Deutsche Bank National Trust Co. v. Suzanne Leaphart et al. (2014)

MEMORANDUM OF DECISION RE Motion for Summary Judgment, # 197

I

PROCEDURAL HISTORY AND FACTS

On February 6, 2013, the plaintiff, Deutsche Bank National Trust Company, filed a two-count amended complaint against the defendants, Suzanne B. Leaphart and Jerry V. Leaphart.¹  In the first count of its amended complaint, the plaintiff alleges the following facts.   On November 19, 2005, the defendants secured a promissory note wherein they promised to pay the plaintiff's predecessor in interest, New Century Mortgage Corporation (New Century), the sum of $700,000 with interest.   To secure this note, the defendants mortgaged to New Century the premises known as 48 Nod Road, located in Ridgefield.   Although the mortgage deed listed only Suzanne Leaphart as the “Borrower,” both the deed and the adjustable rate rider were initialed and signed by both defendants.   The note does not, however, contain either the defendant's initials or his signature.   This mortgage was subsequently assigned to the plaintiff on June 16, 2010.   The assignment listed both defendants as parties to the mortgage agreement.   The note and mortgage are currently in default and, as a result, the plaintiff has exercised its option to treat the entire balance immediately due and payable.   The second count of the complaint seeks reformation of the note and mortgage deed to include the defendant as a mortgagor on the ground that the omission of the defendant as a “Borrower” on the deed was done either by mutual or unilateral mistake.

On January 24, 2013, the defendants filed their answer, special defense and counterclaim.²  In their counterclaim, which incorporates the allegations contained in the answer and special defense, the defendants allege the following.   The defendant, who owned an undivided one-half interest in the property at the time the mortgage was executed, did not grant his interest to the plaintiff's predecessor in interest.   As such, in the event the court grants the foreclosure against Suzanne Leaphart, the defendant will be co-tenants with the plaintiff and therefore moves that the court partition the property.

On October 2, 2013, the plaintiff filed a motion for summary judgment as to the defendant's liability on the first count of its amended complaint on the ground that there is no genuine issue of material fact with regard to the validity of the note and mortgage.   The plaintiff also seeks summary judgment as to the defendants' counterclaim.   In support of its motion, the plaintiff submits copies of the following as evidence:  (1) portions of the defendant's deposition transcript;  (2) the mortgage deed;  (3) the adjustable rate rider;  (4) the signed and sworn affidavit of Nicole L. Smiley, the vice president of JPMorgan Chase Bank, N.A. (Chase Bank), the servicer of the subject loan;  (5) the adjustable rate note;  (6) the assignment of mortgage to the plaintiff;  and (7) correspondences sent to the defendants by Chase Bank, including the notice of default sent to Suzanne Leaphart and a letter sent to the defendant on September 24, 2010.   Plaintiff's Affidavit;  Plaintiff's Exhibits B, A, C, and D, respectively.   On November 20, 2013, the defendants filed a memorandum of law in opposition to the plaintiff's motion.   In support of their opposition, the defendants submit the full deposition transcript of the defendant.   Defendant's Exhibit A. The matter was heard at short calendar on November 25, 2013.

II

STATEMENT OF LAW

“Summary judgment is a method of resolving litigation when 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.”  (Internal quotation marks omitted.)  Grenier v. Commissioner of Transportation, 306 Conn. 523, 534, 51 A.3d 367 (2012).   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.”  “[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).  “[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way.”  (Internal quotation marks omitted.)  Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).  “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.”  Patel v. Flexo Converters U.S.A., Inc., 309 Conn. 52, 57, 68 A.3d 1162 (2013).

III

DISCUSSION

The plaintiff argues that summary judgment is proper because the only allegations before the court, that the plaintiff “has no rights to foreclose the interest of Defendant in the property,” is a question of law rather than an issue of fact.   The plaintiff further argues that, although the defendants claim, in their special defense, that the defendant did not grant the previous mortgagor, New Century, any interest to his one-half interest in the property, there remains no genuine issue of fact with regard to the validity of the plaintiff's right to foreclose because the defendant testified at his deposition that it was his initials and signature on the mortgage deed.   The plaintiff also contends that summary judgment is proper as to liability because the language contained in paragraph thirteen of the mortgage deed clearly states that any signatory of the instrument “will be mortgaging, granting and conveying his or her interest in the subject property.”   In addition, the plaintiff argues that because summary judgment is proper as to the first count of its complaint, it is also entitled to summary judgment as to the defendants' counterclaim.

