E*Trade Bank v. Beagy Francois et al. (2014)

MEMORANDUM OF DECISION

The plaintiff in this mortgage foreclosure action, E*Trade Bank, moves for summary judgment on the issue of liability against the defendant, Deutsche Bank National Trust Company for Harborview Mortgage Loan Trust 2006–8.   The plaintiff contends that it is entitled to a judgment on the issue of liability as a matter of law because it has established a prima facie case, and Deutsche Bank's special defenses of equitable subrogation and unjust enrichment fail under the circumstances.   Deutsche Bank opposes the motion claiming that it has submitted evidence sufficient to show that there are material issues of fact to be resolved at trial.

In its amended complaint, the plaintiff alleges on February 9, 2006, the defendant, Beagy Francois, obtained an equity credit line with the plaintiff that had a maximum limit of $150,000.   The loan is secured by a mortgage on her property located at 329 Shelton Road, Trumbull, Connecticut.¹  In February 2012, the plaintiff commenced a foreclosure action against Francois.   In its amended complaint, the plaintiff additionally named the Town of Trumbull as claiming an tax interest prior in right, and BankUnited FSB and Deutsche Bank as subsequent encumbrancers based on a mortgage in the original principal amount of $645,000 dated March 4, 2006 and recorded in the Trumbull land records on March 20, 2006.   Francois originally granted the mortgage to BankUnited, and it was subsequently assigned to IndyMac Bank and then to Deutsche Bank, the present holder of the note and mortgage.²

Deutsche Bank filed an answer and two special defenses.   In its first defense, Deutsche Bank claims that the plaintiff's mortgage securing the equity credit line is subrogated to Deutsche Bank's mortgage.   More particularly, Deutsche Bank alleges that the mortgage that it holds was a refinance of a first mortgage from Francois to MERS as nominee for William Raveis Mortgage, LLC dated August 12, 2005 and recorded on August 17, 2005.   Although the refinanced mortgage was intended to be a first mortgage on the property, Deutsche Bank claims that its predecessor in interest, BankUnited, “was ignorant of the [p]laintiff's intervening lien on the ․ property” when it disbursed the proceeds and recorded its lien.   In its second special defense, Deutsche Bank contends that, under the circumstances, the plaintiff would be unjustly enriched unless Deutsche Bank's mortgage was given priority.

The plaintiff filed a motion for summary judgment as to Deutsche Bank. The plaintiff grounds its motion on the principle of “first in time, first in right.” ³  It is undisputed that the plaintiff's mortgage was recorded a few weeks prior to Deutsche Bank's mortgage, and the plaintiff contends that as “first in time” its mortgage is entitled to priority over Deutsche Bank's mortgage.

A supporting memorandum was filed by the plaintiff to which it appended the following exhibits:  four pages of the recorded mortgage deed securing the promissory note that the defendant executed in favor of BankUnited (Plaintiff's Exhibit F);  the recorded copy of an assignment of that mortgage to Deutsche Bank together with a recorded affidavit of facts relative to title of real estate pursuant to General Statutes § 47–12a (Plaintiff's Exhibit G);  Bank United's unsigned and undated closing instructions, which are stamped with a Deutsche Bank mark and numbered pages 119–23 (Plaintiff's Exhibit H);  two pages of a residential appraisal field review report for the Bank United closing, which are stamped with a Deutsche Bank mark and numbered pages 2–3 (Plaintiff's Exhibit I);  a March 16, 2006 HUD settlement statement for the Bank United loan, which is stamped with a Deutsche Bank mark and numbered pages 58–60 Plaintiff's (Exhibit J);  a preliminary title report dated December 5, 2005 for the Bank United loan, which is stamped with a Deutsche Bank mark and numbered pages 36–41 (Plaintiff's Exhibit K);  and a notice of right to cancel the Bank United loan that was signed by the defendant on March 4, 2006, which is stamped with a Deutsche Bank mark and numbered page 66 (Plaintiff's Exhibit L).

