 (2012).

Clevenger's affidavit also asserts that the defendants were obligated to make principal and interest payments on the first day of each month beginning on November 1, 2006, and each and every month thereafter until the note is fully paid, on October 1, 2036.   Clevenger asserts that the defendants have failed to make mortgage payments since March 1, 2010.   Consequently, Clevenger claims, the defendants are in default under the loan documents, they were notified in writing of the consequences of their default and the note has been accelerated.   The defendants' objection to the motion for summary judgment does not address, let alone rebut, any of the foregoing claims.

The defendants' objection, which consists of bare allegations in a one-page memorandum, is insufficient to demonstrate the existence of a disputed factual issue that rebuts the plaintiff's prima facie case or demonstrates the applicability of a legally sufficient special defense.  “Mere statements of legal conclusions or that an issue of fact does exist are not sufficient to raise the issue.”  United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 377, 260 A.2d 596 (1969).

III

CONCLUSION

For all of the foregoing reasons, the plaintiff's motion for summary judgment is granted as to liability, and summary judgment is granted in favor of the plaintiff as to the allegations of the defendants' special defenses.

So ordered.

BY THE COURT,

John A. Danaher, III

FOOTNOTES

FN1. The stamped entry is blurred, making part of the entry difficult to read..  FN1. The stamped entry is blurred, making part of the entry difficult to read.

FN2. This stamp and name are also somewhat blurred..  FN2. This stamp and name are also somewhat blurred.

Danaher, John A., J.