FSB v. Linda A. Pellechia (2014)

MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT (# 162), OBJECTION TO MOTION FOR SUMMARY JUDGMENT (# 261), MOTION TO COMPEL (# 264), and OBJECTION TO MOTION TO COMPEL (# 267)

Before the court is plaintiff's July 9, 2010, motion for summary judgment as to liability in an action seeking foreclosure of a mortgage.   Defendant objects.   Related to those pleadings are the named-defendant's motion to compel, and plaintiff's objection.

I. Legal Standards

Recently, in Marinos v. Poirot, 308 Conn. 706 (2013), at pages 711–12, the Supreme Court articulated how deliberations on a motion for summary judgment must proceed:

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.”   A party moving for summary judgment is held 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.  (Citations omitted.)

This court has utilized that process in its review of this motion so as to require of plaintiff a showing excluding any real doubt as to any issue of material fact as to its right to a judgment on the allegations of its complaint, and so as to require of defendant a showing establishing that her responsive allegations address material factual issues and are sufficient to show that such issues are genuinely disputed.

By her motion to compel, Linda Pellechia seeks a court order requiring plaintiff to produce for deposition a person named Erica Johnson–Seck, arguing that this person has information which will undercut the plaintiff's entire case.   This defendant urges the court to stay any proceedings on the motion for summary judgment until that deposition has been taken, and its revelations become available to her defense in this action.   The court will adjudicate this motion and plaintiff's objection to it in accordance with the rules of practice, especially those set forth in Chapter 13 of the Practice Book.

II. Plaintiff's Case in Chief

Since this motion seeks a judgment relative to the foreclosure of a mortgage, the court takes guidance from the recent Appellate Court decision in GMAC v. Ford, 144 Conn.App. 165 (2013), outlining the essential elements of such a proceeding:  “In order to establish a prima facie case in a mortgage foreclosure action, the plaintiff must prove by a preponderance of the evidence that it is the owner of the note and mortgage, that the defendant mortgagor has defaulted on the note and that any conditions precedent to foreclosure, as established by the note and mortgage, have been satisfied ․ Thus, a court may properly grant summary judgment as to liability in a foreclosure action if the complaint and supporting affidavits establish an undisputed prima facie case and the defendant fails to assert any legally sufficient special defense.”   144 Conn.App. 165, 176 (Citations omitted).

The complaint alleges that on October 12, 2006, Linda Pellechia owned real property in the town of Canterbury, Connecticut, and remains the owner at present;  the answer of this defendant admits those allegations.   On that date, plaintiff further alleges, she issued a promissory note in the principal amount of $347,900 to IndyMac Bank, F.S.B.;   her answer professes insufficient information to admit or deny this contention.

In addition, plaintiff claims that she secured the note by a mortgage encumbering her Canterbury property in favor of Mortgage Electronic Registration Systems, Inc. (“MERS”), as nominee for IndyMac Bank, F.S.B.;   that the note was subsequently assigned to IndyMac Federal Bank, F.S.B.;   that the note is in default;  and that the holder has accelerated the debt and notified her of the default and its potential consequences.   Pellechia denies all these assertions.   On June 9, 2009, the court (Potter, J.) granted plaintiff's motion to substitute OneWest Bank, F.S.B., as plaintiff in lieu of IndyMac, in recognition of its acquisition of the assets of IndyMac Federal Bank, an event which occurred after the complaint was filed.

Plaintiff addresses the disputed issues of fact by providing an affidavit dated June 19, 2010, executed by its Assistant Vice President, Brian Burnett.   The Burnett affidavit includes the following assertions:

1) That in his capacity as a bank officer, this affiant is personally familiar with and has personal knowledge of the plaintiff's books and records insofar as they relate to the account of this defendant;

2) That she executed a promissory note (Exhibit A to the affidavit) to IndyMac Bank, F.S.B. in the original principal amount of $347,900 on October 12, 2006;

3) That on that date, the defendant conveyed by mortgage deed (Exhibit B) an interest in the Canterbury property to Mortgage Electronic Registration Systems, Inc., as nominee for IndyMac Bank, F.S.B.

4) That IndyMac Bank, F.S.B., had endorsed the note in blank, making it bearer paper, prior to the commencement of this action;

5) That on July 12, 2008, IndyMac Bank, F.S.B., was renamed as IndyMac Federal Bank, F.S.B., and that on January 9, 2009, MERS executed an assignment of the Pellechia mortgage to IndyMac Federal Bank, F.S.B. (Exhibit C);

6) That IndyMac Federal Bank, F.S.B., failed, and its assets, including the Pellechia note, were acquired by OneWest Bank, F.S.B., the current plaintiff, which is the current owner and holder of the note and mortgage;

7) That Pellechia has failed to make monthly payments required by the note and is in default, that she has been duly notified of that fact, and that the holder has accelerated the debt, with an outstanding balance of $417,744.42 as of July 12, 2010, with interest and other charges continuing to accrue thereafter.