In response, the defendants counter that summary judgment is improper because there remains a genuine issue of material fact as to whether the defendant mortgaged his one-half interest in the property.   The defendants further argue that, although there is no question that the defendant signed the mortgage deed, summary judgment is improper because there is a genuine issue of material fact as to whether the defendant intended to grant legal title to his interest in the property when he signed his name.   The defendants contend that the simple fact that a signature appears on the mortgage deed is, by itself, insufficient to conclude that the signing party “per se [intended] to mortgage a property.”   In addition, the defendants argue that the language of the mortgage instrument itself indicates that only the listed “Borrower” was mortgaging the property.

“A mortgage contract is a contract and as such is governed by contract law.”   Murphy v. Chase Mortgage Co., Superior Court, judicial district of New Haven, Docket No. CV–01–0450257–S (September 16, 2002, Arnold, J.);   see also Connecticut Housing Finance Authority v. John Fitch Court Associate Ltd. Partnership, 49 Conn.App. 142, 147, 713 A.2d 900, cert. denied, 247 Conn. 908, 719 A.2d 901 (1998).  “A contract is to be construed as a whole and all relevant provisions will be considered together.”  (Internal quotation marks omitted.)  Barnard v. Barnard, 214 Conn. 99, 109, 570 A.2d 690 (1990).   “Construction of a mortgage deed is governed by the same rules of interpretation that apply to written instruments or contracts generally ․” (Internal quotation marks omitted.)  Connecticut Housing Finance Authority v. John Fitch Court Associate Ltd. Partnership, supra, 49 Conn.App. 149.  “In giving meaning to the terms of a contract, we have said that a contract must be construed to effectuate the intent of the contracting parties.”  (Internal quotation marks omitted.)  Barnard v. Barnard, supra, 214 Conn. 109.  “The intention of the parties to a contract governs the determination of the parties' rights and obligations under the contract.”  Levine v. Advest, Inc., 244 Conn. 732, 745, 714 A.2d 649 (1998).  “In ascertaining intent, we consider not only the language used in the contract but also the circumstances surrounding the making of the contract, the motives of the parties and the purposes which they sought to accomplish.”  (Internal quotation marks omitted.)  Barnard v. Barnard, supra, 214 Conn. 109–10.  “The question is not what intention existed in the minds of the parties but what intention is expressed in the language used.”  Ives v. Willimantic, 121 Conn. 408, 411, 185 A. 427 (1936).  “Where the intention of the parties is clearly and unambiguously set forth, effect must be given to that intent ․ Contract language is unambiguous when it has a definite and precise meaning ․ concerning which there is no reasonable basis for a difference of opinion ․” (Citations omitted;  internal quotation marks omitted.)  Levine v. Advest, Inc., supra, 244 Conn. 746.  “When the language of a contract is ambiguous, the determination of the parties' intent is a question of fact ․” Hammond v. Hammond, 145 Conn.App. 607, 612, 76 A.3d 688 (2013).  “[A]ny ambiguity in a contract must emanate from the language used in the contract rather than from one party's subjective perception of the terms.”  (Internal quotation marks omitted.)  Nassra v. Nassra, 139 Conn.App. 661, 667, 56 A.3d 970 (2012).

The facts in Deutsche Bank National Trust Co. v. Perez, 146 Conn.App. 833, 80 A.3d 910 (2013), are somewhat similar to those presently before the court.   In Perez, the defendants appealed the trial court's decision to reform the subject mortgage deed to include the wife as a mortgagor.  Id., 835.   Although the subject property in Perez was jointly owned by husband and wife at the time the mortgage was executed, the wife's name was not listed as a “Borrower” and the deed was signed only by the husband.  Id., 836.   The plaintiff in Perez argued that the omission of the wife's name from the mortgage deed was a mutual mistake because “the parties to the mortgage had intended that the mortgage convey a 100 percent security interest in the subject property.”  Id. The Appellate Court reversed the trial court's reformation of the mortgage deed on the grounds that, to “bind [a party] and her interests to the terms of the mortgage” where that party is not listed as a “Borrower,” there must be “clear, substantial and convincing evidence” that the party not listed as a “Borrower” was in fact “a party to the mortgage transaction and intended to be a signatory to the mortgage.”  (Emphasis added.)  Id., 842.