Deutsche Bank filed an objection to summary judgment that is accompanied by two affidavits.   The affidavit of Charles Boyle is supported by the following exhibits:  all twelve pages of the recorded mortgage deed securing the promissory note that Francois executed in favor of BankUnited (Boyle Exhibit A);  a recorded affidavit of facts relative to title of real estate pursuant to General Statutes § 47–12a (Boyle Exhibit B);  the recorded assignment of the BankUnited mortgage to Deutsche Bank (Boyle Exhibit C);  a borrower's estimated closing statement from the loan file, which is stamped with a Deutsche Bank mark (Boyle Exhibit D);  a truth in lending disclosure statement from the loan file, which is stamped with a Deutsche Bank mark (Boyle Exhibit E);  a payoff statement from the loan file, which is stamped with a Deutsche Bank mark (Boyle Exhibit F);  a preliminary title report dated December 5, 2005 from the loan file, which is stamped with a Deutsche Bank mark and numbered pages 36–42 (Boyle Exhibit G);  nine pages of a residential appraisal field review report from the loan file, which is stamped with a Deutsche Bank mark and numbered pages 44–52 (Boyle Exhibit H);  a uniform residential loan application from the loan file, which is stamped with a Deutsche Bank mark (Boyle Exhibit I);  an owner's affidavit and indemnification agreement from the loan file, which is stamped with a Deutsche Bank mark (Boyle Exhibit J);  a March 16, 2006 HUD settlement statement for the Bank United loan which is stamped with a Deutsche Bank mark and numbered pages 58–60 (Boyle Exhibit K);  Bank United's signed closing instructions dated March 7, 2006 from the loan file which are stamped with a Deutsche Bank mark and numbered pages 245–49 (Boyle Exhibit L);  and the final title policy from the loan file, which is stamped with a Deutsche Bank mark (Boyle Exhibit M).

The affidavit of Rowena Moffett is supported by the following exhibits:  the plaintiff's answers and objections to interrogatories and requests for production (Moffett Exhibit A);  the plaintiff's facsimile response to discovery requests (Moffett Exhibit B);  an excerpt from a history data inquiry produced by the plaintiff (Moffett Exhibit C);  communications between Francois and the plaintiff produced by the plaintiff (Moffett Exhibit D);  a broker price opinion produced by the plaintiff (Moffett Exhibit E);  and a letter from a title company declining coverage (Moffett Exhibit F).

The evidence submitted by Deutsche Bank in opposition to summary judgment included the following facts relevant to the court's determination of the motion.   As part of the refinance of the first mortgage with BankUnited, the borrower, Francois, submitted an updated loan application on which she disclosed the first mortgage with MERS, Inc., as nominee for William Raveis Mortgage, LLC, but failed to disclose the plaintiff's equity credit loan.   Francois also signed an Owner's Affidavit and Indemnification Agreement essentially stating that the first mortgage held by Raveis was the only mortgage on the property.⁴  Francois began the refinance process in December 2005, and, at that time, BankUnited obtained a preliminary title report and commitment for title insurance that did not show the plaintiff's equity loan as transaction did not take place until two months later.   BankUnited also estimated the fair market value of the property to be $850,000 as of December 21, 2005.   At the time that Francois was approved for the $150,000 equity credit line, the Raveis mortgage was recorded on the land records.   The Raveis mortgage secured a loan for $636,650, and BankUnited's refinance of that loan was in the principal amount of $645,000.⁵

“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 ․”A mortgagee that seeks summary judgment in a foreclosure action has the evidentiary burden of showing that there is no genuine issue of material fact as to any of the prima facie elements, including that it is the owner of the debt.   Appellate courts in this state have held that that burden is satisfied when the mortgagee includes in its submissions to the court a sworn affidavit averring that the mortgagee is the holder of the promissory note in question at the time it commenced the action.”  (Citations omitted;  internal quotation marks omitted.)  GMAC Mortgage v. Ford, 144 Conn.App. 165, 176–77, 73 A.3d 742 (2013).

“When a complaint and supporting affidavits establish an undisputed prima facie case for a foreclosure action, a court must only determine whether [a] special defense is legally sufficient before granting summary judgment ․ Nevertheless, the opposing party only needs to demonstrate the applicability of one legally sufficient special defense in order to defeat a motion for summary judgment ․ [A movant's] motion for summary judgment should be denied when any defense presents significant fact issues that should be tried.”  (Citations omitted;  internal quotation marks omitted.)   US Bank v. Bachelder, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV–09–66003388 (August 20, 2012, Martin, J.);   See Union Trust Company v. Jackson, 42 Conn.App. 413, 417, 679 A.2d 421 (1996) (“The plaintiff claims that a summary judgment is proper because all of the special defenses are legally insufficient.   Only one of the defendants' defenses needs to be valid in order to overcome the motion for summary judgment.  [S]ince a single valid defense may defeat recovery, claimant's motion for summary judgment should be denied when any defense presents significant fact issues that should be tried.”   (Internal quotation marks omitted.))