III. Defendant's Objection

The court is entitled to rely upon plaintiff's affidavit unless it is met with sufficient contrary factual assertions to call its representations into question;  RMS Residential Properties, LLC v. Miller, 303 Conn. 224 (2011);  Citimortgage, Inc. v. Coolbeth, 147 Conn.App. 183 (2013).  “The party opposing a motion for summary judgment must present evidence that demonstrates the existence of some disputed factual issue ․ The movant has the burden of showing the nonexistence of such issues but the evidence thus presented, if otherwise sufficient, is not rebutted by the bald statement that an issue of fact does exist ․ To oppose a motion for summary judgment successfully, the nonmovant must recite specific facts ․ which contradict those stated in the movant's affidavits and documents ․ The opposing party to a motion for summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue ․ The existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence.”  (Internal quotation marks omitted);  Deutsche Bank National Trust Co. v. Shivers, 136 Conn.App. 291, 295–96, cert. denied, 307 Conn. 938 (2012).

Defendant has not filed any affidavit addressed to the matters laid out by Burnett.   Instead, she proffers that the Johnson–Seck deposition will provide evidence that prove her defense.   That defense, in brief, is that plaintiff is not the holder of the 2006 mortgage and hence she has no liability to it.

A. Is Plaintiff's Motion Ripe for Adjudication?

The court will first address the motion to compel plaintiff to produce Erica Johnson–Seck as a witness.   The file reveals that this first became an issue in 2010.   On September 7 of that year, amidst other arguments in a request for extension of time to file an objection to the present motion, Pellechia asserted that she was in possession of a copy of a 2009 transcript in which Johnson–Seck had made admissions casting doubt upon the chain of title by which plaintiff claims to hold the mortgage in question.   Throughout the fall of that year, the record reveals numerous skirmishes over motions filed by defendant to have the court take judicial notice of certain matters, objections thereto, requests for reargument after rulings thereon, objections to the requests for reargument, etc.—but nothing more that directly focuses upon Johnson–Seck.

Her name next comes up in plaintiff's April 5, 2011 motion for a protective order (# 206) seeking to block Pellechia's efforts to take a deposition of Johnson–Seck.   On June 21, the court (Vachelli, J.) denied that motion.   Subsequently, on May 30, 2012, Judge Vachelli ordered that “the deposition of Ms. Johnson–Seck may be held at a mutually agreeable time.”   Later, on December 5, 2012, the court (Riley, J.) refined the prior orders so as to allow the deposition to be taken by means of a video transmission, as the proposed deponent apparently resides in Texas.   On February 19, 2013, the court (Calmar, J.) entered a scheduling order specifying that all depositions be completed by September 1, 2013.

When this motion for summary judgment first appeared on this court's calendar for argument on December 16, the defendant argued that consideration of the motion was premature in that plaintiff had frustrated her efforts to schedule the deposition.  “There's many things that have not been completed in this case and that should occur prior to [the hearing on the motion for summary judgment]” in the words of Pellechia's counsel.   On that date, she filed her motion for an order that plaintiff produce Ms. Johnson–Seck as a witness for a deposition.   Plaintiff argued to the contrary.   The court therefore continued both of these motions to a special hearing on January 23, 2014.

As exhibits for the January 23 hearing, defendant produced a ream of emails and letters between the parties as evidence that the failure to depose Johnson–Seck stemmed from plaintiff's roadblocks.   That conclusion is not obvious;  the correspondence reveals mutual continuances and delays.   Plaintiff added just one item to this sequence, literally the last document, which is a copy of a February 20, 2013 email from defense counsel to plaintiff's counsel.   In salient part, it reads:  “Please let us know where in Texas the deposition will take place so the travel arrangements can be looked into.   In addition, at this time, we are going to have to postpone the deposition ․ we need more time to consider our strategy as to getting the necessary documents” (emphasis added).

From February 20 until December 16, 2013, Pellechia made no effort known to this court to pin plaintiff down to a deposition date.   February 26, 2014, is the sixth anniversary of the return date in this action.   For over nine months, defendant did nothing to schedule what she calls critical discovery, in defiance of a scheduling order requiring all depositions to be taken by September 1. A situation of a similar character presented itself in Deutsche Bank National Trust v. Bertrand, 140 Conn.App. 646, cert dismissed, 309 Conn. 905 (2013), coincidentally involving the same defense attorney as appears for Pellechia here.   At the trial level, Bertrand failed to timely plead an answer and special defense, but argued, at a hearing on a motion for a judgment of strict foreclosure, that he should be afforded additional time to do so.   The appellate court upheld the trial court's observation that this request, in the context of the defendant's behavior in that case, was outrageous.   In this case, Pellechia's long-delayed attention to this detail indicates either indefensible inertia or strategic procrastination, neither of which is acceptable.   See, also, IndyMac Federal Bank, FSB v. Walsh, 310 Conn. 916 (2013) (denying defendant's petition for certification of appellate court's dismissal of late-filed appeal).

