2006 CH1 2006 CH1 v. Glynnis Sorrentino et al. (2013)

MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT

The plaintiff has moved for summary judgment in this foreclosure action.   The plaintiff has appended an affidavit and copies of the pertinent documents to its Memorandum of Law. The defendant has failed to append any evidence whatsoever in opposition to the motion.

Factual and Procedural Background

This action was commenced against the defendants.   Glynnis Sorrentino and 85 Main, LLC by writ, summons and complaint date June 1, 2009.   The complaint alleges and the plaintiff has presented evidence that the defendant, Glynnis Sorrentino, executed and delivered a note in the original principal amount of $380,000 to Chase Bank USA, N.A. The plaintiff was the holder of the Note at the time of the commencement of this action by virtue of such Note being endorsed in blank and being bearer paper.   To secure the Note, on February 16, 2006, Glynnis Sorrentino conveyed by Mortgage Deed her interest in certain real property known as 85 Main Street, Centerbrook (Essex), Connecticut (the “Property”) to Chase Bank USA, N.A. The Mortgage was recorded on February 17, 2006 in Volume 250 at Page 979 of the Essex Land Records.

The defendant, Glynnis Sorrentino, by a Quit Claim Deed recorded on April 12, 2007 in Volume 264 at Page 151 of the Essex Land Records transferred her interest in the Property to defendant 85 Main, LLC, a Connecticut limited liability company with its sole member being Glynnis Sorrentino.   The transfer of the Property by the defendant was not authorized by the plaintiff or its predecessors and violates paragraph 19 of the Mortgage Deed and paragraph 11 of the Note.

The Mortgage was thereafter assigned by Chase Bank USA, N.A. to plaintiff, U.S. Bank National Association, as Trustee for J.P. Morgan Mortgage Acquisition Trust 2006–CH1, Asset Backed Pass–Through Certificates, Series 2006–CH1, by Assignment of Mortgage dated November 29, 2012 and recorded January 10, 2013 in Volume 296 at Page 177 of the Essex Land Records.   The plaintiff has attached copies of the Note, Mortgage and Assignment to the affidavit of Sherry Benight, document control officer with Select Portfolio Servicing, Inc., the duly authorized loan servicing agent of the plaintiff.

Under the terms of the Note and Mortgage, the defendant was to make payments on the first day of each month beginning on April 1, 2006 and each month thereafter until the maturity date of March 1, 2036.   The defendant has failed to make the payment due as required under the Note and Mortgage on October 1, 2009 and for each month thereafter.

On May 28, 2013, the defendants filed an answer with eleven special defenses and five counterclaims.   The defendants have presented no affidavits or other evidence in connection with their opposition to the motion for summary judgment.

Discussion of the Law and Ruling

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 ․ The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ․ and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.”   (Citations omitted;  internal quotation marks omitted.)  Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 251–52, 819 A.2d 773 (2003).  “A material fact ․ [is] a fact which will make a difference in the result of the case ․ Finally, the scope of our review of the trial court's decision to grant the plaintiff's motion for summary judgment is plenary.”  (Citation omitted;  internal quotation marks omitted.)   H.O.R.S.E. of Connecticut, Inc. v. Washington, 258 Conn. 553, 560, 783 A.2d 993 (2001).   Summary judgment is “designed to eliminate the delay and expense of litigating an issue where there is no real issue to be tried.”  Wilson v. City of New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).

The existence of a genuine issue of material fact must be demonstrated by counter affidavits and concrete evidence.  Pion v. Southern New England Telephone Co., 44 Conn.App. 657, 663, 691 A.2d 1107 (1997).   It is not enough for the opposing party merely to assert the existence of a disputed issue.   Daily v. New Britain Machine Co., 200 Conn. 562, 569, 512 A.2d 893 (1986).   A defendant's general denial of liability in a foreclosure action is insufficient as a matter of law to create any genuine issue of material fact.   Fidelity Bank v. Krenisky, 72 Conn.App. 700, 704–05, 807 A.2d 968 (2002).

The defendant has not challenged the allegations of default.   Instead, she presents the same argument that she did in her Motion to Dismiss, which has been denied by the court.   That argument claims that the plaintiff lacks standing based on a lack of assignment of the Mortgage.   The plaintiff has presented evidence that it was the holder of the Note at the time of the commencement of this action by virtue of said Note being endorsed in blank.   The plaintiff has also presented evidence of the servicing transfer showing that effective June 1, 2013, Select Portfolio Servicing, Inc. became the loan servicer for this loan.