In the present case, both parties point to various provisions within the mortgage deed to support their arguments as to whether summary judgment is proper.   Paragraph thirteen of the mortgage deed provides in relevant part:  “[A]ny Borrower who co-signs this Security Instrument but does not execute the Note (a “co-signer”):  (a) is co-signing this Security Instrument only to mortgage, grant and convey the co-signer's interest in the Property under the terms of this Security Instrument.”   Plaintiff's Exhibit B. Pursuant to the definition of “Borrower” provided in the mortgage deed, the “ ‘Borrower’ is SUZANNE B. LEAPHART” only.   Plaintiff's Exhibit B. The provisions that the parties point to illustrate that there is conflicting language contained in the deed as to whether the defendant did, in fact, grant legal title to his interest in the property;  thus, some ambiguity emanates from the language used in the contract.   Neither the definition section, nor any other section contained within the deed, contains language indicating that the defendant is intended to be a “Borrower.”   In addition, having raised the issue of his obligation on the loan to the plaintiff on the very basis he argues here in court, the plaintiff's own September 24, 2010 letter sent to the defendant in response provides:  “Our records reflect that Suzanne B. Leaphart is the borrower for this loan.   As you mentioned in your correspondence, since you did not sign the original promissory Note, you are not an obligor to the loan serviced by Chase [Bank].” Plaintiff's Exhibit D. The wording and conclusion of the letter is directly opposite to the position taken by the plaintiff in its motion.   As a result, the court finds that through the plaintiff's own words and acts there is a genuine issue of material fact as to the intention that is expressed in the language used by the contract.

In its motion, the plaintiff also moves for summary judgment on the defendants' counterclaim solely on the grounds that the counterclaim must fail if summary judgment is granted as to the liability of the defendant.   The plaintiff makes no other arguments as to why summary judgment on the counterclaim is proper.  “Mere assertions of fact ․ are insufficient to establish the existence of a material fact ․” (Internal quotation marks omitted.)  Marinos v. Poirot, 308 Conn. 706, 712, 66 A.3d 860 (2013).   Accordingly, the plaintiff's motion for summary judgment as to the defendants' counterclaim is also denied.

IV

CONCLUSION

For the foregoing reasons, the plaintiff's motion for summary judgment as to the defendant Jerry V. Leaphart is denied as to both the plaintiff's complaint and the defendant's counterclaim.

BY THE COURT

Shaban, J.

FOOTNOTES

FN1. Of the two named defendants, the current motion for summary judgment is geared solely towards Jerry Leaphart.   Therefore, he will be referred to as “the defendant.”   Suzanne Leaphart will be referred to by her name.   Both defendants will collectively be referred to as “the defendants.”.  FN1. Of the two named defendants, the current motion for summary judgment is geared solely towards Jerry Leaphart.   Therefore, he will be referred to as “the defendant.”   Suzanne Leaphart will be referred to by her name.   Both defendants will collectively be referred to as “the defendants.”

FN2. The January 24, 2013 pleading was filed prior to the February 6, 2013 amended complaint.   The defendants did not file a responsive pleading to the amended complaint.  Practice Book § 10–61 provides in relevant part:  “When any pleading is amended the adverse party may plead thereto ․ If the adverse party fails to plead further, pleadings already filed by the adverse party shall be regarded as applicable so far as possible to the amended pleadings.”   Therefore, the January 24, 2013 answer and counterclaim is the operative pleading..  FN2. The January 24, 2013 pleading was filed prior to the February 6, 2013 amended complaint.   The defendants did not file a responsive pleading to the amended complaint.  Practice Book § 10–61 provides in relevant part:  “When any pleading is amended the adverse party may plead thereto ․ If the adverse party fails to plead further, pleadings already filed by the adverse party shall be regarded as applicable so far as possible to the amended pleadings.”   Therefore, the January 24, 2013 answer and counterclaim is the operative pleading.

Shaban, Dan, J.