CitiMortgage, Inc. v. Sherman C. Chapel et al. (2014)

MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT

The plaintiff, CitiMortgage, Inc., has moved for summary judgment as to liability only on the grounds that the defendants, Sherman C. Chapel and Constance D. Chapel, are in default under the terms of their note and mortgage.   The defendants argue that the plaintiff should not be able to foreclose because it failed to enter into a loan modification with the defendants.

Statement of Facts

The plaintiff has supported its motion with the affidavit of Jeanne Pezold, Business Operations Analyst employed by the plaintiff.   Appended to that affidavit are the following:  Mortgage Note;  Mortgage Deed;  Assignment of Mortgage;  Notice of Default.   The defendants have supported their opposition to the motion with affidavits in which they do not deny executing the Note and Mortgage Deed, or that they are in default under those documents.   Instead, they aver that in May 2010, they applied for a loan modification and supplied all documentation required by the plaintiff, they repeatedly called the plaintiff and could not get any information on their application.   The affidavits further aver that in December the plaintiff offered the defendants an oral three- to six-month moratorium, but instead of a moratorium, they received another modification application.   The defendants have not supplied any copies of any modification applications or any other writings from the plaintiff to them or from them to the plaintiff.

The facts established by the plaintiff are as follows.   On February 12, 2003, the defendants executed a note in favor of United Mortgage Finance Group, Inc. in the original principal amount of $141,500.00 (the “Note”).   On the same date to secure payment of the Note, defendants also executed a mortgage deed in favor of Mortgage Electronic Systems, Inc., as nominee for United Mortgage Finance Group, Inc. (The “Mortgage”), encumbering the property located at 118 Stevenstown Road, Westbrook, Connecticut (the “Property”).   The Mortgage was recorded on November 27, 2007 in volume 285 at page 321 of the Westbrook land records.   The Mortgage was thereafter assigned to the plaintiff by an assignment recorded on July 8, 2011 in volume 310 at page 407 of the Westbrook land records.

The Note requires that defendants make a principal and interest payment every month.   The defendants failed to make payments due and owing under the Note and Mortgage for September 1, 2010 and each month thereafter.   The plaintiff sent the defendants a Notice of Default dated December 28, 2010.   The Notice of Default informed the defendants of the default, the amounts necessary to cure the default and the date on which the cure must occur to avoid acceleration of the amount due under the Note. The defendants failed to cure the default.   The Notice of Default also advised the defendants of their rights under the Connecticut Emergency Mortgage Assistance Program (“EMAP”).   The court file indicates that the defendants did request admission into the Court Mortgage Mediation Program, one goal of which is to facilitate the modification of mortgages under foreclosure.   There were four mediation sessions scheduled, but the defendants failed to attend a single one and, therefore, the mediation program was terminated.

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.)  HO.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 plaintiff has presented evidence that defendants executed the Note and Mortgage, that the Note and Mortgage are in default, that the plaintiff is the owner of the Note and Mortgage and the conditions precedent to the foreclosure have been satisfied.   The defendants have presented no evidence contrary to the foregoing.   Instead, the defendants argue that “a genuine issue of material fact exists as to whether the defendants were misled by Citimortgage, Inc., prejudiced as a result and should therefore be equitably estopped from enforcing the foreclosure.”   Memorandum in Opposition to Summary Judgment, p. 2.

There are several problems with the defendants' argument.   First, the Note and Mortgage have no requirement that the plaintiff enter into a loan modification with the defendants.   See Southbridge Associates v. Garofalo, 53 Conn.App. 11, 16–17, 728 A.2d 1114, cert. denied, 249 Conn. 919, 733 A.2d 229 (1999).   The defendants do not argue, nor could they, that the plaintiff has violated any EMAP requirement concerning the negotiation of a modification because the defendants never attended any mediation sessions, sessions designed to facilitate modifications.   Second, the defendants cannot satisfy the element of an equitable estoppel claim.  “The doctrine of equitable estoppel is well established ․ [T]here are two essential elements to an estoppel:  the party must do or say something which is intended or calculated to induce another to believe in the existence of certain facts and to act upon that belief;  and the other party, influenced thereby, must actually change his position or do something to his injury which he otherwise would not have done.”  TD Bank, N.A. v. M.J. Holdings, LLC, 143 Conn.App. 322, 338 (2013).   The defendants have presented no evidence that they changed their position in reliance upon any mortgage modification offered or not offered by the plaintiff.

In the Second Count of the complaint the plaintiff seeks reformation of the property description contained in the Mortgage.   The Property is incorrectly referred to as 118 Stevenson Road, Westbrook, Connecticut when the correct address is 118 Stevenstown Road. The defendants have not addressed the reformation count in their opposition to summary judgment.

For the foregoing reasons, summary judgment enters in favor of the plaintiff as to liability only on the First Count of the complaint and on the Second Count for reformation.

Aurigemma, J.

Aurigemma, Julia L., J.