It is undisputed that the plaintiff has established a prima facie case for a mortgage foreclosure.   Consequently, the determinative issue relative to the plaintiff's summary judgment motion is whether Deutsche Bank has a valid special defense to the action;  that is, whether Deutsche Bank has raised material issues of fact to be resolved by the trier of fact in support of its special defenses alleging equitable subrogation and unjust enrichment.

The court will first address Deutsche Bank's special defense of equitable subrogation.  “One of the most common mistakes connected with releases of mortgages is when the mortgage is renewed and the prior lien released in ignorance of intervening rights.   Ignorance in such a case is regarded in equity as equivalent to a mistake, and relief will be granted when there is no other element of estoppel, and when the party seeking relief has not delayed action․  When a new mortgage is substituted in ignorance of an intervening lien, the mortgage released through mistake may be restored in equity and given its original priority as a lien.

“We have upheld the power of a court of equity to grant relief from the consequences of an innocent mistake although the mistake was not unmixed with negligence ․ and although it was a mistake of law ․ where the failure to do so would allow one to enrich himself unjustly at the expense of another.”   (Citations omitted;  internal quotation marks omitted.)  Lomas & Nettleton Co. v. Isacs, 101 Conn. 614, 620–21, 127 A. 6 (1924).   See also Home Owners' Loan Corp. v. Sears, Roebuck & Co., 123 Conn. 232, 237, 193 A. 769 (1937) (“In numerous cases it has been held that one who advances money to discharge a prior lien on real or personal property and takes a new mortgage as security is entitled to be subrogated to the rights under the prior lien against the holder of an intervening lien of which he was ignorant”);  Connecticut National Bank v. Chapman, 153 Conn. 393, 398, 216 A.2d 814 (1966) (“We have upheld the power of a court of equity to grant relief from the consequences of an innocent mistake, although the mistake was not unmixed with negligence, when the failure to do so would allow one to enrich himself unjustly at the expense of another ․ Whether or not a plaintiff will be barred of remedy in equity against the effect of mistake because of his negligence depends to a large extent upon the circumstances of the particular case”).

The Connecticut National Bank case involves similar circumstances.   In Connecticut National Bank, the plaintiff, Connecticut National Bank (CNB), brought an action to reinstate and foreclose an alleged first mortgage.   The defendants, Robert and Teresa Nielsen, owners of the real property at issue, granted a first mortgage on their property to CNB's predecessor in interest to secure a note in the principal amount of $19,000.   They sold the property on July 8, 1960 to the defendants, Loring and Toy Chapman.   In order to purchase the property, the Chapmans agreed to assume the first mortgage, and took an additional loan from the Nielsens for $10,500 secured by a purchase money second mortgage on the property.   The purchase money mortgage was recorded on the land records and was subject to the first mortgage.  Id., 395.

The Chapmans refinanced their property in December 2011.   In furtherance thereof, the Chapmans signed a note for $19,500 in favor CNB, and granted the bank a mortgage on their property as security for the note.  Id.

“On December 11, 1961, the attorney closed this mortgage and delivered to the Chapmans a release of [the first mortgage].   The release of [the first] mortgage ․ and the recording of [the refinanced] mortgage ․ took place on the same day.   At the time of the closing the attorney, despite his title search, had no actual knowledge of the existence of the Nielsens' [recorded purchase money second] mortgage, and the plaintiff did not request him to obtain a release of it except as its search order requested him to close a first mortgage on the premises.   In connection with the closing, the attorney delivered to the plaintiff his certificate of title, which showed title to the premises in the Chapmans subject only to the new first mortgage for $19,500 and to a public utility easement.”  Id., 396.   The land records reflected, however, that the Connecticut National Bank refinanced mortgage, which the bank intended to be a first mortgage on the property, was subject to the purchase money mortgage granted by the Nielsens.

The foreclosure action ensued.   CNB first became aware of Nielsens' purchase money mortgage after the action was commenced, and amended its complaint to seek reinstatement of their mortgage to the position of a first mortgage and a foreclosure of the mortgage.  Id.

