Suntrust Mortgage, Inc. v. Christopher Fitzpatrick et al. (2013)

MEMORANDUM OF DECISION

The substituted plaintiff in this foreclosure action, U.S. Bank, National Association, as trustee for MASTR 2007–2, moves for summary judgment on the issue of liability against the defendant, Christopher Fitzpatrick.   The plaintiff claims that it has established a prima facie case for foreclosure of a mortgage.   The defendant opposes the motion generally asserting that the plaintiff has failed to demonstrate that its predecessor in interest, Suntrust Mortgage, Inc., was the owner of the note at the time the action was commenced or that the plaintiff owns the mortgage.   The plaintiff responds that the defendant has failed to produce any counteraffidavits or other evidence that contradicts the evidence produced by the plaintiff in support of its motion, and that the assignment of mortgage from Suntrust to the plaintiff is valid.   For the reasons hereinafter discussed, the court grants the plaintiff's motion for summary judgment.

“A prima facie case, in the sense in which that term is relevant to this case, is one sufficient to raise an issue to go to the trier of fact ․ In order to establish a prima facie case, the proponent must submit evidence which, if credited, is sufficient to establish the fact or facts which it is adduced to prove.”  (Citations omitted;  emphasis omitted;  internal quotation marks omitted.)  New England Savings Bank v. Bedford Realty Corp., 246 Conn. 594, 608, 717 A.2d 713 (1998).

“In order to establish a prima facie case in a mortgage foreclosure action, the plaintiff must prove by a preponderance of the evidence that it is the owner of the note and mortgage, that the defendant mortgagor has defaulted on the note and that any conditions precedent to foreclosure, as established by the note and mortgage, have been satisfied ․ Thus, a court may properly grant summary judgment as to liability in a foreclosure action if the complaint and supporting affidavits establish an undisputed prima facie case and the defendant fails to assert any legally sufficient special defense.”  (Citations omitted.)  GMAC Mortgage, LLC v. Ford, 144 Conn.App. 165, 176 (2013).

“A mortgagee that seeks summary judgment in a foreclosure action has the evidentiary burden of showing that there is no genuine issue of material fact as to any of the prima facie elements, including that it is the owner of the debt.   Appellate courts in this state have held that that burden is satisfied when the mortgagee includes in its submissions to the court a sworn affidavit averring that the mortgagee is the holder of the promissory note in question at the time it commenced the action ․ The evidentiary burden of showing the existence of a disputed material fact then shifts to the defendant.   It is for the maker of the note to rebut the presumption that a holder of the note is also the owner of it.”  (Citations omitted;  internal quotation marks omitted.)  Id., 177.

The plaintiff has submitted in support of its motion an affidavit along with copies of the note and two associated allonges, mortgage deed and subsequent assignments of mortgage.   The defendant primarily challenges the allonges contending that there is no evidence that they were affixed to the note, and that the fact that they are undated is fatal to the plaintiff's motion because there remains a question as to when Suntrust or the plaintiff became the holder of the note.

The affidavit in support of the plaintiff's motion was signed by Phyllis A. Sims as “an authorized signer on behalf of [the plaintiff] U.S. Bank, National Association, as trustee for MASTR 2007–2.”   Sims also stated that she has personal knowledge of the records of the plaintiff “as they apply to the account of the defendant,” and that the records are made and kept in the regular course of business of the plaintiff and were made at or about the time described.¹

As set forth in the affidavit, the note was endorsed and given to Suntrust prior to the commencement of the action.   This averment is supported by a copy of an undated allonge that appears immediately after the copy of the note, recites that it “is to be made a part of the [n]ote,” references the defendant's loan and is endorsed to Suntrust.   The affidavit further references that subsequent to the commencement of the action the note was endorsed and given to the plaintiff by way of an allonge.   This averment is supported by a copy of an undated allonge that appears immediately after the first allonge to the note, recites that it is a “further endorsement of the following described [n]ote ․ [and] is affixed to and becomes a permanent part of [the][n]ote.”   The allonge expressly relates to the defendant's note and is endorsed to the plaintiff.