B. Do Defendant's Contentions Raise a Genuine Issue of Material Fact?

Moreover, it is unclear that the evidence sought from Ms. Johnson–Seck would be material anyway, for two reasons.   First, its purpose is to defeat plaintiff's claim to owning the Pellechia note and mortgage by the chain of title outlined in the Burnett affidavit.   Ms. Johnson–Seck's 2009 deposition was given in the case of IndyMac v. Machado, No. 202008 CA 037322XXXX MB A W (Fla.Cir.Ct. Palm Beach County), and on April 5, 2011, Pellechia filed a transcript of the entire deposition here as part of a 162–page objection to plaintiff's then-pending motion for a protective order.   Briefly, the deponent rather intemperately admitted to “robo-signing” some significant number of mortgage assignments, without appreciating their content or observing the formality of executing them before a notary.

A number of courts have been apprised of this testimony.   Those in Rhode Island;  see, Akalarian v. RBMG, Inc., 072513 RISUP (2013) or Payette v. Mortgage Electronic Registration Systems, 082211 RISUP (2011);  and in Massachusetts;  see, Laguer v. Onewest Bank, FSB, 022713 MASUP (2013), have held the implications of that testimony to be insufficient to overcome an unopposed affidavit of the lender's employee laying out the chain of title into that lender.   Several trial courts in New York state have ordered that Ms. Johnson–Seck prepare an affidavit in the case before them specifically laying out the steps of the assignment in that case, and that the proprieties were observed in that case;  see, IndyMac Fed. Bank, FSB v. Meisels, 100412 N.Y.Misc. (2012), and Presidential Assets, LLC v. Carrasquillo, 39 N.Y.Misc.3d 756 (2013).   This court has located no mortgage foreclosure case from any jurisdiction ultimately denying entry of a judgment of foreclosure on account of Johnson–Seck's disclosures in Machado.

In addition, Pellechia filed here on April 5, 2012 a motion for sanctions totaling 318 pages (including a second copy of the 2009 Johnson–Seck deposition).   Included within is a copy of a 65–page second amended complaint she filed on March 26, 2012, in the United States District Court for the District of Connecticut, captioned Pellechia v. One West Bank, FSB, 3:11–cv–1587.   The federal court complaint lays out, inter alia, the admissions attributed to Johnson–Seck in Florida, and accuses the defendant of violating the Connecticut Unfair Trade Practices Act, Gen Stats § 42–110a et seq., by having brought the very foreclosure proceeding pending before this court.   She sought, inter alia, an order declaring that OneWest should be judicially estopped from pursuing this case.   The federal court dismissed her complaint.

Ms. Johnson–Seck's name has come up in one other Connecticut superior court case, namely One West Bank v. Dzierzbinski, CV 09 6001141 S, Superior Court, Judicial District of Ansonia–Milford at Milford (2010;  Moran, J.T.R.).   There, she served as the affiant supporting a motion for summary judgment, which the court granted without discussion of the issues Pellechia raises here.

Assuming, arguendo, that some of IndyMac Bank's assignments are tainted by inadequate procedures—a premise admitted by Johnson–Seck, apparently, but not yet revealed to this court to have been established as a fact by any tribunal—this court still doubts that every mortgage IndyMac has assigned is therefore unenforceable.   The parties have not briefed issues of standing which have been considered by other courts in resolving cases of the same ilk, and this court will not determine the case on that basis;  it presents yet another hurdle Pellechia would have to surmount, even if she had properly framed and assiduously litigated her assertions raised here.

Secondly, plaintiff has a sufficient by-pass to the chain of title argument if it is actually the present holder of the Pellechia note.  Chase Home Finance, LLC v. Fequiere, 119 Conn.App. 570, cert. denied, 295 Conn. 922 (2010), instructs us, at page 576, that “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.”   At the argument before this court on January 23, plaintiff's counsel extended a document towards the bench and offered to hand up “the original note”;  defendant objected, and the court deferred an examination of that original instrument until the time of a hearing on the form and other details of a final judgment.   However, the court, at least for present purposes, is entitled to rely upon the representations of counsel that his client is the possessor of the note;  Equity One, Inc. v. Shivers, 310 Conn. 119 (2013).   Here, as in that case, there is no fact-based challenge to counsel's representation.

Nor is there any fact-based challenge to the chain of title route to plaintiff's standing to bring this action.   In the final analysis, the entirety of defendant's opposition to the present motion consists of her denials and “don't know” responses to the allegations of the complaint.   Here, as in Deutsche Bank Naional.   Trust Co. v. Shivers, supra, defendant's “bald statement that an issue of fact does exist” is insufficient to raise a genuine issue of material fact which will defeat the motion.

IV. Conclusion and Orders

There is no sound reason why the motion for summary judgment should be delayed to allow further discovery at this time.   The motion to compel is denied, and plaintiff's objection thereto is sustained.

The court also concludes that plaintiff has set forth a sufficient basis upon which to hold that defendant is liable to it upon the promissory note secured by its mortgage.   The motion for summary judgment is granted, and the objection thereto overruled.

When a hearing is held on the value of the mortgaged premises and the form and terms of a foreclosure judgment, the demands of each party (including subsequent encumbrancers) and other pertinent details can all be taken into account.

Boland, J.

Boland, John D., J.