BAC v. Denise Samaha et al. (2013)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (# 126)

In this action, the plaintiff seeks to foreclose a mortgage executed by Joseph Samaha and Denise Samaha in favor of the Webster Bank in the principal amount of $162,000.00.   The note and mortgage are alleged to have been given on November 22, 2002.   The complaint further alleges that the note and mortgage went into default in September 2010.   Joseph Samaha is now deceased.

In support of this motion for summary judgment, the plaintiff has filed an affidavit of John Cook and the affidavit of Justi Nicole Hillberry.   These affidavits demonstrate that in accordance with the terms of the original note and mortgage, as well as our case law, that the plaintiff has standing to institute this action, and further, that it has established a prima facie case of liability as against the defendant, Denise Samaha.   The self-represented defendant, Denise Samaha, has failed to file any admissible evidence to contradict the contents of the plaintiff's affidavits.   The self-represented party certainly contests the contents of the Cook and Hillberry affidavits by argument, but has failed to provide any evidence that would cause the court to find that there are any genuine issues of material fact with regard to the making of the note and mortgage or the failure to pay in accordance with the terms of the obligation.

The defendant has raised several special defenses to this foreclosure action.   First, the defendant asserts that the plaintiff does not have standing to bring this litigation;  second, defendant claims that as a result of the death of one of the makers of the note, Joseph Samaha, that his estate has an indivisible interest in the subject property and is subject to probate court jurisdiction;  third, the defendant challenges the authority of the Mortgage Electronic Registration Systems, Inc. (MERS) to assign this mortgage to the plaintiff;  four, that the defendant has tendered payment with regard to the note and she alleges accord and satisfaction;  and, fifth, the defendant challenges whether or not the note in question was a negotiable instrument.

As previously noted, the defendant has failed to file any affidavits which would provide a factual foundation for any of these defenses that have been asserted as special defenses.

With regard to the first special defense, the court is of the opinion that the affidavits supplied by the plaintiff establish that they have standing for the purposes of doing this litigation.   See J.E. Robert Company, Inc. v. Signature Properties, LLC, 309 Conn. 307, 318–22 (2013).

The second special defense asserts that somehow that this court is deprived of jurisdiction because the defendant's husband has passed away.   There is simply no authority for this assertion by the defendant in this special defense and it cannot prevail.

The third special defense challenge the authority of the MERS to assign the note and mortgage.   There are no facts alleged in the special defense and there is no affidavit from the defendant providing any factual foundation for her assertions.

The fourth special defense asserts on information and belief that there has been tender and accord and satisfaction.   The mere assertion of this defense, without any evidence to support it, and thereby contest or create a material issue of fact for a motion of summary judgment is insufficient.

Finally, the fifth special defense asserts that the note in question is not a negotiable instrument.   This is the assertion of a legal conclusion.   The court is satisfied that the note is a negotiable instrument.

Based upon the foregoing analysis, the plaintiff's motion for summary judgment is granted as to liability only.

Cosgrove, J.

Cosgrove, Emmet L., J.