Wells Fargo Bank, N.A. v. Sarah Sterling et al. (2013)

MEMORANDUM OF DECISION

Before the court are (1) the defendant's motion to strike (# 137) based on misjoinder of parties;  and (2) the plaintiff's motion for summary judgment (# 128) as to liability only.   For the reasons stated, the motion to strike will be denied, and the motion for summary judgment will be granted.

I

FACTS

On January 30, 2012, the plaintiff, Wells Fargo Bank, N.A., filed a foreclosure action against the defendants, Donald Tutson, Jr., as executor of the estate of Donald Tutson, Donald Tutson, Jr., individually, Valerie Tutson and Sarah Sterling.¹  The complaint alleges that on or about December 19, 2007, Nan Tutson and Donald Tutson executed and delivered to the plaintiff a note for a loan not to exceed a maximum original principal amount of $427,500.   To secure the note, Nan and Donald Tutson executed and delivered to the plaintiff a reverse annuity mortgage on property located at 97 Perry Drive, New Milford, CT. The mortgage was recorded on December 24, 2007, and the plaintiff is the holder of the note and mortgage.   Nan Tutson died on March 11, 2009, and Donald Tutson (“the decedent”) died on January 3, 2011.   Donald Tutson, Jr. was appointed executor of the decedent's estate by the New Milford Probate Court on April 4, 2011.   The complaint alleges that the individual defendants, Donald Tutson, Jr., Valerie Tutson and Sarah Sterling, are heirs of the decedent's estate.   The note is in default, which default has not been cured, and the plaintiff seeks to foreclosure on the mortgage.   On February 4, 2013, Donald Tutson, Jr. and Valerie Tutson filed an answer to the plaintiff's complaint.

On March 15, 2013, the plaintiff filed a motion for summary judgment, along with a supporting memorandum of law and evidentiary support.   On August 30, 2013, Donald Tutson, Jr., as executor, filed an objection to the motion for summary judgment, along with evidentiary support.   On April 4, 2013, Donald Tutson, Jr., as executor, filed a motion to strike the complaint for misjoinder of the individual defendants.   On July 2, 2013, the plaintiff filed an objection to the motion to strike.   Both motions were heard on the September 3, 2013 short calendar.

II

DISCUSSIONAMotion to Strike

Donald Tutson, Jr., as executor, moves to strike the complaint on the ground that the individual defendants are not proper parties to the action.   He argues, first, that the individual defendants did not sign the note and mortgage.   Next, he asserts that Sarah Sterling, the decedent's niece, is not an heir at law, and the will relied on by the plaintiff leaves her nothing if either Donald Tutson, Jr. or Valerie Tutson survive the decedent.   Finally, he argues that he, individually, and Valerie Tutson, while heirs at law, have no right to possession of the property until the estate is settled and, thus, the only proper defendant is Donald P. Tutson, Jr., as executor.

The plaintiff objects, arguing that heirs to an estate are necessary parties to a foreclosure action and the individual defendants have been properly joined.   The plaintiff asserts that the issue is one of ownership, not possession, and, under standard 13.7(b) of the Connecticut Standards of Title, heirs and devisees must be joined in a foreclosure action instituted during the settlement of an estate.   The plaintiff also notes the Sarah Sterling is properly named as the estate has not been settled and it is possible that Donald Tutson, Jr. and Valerie Tutson may not survive and the property could pass to Sarah Sterling.   Finally, the plaintiff notes that it has not alleged in the complaint that the individual defendants signed the note or mortgage.   Rather, the complaint alleges that the individual defendants are owners of the property to which the mortgage is attached and their liability is limited to the extent of their ownership rights in the property.   The complaint seeks to foreclose on the ownership rights of the individual defendants and is properly pled.

“The exclusive remedy for misjoinder of parties is by motion to strike.”   (Internal quotation marks omitted.)  Hilton v. New Haven, 233 Conn. 701, 723 n.23, 661 A.2d 973 (1995).  “Upon the death of the owner of real estate, neither the executor nor the administrator holds title ․ Title immediately descends to the heirs or devisees of real estate, subject to the right of administration ․ No decree can enter affecting title to real estate unless all of the parties who will be directly affected by any judgment that may be rendered are before the court.”  (Citations omitted.)  Goodman v. Bank of Boston Connecticut, 27 Conn.App. 333, 341–42, 606 A.2d 994 (1992).   A “[p]laintiff in a foreclosure action is obliged to name as defendants, all persons who may have an interest in the property being foreclosed.”  (Emphasis in original.)   Trumbull v. Palmer, Superior Court, judicial district of Fairfield, Docket No. CV–05–5004063–S (August 24, 2007, Maiocco, J.T.R.);   see Wachovia Bank v. Spitzer, Superior Court, judicial district of New Haven, Docket No. CV–05–4015844–S (December 29, 2006, Silbert, J.) (widow and heirs of decedent cited in as defendants in foreclosure action).  “Although the mortgagor, upon granting the mortgage, is divested of all legal title in the mortgaged property, retaining only an equity of redemption which is considered personal property, nevertheless, upon the mortgagor's death, this personal property is converted into real property ․ the title to which descends to the mortgagor's heirs or devisees.   This results in the following ․ (b) if foreclosure is instituted by the mortgagee during settlement of the estate, the heirs or devisees must be made party defendants and not the fiduciary of the mortgagor's estate ․” Connecticut Bar Association, Inc., Connecticut Standards of Title (1999) standard 13.7.

Accordingly, the individual defendants, as heirs and/or devisees, are properly named defendants.   The motion to strike is denied.

B

Motion for Summary Judgment

“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.)  Sherman v. Ronco, 294 Conn. 548, 553–54, 985 A.2d 1042 (2010).  “[T]he ‘genuine issue’ aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred ․ A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case.”  (Citation omitted;  internal quotation marks omitted.)  Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).

“In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact.   The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law.   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 ․ As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ․ 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.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).

The plaintiff moves for summary judgment, as to liability only, on its foreclosure complaint.   Donald Tutson, Jr., as executor, filed an objection to the motion for summary judgment based on the previously determined issue of misjoinder of parties.   To that end, Donald Tutson Jr.'s objection is insufficient to prevent summary judgment from entering on liability only, as the individual defendants are properly named defendants.

“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).   In the present case, the plaintiff submitted evidence sufficient for this court to find that it is the holder of the note and mortgage.   The evidence is also sufficient to find that the payments are in default, and have been since January 29, 2011, and that the loan documents are in default due to the deaths of the borrowers and the failure to make payments in accordance with the terms of the loan documents.   There are no genuine issues of material fact presented by the defendants' answers and no special defenses were asserted.   Therefore, the plaintiff is entitled to summary judgment, as to liability only, and the motion is granted.

BY THE COURT,

John W. Pickard

FOOTNOTES

FN1. State of Connecticut Department of Revenue and Secretary of Housing and Urban Development are also named defendants.   However, neither are involved in either the motion to strike or motion for summary judgment..  FN1. State of Connecticut Department of Revenue and Secretary of Housing and Urban Development are also named defendants.   However, neither are involved in either the motion to strike or motion for summary judgment.

Pickard, John W., J.