Deutsche Bank National Trust Company as Trustee v. Dorothy Gagnon aka (2013)

MEMORANDUM OF DECISION (Motion for Summary Judgment, # 176.00 & Objection # 180.00)

On April 26, 2010, the plaintiff, Deutsche Bank National Trust Company (Deutsche), as Trustee for IndyMac INDX Mortgage Loan Trust 2006–AR29 (IndyMac), filed a complaint seeking mortgage foreclosure against the defendant, Dorothy Gagnon.   The plaintiff alleges the following facts.   On June 22, 2006, the defendant executed and delivered to American Mortgage Network, Inc. (AMN), a note for a loan on certain real property owned by the defendant in the amount of $202,400.   On that date, the defendant also executed a mortgage to AMN, pledging a security interest in that property located at 46 North Road, Ashford, Connecticut.   The mortgage was recorded on June 28, 2006.   The mortgage was assigned to the plaintiff as trustee for IndyMac by way of assignment of the mortgage dated June 18, 2010, and recorded June 30, 2010.   The plaintiff, as trustee for IndyMac, is the holder of the note and mortgage.

Under the terms of the note and mortgage, the defendant was required to make monthly principal and interest payments on the first day of each month beginning on August 1, 2006.   The defendant failed to make the monthly payments as required by the loan documents.   On January 27, 2010, the defendant was sent a demand letter notifying her of her default and the loan's pending acceleration if such default was not cured.   The demand letter gave the defendant until February 26, 2010 to cure her default.

On September 2, 2011, the defendant filed an answer and special defenses.   On February 21, 2012, the plaintiff filed a motion for summary judgment as to liability, a memorandum and several exhibits in support thereof.   The defendant filed an objection and memorandum in opposition on June 21, 2012 and an affidavit and exhibits in support of her opposition on June 22, 2012.   The matter was heard at short calendar on January 7, 2013.

DISCUSSION

“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.)  Brooks v. Sweeney, 299 Conn. 196, 210, 9 A.3d 347 (2010).  “The 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.”  Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).

“In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue.”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).  “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).   Likewise, “[t]he existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence.”  (Internal quotation marks omitted.)  Little v. Yale University, 92 Conn.App. 232, 235, 884 A.2d 427 (2005), cert. denied, 276 Conn. 936, 891 A.2d 1 (2006).  “[B]efore a document may be considered by the court [in connection with] a motion for summary judgment, there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be.   The requirement of authentication applies to all types of evidence, including writings ․ Conn.Code Evid. § 9–1(a), commentary.   Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including, but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be.”   (Internal quotation marks omitted.)  Gianetti v. Health Net of Connecticut, Inc., 116 Conn.App. 459, 466–67, 976 A.2d 23;  accord New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005).

“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.)  Ramirez v. Health Net of the Northeast, Inc., supra, 285 Conn. 11.  “Such assertions are insufficient regardless of whether they are contained in a complaint or a brief.”  (Internal quotation marks omitted.)  Romprey v. Safeco Ins. Co. of America, 129 Conn.App. 481, 497, 21 A.3d 889, cert. granted in part, 302 Conn. 934, 28 A.3d 991 889 (2011);  accord Shukis v. Board of Education, 122 Conn.App. 555, 565, 1 A.3d 137 (2010).

In her objection to the motion for summary judgment, the defendant challenges the plaintiff's standing to bring this foreclosure action to enforce the note.   The defendant's principal argument is that there are other companies who claim to have the right to collect on the very same note the plaintiff alleges to be the holder of.   The defendant asserts, as a result, that there is a genuine issue of material fact as to whether the plaintiff has standing to bring this foreclosure action and enforce the note.   The court agrees with the defendant.

“The question of standing implicates a court's subject matter jurisdiction and, as such, may be raised at any time during the proceedings ․ Standing is the legal right to set judicial machinery in motion.   One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy.”  (Citations omitted;  internal quotation marks omitted.)   Ulster Savings Bank v. 28 Brynwood Lane, Ltd., 134 Conn.App. 699, 705, 41 A.3d 1077 (2012).

“It is well established that the holder of a promissory note secured by a mortgage automatically has standing and thus the right to enforce the mortgage.   The mortgage follows the debt, in the sense that the assignment of the note evidencing the debt automatically carries with it the assignment of the mortgage.  New Milford Savings Bank v. Jajer, 244 Conn. 251, 266 (1998), citing, inter alia, Restatement (Third) Property, Mortgages § 1.1 ․” (Citations omitted;  internal quotation marks omitted.)  Ulster Savings Bank v. 28 Brynwood Lane, Ltd., Superior Court, judicial district of Stamford–Norwalk, Docket No. CV 05 4007323 (May 27, 2010, Jennings, J.T.R.), aff'd., 134 Conn.App. 699, 41 A.3d 1077 (2012).  “[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.”  (Internal quotation marks omitted.)  RMS Residential Properties, LLC v. Miller, 303 Conn. 224, 231–32, 32 A.3d 307 (2011).

In the present case, the plaintiff submitted numerous exhibits, including a sworn affidavit by a servicing representative alleging that the note was endorsed in blank and in the possession of the plaintiff prior to the commencement of this action, which is prima facie evidence that it is the holder of the mortgage and note.¹  The plaintiff, as the holder of the note, is presumed to be the owner of the underlying debt, and therefore the plaintiff is entitled to foreclose the mortgage unless the defendant sets up and proves facts that rebut the presumption of ownership.

To rebut this presumption, the defendant has submitted a sworn personal affidavit, along with numerous exhibits which allegedly show that multiple entities claim to have the right to enforce the same note.   These exhibits include notices and correspondence from Chase Bank and Personal Recovery Services, Inc. mailed to the defendant attempting to collect the outstanding balance of the same mortgage the plaintiff is attempting to foreclose on in the present case.   The plaintiff has failed to provide any additional facts to rebut the defendant's affidavit or exhibits.

CONCLUSION

Accordingly, the defendant has raised an issue of material fact regarding whether the plaintiff owns the underlying debt, and thus the plaintiff's standing to commence the present foreclosure action.   For the foregoing reasons, the plaintiff's motion for summary judgment is denied.

THE COURT

CALMAR, J.

FOOTNOTES

FN1. The plaintiff presented the original note to the court at short calendar on January 7, 2013..  FN1. The plaintiff presented the original note to the court at short calendar on January 7, 2013.

Calmar, Harry E., J.