The following relevant facts are set forth in the Court's opinion.  “The Nielsens filed a counterclaim, and their mortgage was foreclosed.   The Chapmans having failed to redeem the mortgaged premises, the title thereto vested in the Nielsens by virtue of that judgment, ‘subject, however, to being divested by any further order or decree of this Court as might finally settle and determine, in favor of the plaintiff, the issues in this action between the plaintiff and the defendants Robert H. Nielsen and Teresa Nielsen in respect to the priorities of the mortgages held by each of said parties on the mortgaged premises.’  “ Id., 397.

Thereafter, the trial court rendered a judgment of foreclosure in favor of CNB, and found that the bank's mortgage had priority over the defendants Nielsens' purchase money mortgage.   An appeal ensued.  Id., 394.

On appeal, our Supreme Court considered that there was no evidence that CNB's mortgage was to be other than a first mortgage, and concluded that reinstating the priority of CNB's mortgage and granting the bank a judgment of foreclosure was not inequitable to the defendants Nielsens.   Moreover, the Court noted that the Nielsens would be unjustly enriched “through an unexpected and undeserved windfall” in the event Connecticut National Bank was denied the requested relief.  Id., 399.

There was no question that the closing attorney, assumedly as agent for the bank and despite having a title search, “had no actual knowledge of the existence of the Nielsens' mortgage,” and failed to obtain a release of the mortgage.  Id., 396.   The Court did not find that the trial court erred in reinstating the priority of CNB's mortgage and rendering a judgment of strict foreclosure in favor of the bank.   The Court recognized that the trial court granted to CNB the relief that it requested to avoid the bank's innocent, albeit negligent, mistake.   The trial court set aside the judgment for the sole purpose of setting a new law day.  Id., 400.

Here, in support of its motion for summary judgment, the plaintiff cites to Independence One Mortgage Corporation v. Katsaros, 43 Conn.App. 71, 681 A.2d 1005 (1996).   That case is distinguishable from the present action.

In Independence One Mortgage, the defendant, Larry Lainey, loaned $60,000 to the defendant John Eoanou, and secured the loan with a mortgage on Eoanou's real property.   The mortgage was recorded on November 5, 1990.   In 1991, Eoanou agreed to sell his property to the defendant, Thomas Katsaros.   As part of the transaction, Katsaros borrowed one million dollars from the plaintiff lender, which was secured by a mortgage on the property.   Also as part of the transaction, the multiple prior mortgages and liens were to be paid and released.  Id., 72.   For unknown reasons, Lainey's mortgage was not included in the list of lienholders to be paid out of the mortgage proceeds and released.   Id., n.2.

The plaintiff brought a foreclosure action and claimed that it had priority over the Lainey mortgage.  Id., 72–73.  “The trial court [Moran, J.] found that because the Lainey mortgage was properly recorded prior in time to the plaintiff's mortgage, the Lainey mortgage was entitled to priority over the plaintiff's mortgage.”  Id., 73.

The plaintiff appealed from the judgment of strict foreclosure rendered by the trial court.  Id., 71.   The Appellate Court affirmed the judgment.   The Court stated that “[w]hen considering whether the doctrine of equitable subrogation can apply in a given set of circumstances, a distinction must be made between intervening lien holders and existing lien holders.   In this case, Lainey [holder of a recorded first mortgage] was an existing lien holder, not an intervening lien holder.   Lainey had recorded a mortgage lien prior to any interest of the plaintiff in the subject property.   The doctrine of equitable subrogation is not intended as a means of circumventing the rights of existing lien holders who have properly recorded their mortgage instruments.”  (Emphasis in original.)  Id., 74.

The Court commented that the trial court “properly considered the equities of the parties.”  Id., 75.   The Court further noted that “[t]he trial court made no finding that the plaintiff was ignorant of the Lainey mortgage.   Absent such a finding, we will not rely on the plaintiff's assertion that it was ignorant of the Lainey mortgage.   We note that the Lainey mortgage was readily discoverable by a title search of the property.”   Id., 74 n.4.