In Connecticut foreclosure cases the plaintiff presents the court with the original Note and Mortgage, or certified copy of the mortgage at the time of judgment.   The best evidence of ownership of the loan documents are the documents themselves and the endorsements thereon.  Brookfield v. Candlewood Shores Estates, Inc., 201 Conn. 1, 10–11, 513 A.2d 1218 (1986).  “[W]hen the issue of title or ownership is directly involved, the proper way to prove title is by production of the original documents or certified copies from the record.”  (Internal quotation marks omitted.)  Socha v. Bordeau, 277 Conn. 579, 587, 893 A.2d 422 (2006).   In addition, the Connecticut Uniform Commercial Code, Connecticut General Statutes § 42a–3–301 provides:

“Person entitled to enforce” an instrument means (i) the holder of the instrument, (ii) a nonholder in possession of the instrument who has the rights of a holder, or (iii) a person not in possession of the instrument who is entitled to enforce the instrument pursuant to section 42a–3–309 or 42a–3–418(d).  A person may be a person entitled to enforce the instrument even though the person is not the owner of the instrument or is in wrongful possession of the instrument.

Connecticut General Statutes § 42a–3–203 provides:

Transfer of an instrument, whether or not the transfer is a negotiation, vests in the transferee any right of the transferor to enforce the instrument, including any right as holder in due course ․

Connecticut General Statutes § 42a–3–201(b) states, in pertinent part, “If an instrument is payable to bearer, it may be negotiated by transfer of possession alone.”   Section 42a–1–201(b) provides:

(21) “Holder” means:

(A) The person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession;

(B) The person in possession of a negotiable tangible document of title if the goods are deliverable either to bearer or to the order of the person in possession;  or

(C) The person in control of a negotiable electronic document of title.

Connecticut General Statutes § 42a–3–109 defines “bearer paper” as an instrument payable to an identified party that may become payable to bearer if endorse in blank pursuant to Section 42a–3–205(b).  Connecticut General Statutes § 42a–3–205 provides that when the instrument is endorsed in blank it becomes payable to bearer and “may be negotiated by transfer of possession alone until specially endorsed.”   Here the Note is endorsed directly to the plaintiff.   As such the plaintiff is the proper party to prosecute this foreclosure action.

“[Connecticut] General Statutes § 49–17 permits the holder of a negotiable instrument that is secured by a mortgage to foreclose on the mortgage even when the mortgage has not yet been assigned to him.”  Bankers Trust Company of California, N.A. v. Vaneck, 95 Conn.App. 390, 391, 899 A.2d 41, cert. denied, 279 Conn. 908, 901 A.2d 1225 (2006);  Fleet National Bank v. Nazareth, 75 Conn.App. 791, 795, 818 A.2d 69 (2003).   The court in Bankers Trust ruled “[t]he statute [§ 49–17] codifies the common-law principle of long standing the ‘the mortgage follows the note,’ pursuant to which the rightful owner of the note has the right to enforce the mortgage.”  Id. “The holder of a promissory note, whether that holder be a holder in due course or otherwise, has the benefit of the security to secure that note whether actually assigned or not.”  Connecticut National Bank v. Marland, 45 Conn.App. 352, 696 A.2d 374, cert. denied, 243 Conn. 907, 701 A.2d 328 (1997).

The court in SKW Real Estate Ltd. Partnership v. Gallicchio, 49 Conn.App. 563, 570, 716 A.2d 903 (1998), stated that “[t]he possession by the bearer of a note endorsed 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 was for the defendant to set up and prove facts which limit or change the plaintiff's rights.”  (Citations omitted.)  Garris v. Calchman, 118 Conn. 112, 115, 170 A. 789 (1934).

In affirming the foreclosure judgment of the plaintiff, holder of the mortgage note endorsed in blank, the court in Chase Home Finance, LLC v. Fequiere, 119 Conn.App. 570, 578, 989 A.2d 606 (2010), stated “[t]he defendant has failed to present even a scintilla of evidence demonstrating that the plaintiff was not in possession of the promissory note or contradicting its status as a bona fide holder of the note.”   Similarly, in HSBC v. Gavin, 129 Conn.App. 707, 22 A.3d 647 (2011) the court affirmed the summary judgment in favor of the plaintiff based upon the plaintiff's affidavit stating that it was the holder of the note prior to the commencement of the foreclosure and appending a copy of the note which was endorsed in blank.   In HSBC as in the present case, the defendant has failed to present any evidence to demonstrate the existence of a genuine issue of material fact.

The defendant's initial Objection to the summary judgment does not address her special defenses or her counterclaims.   Her supplemental objection mentions several Superior Court cases where special defenses similar to those she has alleged were not stricken.   However, the court is not considering a motion to strike.   In opposition to a motion for summary judgment, the defendant must present some concrete evidence to support her defenses and counterclaims.   Pion v. Southern New England Telephone Co., 44 Conn.App. 657, 663, 691 A.2d 1107 (1997).   She has failed to do so.

The plaintiff has presented verified copies of the signed Note, signed recorded Mortgage, recorded assignments, default letter and an affidavit as to the date of default, that the notice of default was sent in accordance with the loan instruments and the amount owed by the defendant.   The defendant has presented no evidence to support any of her arguments.   There are no issues of material fact and the plaintiff is entitled to judgment of foreclosure.   Judgment as to liability enters in favor of the plaintiff against the defendants on the complaint and judgment enters in favor of the plaintiff (counterclaim defendant) on the counterclaims.

By the court,

Aurigemma, J.

Aurigemma, Julia L., J.