The affidavit, viewed together with the note and the copies of the allonges to the note, present evidence that the plaintiff is the holder of the note.  “A mortgagee that seeks summary judgment in a foreclosure action has the evidentiary burden of showing that there is no genuine issue of material fact as to any of the prima facie elements, including that it is the owner of the debt.   Appellate courts in this state have held that that burden is satisfied when the mortgagee includes in its submissions to the court a sworn affidavit averring that the mortgagee is the holder of the promissory note in question at the time it commenced the action ․ The evidentiary burden of showing the existence of a disputed material fact then shifts to the defendant.   It is for the maker of the note to rebut the presumption that a holder of the note is also the owner of it.”  (Citations omitted;  internal quotation marks omitted.)  GMAC Mortgage, LLC v. Ford, supra, 144 Conn.App. 177.   The defendant failed to provide any evidentiary proof raising an issue of material fact as to whether the plaintiff is the owner of the debt.   Having failed to present any evidence rebutting the presumption that Suntrust was the rightful owner of the debt at the time that it commenced the foreclosure action, and that the substituted plaintiff is presently the rightful owner, the defendant has failed to satisfy his burden of providing any evidentiary foundation to demonstrate the existence of a genuine issue of material fact concerning the note holder.²

In view of the foregoing, the plaintiff's motion for summary judgment is granted only as to the issue of liability.

TYMA, J.

FOOTNOTES

FN1. The defendant challenges the personal knowledge of Sims as it applies to the business of Suntrust, and contends that the court should not consider the affidavit.   The court disagrees.  “More recent Connecticut case law has articulated similarly modest requirements for the admission of business records under § 52–180 ․ The court must determine, before concluding that [the document] is admissible, that the record was made in the regular course of business, that it was the regular course of such business to make such a record, and that it was made at the time of the act described in the report, or within a reasonable time thereafter ․ The proponent need not prove the accuracy of the record;  its weight is an issue for the trier of fact ․ We have stated that § 52–180 should be liberally interpreted in favor of admissibility ․ The witness introducing the document need not have made the entry himself or herself, nor have been employed by the organization during the relevant time ․ In addition, [t]here is no requirement in § 52–180 ․ that the documents must be prepared by the organization itself to be admissible as that organization's business records.”  (Citation omitted;  internal quotation marks omitted.)  New England Savings Bank v. Bedford Realty Corporation, supra, 246 Conn 602–03.   The defendant provides no authority, and the court knows of none, that precludes affiants from obtaining personal knowledge of underlying transactions by review of business records.  “Under General Statutes § 52–180, to be competent to testify, the affiant need only have personal knowledge of the relevant business records.”  (Citations omitted;  footnote omitted.)  RMS Residential Properties, LLC v. Miller, 303 Conn 224, 235–36, 32 A.3d 307 (2011), overruled on other grounds by J.E. Robert Co. v. Signature Properties, LLC, 309 Conn. 307, 325 n. 18, 71 A.3d 492 (2012).   Accordingly, the court concludes that the affidavit supplied an evidentiary basis in support of the plaintiff's motion for summary judgment..  FN1. The defendant challenges the personal knowledge of Sims as it applies to the business of Suntrust, and contends that the court should not consider the affidavit.   The court disagrees.  “More recent Connecticut case law has articulated similarly modest requirements for the admission of business records under § 52–180 ․ The court must determine, before concluding that [the document] is admissible, that the record was made in the regular course of business, that it was the regular course of such business to make such a record, and that it was made at the time of the act described in the report, or within a reasonable time thereafter ․ The proponent need not prove the accuracy of the record;  its weight is an issue for the trier of fact ․ We have stated that § 52–180 should be liberally interpreted in favor of admissibility ․ The witness introducing the document need not have made the entry himself or herself, nor have been employed by the organization during the relevant time ․ In addition, [t]here is no requirement in § 52–180 ․ that the documents must be prepared by the organization itself to be admissible as that organization's business records.”  (Citation omitted;  internal quotation marks omitted.)  New England Savings Bank v. Bedford Realty Corporation, supra, 246 Conn 602–03.   The defendant provides no authority, and the court knows of none, that precludes affiants from obtaining personal knowledge of underlying transactions by review of business records.  “Under General Statutes § 52–180, to be competent to testify, the affiant need only have personal knowledge of the relevant business records.”  (Citations omitted;  footnote omitted.)  RMS Residential Properties, LLC v. Miller, 303 Conn 224, 235–36, 32 A.3d 307 (2011), overruled on other grounds by J.E. Robert Co. v. Signature Properties, LLC, 309 Conn. 307, 325 n. 18, 71 A.3d 492 (2012).   Accordingly, the court concludes that the affidavit supplied an evidentiary basis in support of the plaintiff's motion for summary judgment.