The circumstances in Independence One Mortgage are significantly different from those in the present action.   That case involved a sale of property conditioned on obtaining releases from numerous prior lienholders with the expectation that a first mortgage in the amount of one million dollars would be recorded.   Unlike the present case, Independence One Mortgage neither concerned a refinanced mortgage intended to payoff and stand in the position of the original first mortgage, nor a mortgage securing an equity credit line that was approved by a lender with knowledge of a prior first mortgage and recorded subject to that mortgage.   Additionally, in Independence One, the trial court did not address the issue of whether the plaintiff lender was “ignorant” of the mortgage given by Eoanou to Lainey approximately seven months before Eoanou sold his property to Katsaros, and the Appellate Court did not address the issue of whether a recorded prior lien discoverable by a title search defeats a claim of equitable subrogation, regardless of ignorance or negligence.

The case Equicredit Corp. of Connecticut v. Kasper, 122 Conn.App. 94, 996 A.2d 1243, cert. denied, 298 Conn. 916 (2010), cited by the plaintiff in support of its motion, is also distinguishable from the present action.   In that action, the plaintiff brought an action seeking a declaratory judgment claiming that under the doctrine of equitable subrogation the defendants' mortgage was subordinated to the plaintiff's second mortgage on the subject property.  Id., 96.   The opinion sets forth the relevant facts, which were undisputed.

“On April 10, 1996, the defendants sold the property located at 116 Orchard Hill Road in Pomfret to John Carpenter.   Carpenter financed the purchase of the property with a mortgage given to the plaintiff to secure a $243,750 loan (plaintiff's first mortgage).   The plaintiff's first mortgage was duly recorded on December 26, 1996.   On March 10, 1997, Carpenter granted the defendants a mortgage to secure a $93,000 loan (defendants' mortgage).   The defendants' mortgage was duly recorded on March 11, 1997.   On September 16, 1998, Carpenter granted the plaintiff another mortgage to secure a $265,000 loan (plaintiff's second mortgage).   The plaintiff's second mortgage was duly recorded on the same day.   The proceeds of the plaintiff's $265,000 loan were used to pay off and release the plaintiff's first mortgage.   This left the defendants' mortgage in the first priority position and the plaintiff's second mortgage in the second priority position.”  Id., 95–96.

The plaintiff moved for summary judgment on its declaratory judgment complaint in which it sought equitable subrogation, which was denied.   The defendants' motion for summary judgment was granted.  Id., 96.   The rationale for the court's action on both motions was that the plaintiff could not prevail on its claim of equitable subrogation because it had constructive knowledge of the defendant's first lien and was not ignorant of it, there was no evidence of any misconduct by the defendants, and there was no windfall to the defendants.   Id., 96.

The Appellate Court affirmed the judgment of the trial court.  Id., 99.   The court commented that the case did not require “an equitable solution.”   Id., 98.  “There was no evidence that the defendants ever intended or agreed to be subordinated to a new encumbrance on the property, and the defendants did not receive an undue advantage as the result of the plaintiff's mistake.   Under the circumstances, to subordinate the defendants' mortgage to the plaintiff's mortgage would be to burden the defendants with the consequences of the plaintiff's mistake, a mistake in which the defendants played no part.   The court found that equity did not require such a result, and we conclude that the court did not abuse its discretion.”  Id., 98–99.

In seeking equitable subrogation, the plaintiff maintained that the proceeds of its second mortgage were intended to pay off all prior encumbrances on the property;  that is, the plaintiff's first mortgage and the defendant's mortgage.  Id., 96.   The Appellate Court noted, however, that the plaintiff's claim was questionable because the proceeds of the plaintiff's second mortgage were only enough to pay off its first mortgage, and not enough to satisfy the defendants' mortgage.   Id., 7–98 n.3.

The facts in Equicredit differ from those in the present action in that it was unclear in Equicredit whether the plaintiff's second mortgage was a refinance transaction that was intended to pay off its first mortgage and the defendants' mortgage, or was a new loan with junior priority.   Simple arithmetic showed that there were not enough loan proceeds to pay off both encumbrances, which would be required in a refinance transaction.   Here, the plaintiff's mortgage securing an equity credit line was subject to the Raveis mortgage, and Deutsche Bank contends that BankUnited's refinance of the Raveis mortgage for approximately the same principal amount evinces that BankUnited intended its mortgage to have priority over the plaintiff's mortgage.

The facts of the present action are also distinguishable from those in Deutsche Bank National Trust Company v. Delmastro, 133 Conn.App. 669, 38 A.3d 166 (2012), on which the plaintiff also relies.   In that case, the plaintiff brought an action to foreclose a second mortgage to which the intervening mortgagee had never been subject.   In the present action, the defendant Deutsche Bank's predecessor in interest had a recorded first mortgage, and the plaintiff approved the defendant Francois for an equity line of credit in the maximum amount of $150,000 secured by a mortgage on the property that was subject to the first mortgage.   It may be reasonably inferred that the plaintiff took the amount of the first mortgage into account in approving Francois's equity line of credit.   Additionally, the plaintiff knew that its mortgage securing the credit line was subject to the recorded first mortgage.

Under the circumstances of this case, the court concludes that Deutsche Bank has presented evidence of material issues of fact relating to its special defense of equitable subrogation that should be resolved at trial.   Those issues include whether Deutsche Bank was “innocently ignorant” of the plaintiff's recorded mortgage securing Francois's equity credit line, and reasonably expected to be in a first mortgage position.   The court, as the trier of fact, must further balance the equities of the parties.   Deutsche Bank claims that it would be inequitable to not subrogate the plaintiff's mortgage to the bank's mortgage because the plaintiff would receive an unjust windfall.   More pointedly, the plaintiff bargained for and received a second mortgage position behind Raveis' mortgage in the principal amount of $636,650.   BankUnited's refinance of the Raveis mortgage and recording of its “renewed” mortgage securing a $645,000 loan was approximately the exact same amount as the Raveis mortgage.   The refinance took place within about six months of the recording of the Raveis mortgage.   Arguably, the plaintiff would be in no worse position than it originally bargained for if its mortgage was subrogated to Deutsche Bank's mortgage.   There is an issue as to whether there is sufficient equity in the property to satisfy both the plaintiff's mortgage and Deutsche Bank's mortgage.   In considering the equities, the court has to evaluate and consider whether the plaintiff would stand in a better position than it bargained for if its mortgage was not subrogated to Deutsche Bank's mortgage.

Deutsche Bank has demonstrated the applicability of one legally sufficient special defense.⁶  In view of the foregoing, the plaintiff's motion for summary judgment (121.00) is denied.

TYMA, J.

FOOTNOTES

FN1. Francois originally granted the mortgage to MERS as nominee for E Loan, which was assigned to E Trade by assignment dated July 14, 2011..  FN1. Francois originally granted the mortgage to MERS as nominee for E Loan, which was assigned to E Trade by assignment dated July 14, 2011.

FN2. In its amended complaint, the plaintiff alleges that Deutsche Bank “may claim an interest ․ by virtue of an assignment from BankUnited however ․ the interim assignment from BankUnited ․ to IndyMac was never recorded making any assignment to [Deutsche Bank] ineffective.”   The plaintiff did not assert this claim in support of its summary judgment motion..  FN2. In its amended complaint, the plaintiff alleges that Deutsche Bank “may claim an interest ․ by virtue of an assignment from BankUnited however ․ the interim assignment from BankUnited ․ to IndyMac was never recorded making any assignment to [Deutsche Bank] ineffective.”   The plaintiff did not assert this claim in support of its summary judgment motion.

FN3. “The law relating to the priority of interests has its roots in early Connecticut jurisprudence.   A fundamental principle is that a mortgage that is recorded first is entitled to priority over subsequently recorded mortgages provided that every grantee has a reasonable time to get his deed recorded.”  Independence One Mortgage Corporation v. Katsaros, 43 Conn.App. 71, 73, 681 A.2d 1005 (1996)..  FN3. “The law relating to the priority of interests has its roots in early Connecticut jurisprudence.   A fundamental principle is that a mortgage that is recorded first is entitled to priority over subsequently recorded mortgages provided that every grantee has a reasonable time to get his deed recorded.”  Independence One Mortgage Corporation v. Katsaros, 43 Conn.App. 71, 73, 681 A.2d 1005 (1996).

FN4. There is no claim that Francois's omissions were intentional..  FN4. There is no claim that Francois's omissions were intentional.

FN5. Based on BankUnited's estimated fair market value, there was approximately $55,000 in equity in the property at the time of the closing of the equity credit line..  FN5. Based on BankUnited's estimated fair market value, there was approximately $55,000 in equity in the property at the time of the closing of the equity credit line.

FN6. Therefore, the court need not address the plaintiff's motion for summary judgment on Deutsche Bank's second special defense of unjust enrichment..  FN6. Therefore, the court need not address the plaintiff's motion for summary judgment on Deutsche Bank's second special defense of unjust enrichment.

Tyma, Theodore R., J.