FN2. General Statutes § 49–17 provides:  “When any mortgage is foreclosed by the person entitled to receive the money secured thereby but to whom the legal title to the mortgaged premises has never been conveyed, the title to such premises shall, upon the expiration of the time limited for redemption and on failure of redemption, vest in him in the same manner and to the same extent as such title would have vested in the mortgagee if he had foreclosed, provided the person so foreclosing shall forthwith cause the decree of foreclosure to be recorded in the land records in the town in which the land lies.”“Section 49–17 codifies the well established common law principle that the mortgage follows the note, pursuant to which only the rightful owner of the note has the right to enforce the mortgage ․ Our legislature, by adopting § 49–17, created a statutory right for the rightful owner of a note to foreclose on real property regardless of whether the mortgage has been assigned to him.”  (Citation omitted.)  RMS Residential Properties, LLC v. Miller, supra, 303 Conn. 230.Because the defendant offered no evidence to impeach the validity of the plaintiff's evidence that Suntrust possessed the note at the time that it commenced the present action and the plaintiff now has possession of the note, or to rebut the presumption that the plaintiff owns the underlying debt, and as a matter of law the mortgage follows the note, the court concludes that there is no question of fact that the present foreclosure action was properly commenced and remains properly prosecuted.   In view of the foregoing, the court need not address the defendant's argument that there exists a material question of fact has to whether the defendant was properly assigned the mortgage..  FN2. General Statutes § 49–17 provides:  “When any mortgage is foreclosed by the person entitled to receive the money secured thereby but to whom the legal title to the mortgaged premises has never been conveyed, the title to such premises shall, upon the expiration of the time limited for redemption and on failure of redemption, vest in him in the same manner and to the same extent as such title would have vested in the mortgagee if he had foreclosed, provided the person so foreclosing shall forthwith cause the decree of foreclosure to be recorded in the land records in the town in which the land lies.”“Section 49–17 codifies the well established common law principle that the mortgage follows the note, pursuant to which only the rightful owner of the note has the right to enforce the mortgage ․ Our legislature, by adopting § 49–17, created a statutory right for the rightful owner of a note to foreclose on real property regardless of whether the mortgage has been assigned to him.”  (Citation omitted.)  RMS Residential Properties, LLC v. Miller, supra, 303 Conn. 230.Because the defendant offered no evidence to impeach the validity of the plaintiff's evidence that Suntrust possessed the note at the time that it commenced the present action and the plaintiff now has possession of the note, or to rebut the presumption that the plaintiff owns the underlying debt, and as a matter of law the mortgage follows the note, the court concludes that there is no question of fact that the present foreclosure action was properly commenced and remains properly prosecuted.   In view of the foregoing, the court need not address the defendant's argument that there exists a material question of fact has to whether the defendant was properly assigned the mortgage.

Tyma, Theodore R., J.