Wells Fargo Bank, N.A. v. Christine L. Leggett (2014)

MEMORANDUM OF DECISION ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (# 105)

By complaint filed December 5, 2013 (complaint), the plaintiff, Wells Fargo Bank, N.A., has sued the defendant, Christine L. Leggett, who is representing herself in this case, for foreclosure of a mortgage on 74 Forge Hill Road in Voluntown, Connecticut (the property).¹  The defendant's answer neither admitted nor denied any of the allegations of the complaint, and alleged no special defense.   On June 25, 2014, the plaintiff moved for summary judgment as to liability of the defendant on the subject debt and the plaintiff's ownership of the mortgage sought to be foreclosed to secure the note from which the defendant's alleged debt to the plaintiff arises.   Although the hearing in the motion for summary judgment was continued for two weeks to allow the defendant to file an opposition to the motion, she did not by then do so and has not done so.   She did file an affidavit on August 4, 2014, the pertinent essence of which is that she is the owner of the property, that she has been unable to make mortgage payments on the property since 2012—and that it denies neither the debt, the mortgage, nor that they are owned by the plaintiff.

DISCUSSION

“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.”  (Internal quotation marks omitted.)  Patel v. Flexo Converters U.S.A., Inc., 309 Conn. 52, 56, 68 A.3d 1162 (2013).  “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).   The party seeking summary judgment has the burden of showing the nonexistence of any genuine issue of material fact.  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).   Once the movant has met that burden, however, the opposing party may defeat the motion only by presenting evidence that reveals a material, factual dispute.  Id., 11.   Statements that are merely conclusions are not considered evidence.   See Gupta v. New Britain General Hospital, 239 Conn. 574, 583, 687 A.2d 111 (1996).

Summary judgment is appropriate only when it is the sole conclusion a fair and reasonable person could reach based on the evidence.  Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).   Summary judgment requires evidence which a jury would not be at liberty to discredit or ignore.  Id. In ruling on the present motion, “the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist.”  (Internal quotation marks omitted.)  Maltas v. Maltas, 298 Conn. 354, 365, 2 A.3d 902 (2010).   In ruling on a motion for summary judgment, the court must view the facts in the light most favorable to the non-moving party.  Ramirez v. Health Net of the Northeast, Inc., supra, 285 Conn. 11.

“[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.”  (Internal quotation marks omitted.)  Wells Fargo Bank, N.A. v. Strong, 149 Conn.App. 384, 402, 89 A.3d 392, cert. denied, 312 Conn. 923, 94 A.3d 1202 (2014).  “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.”  (Internal quotation marks omitted.)  Id., 392.

The court finds from the unchallenged affidavit in support of the motion, and the exhibits attached to it,² that, on September 29, 2009, the defendant signed the subject promissory note in the amount of $130,494.00, payable to Norwich Commercial Group, Inc., doing business as Norcom Mortgage and its successors and assigns (the note);  that she also on that day signed and delivered an open-end mortgage deed to the property as security for the note;  that the note was assigned to the plaintiff on or before September 5, 2013;  that the plaintiff possesses the note;  that the defendant is in default under the note for nonpayment of installments due beginning February 1, 2013;  that the plaintiff has an option to accelerate the debt under the note and has exercised that option;  that the unpaid balance of the note is $124,277.97, plus interest from January 1, 2013, and other charges to be proven at the hearing on a motion for strict foreclosure or foreclosure by sale;  and that the debt and default under the note has not been paid or otherwise resolved by agreement of the parties.

For the foregoing reasons, the plaintiff's motion for summary judgment with respect to liability on the note in the principal sum of $124,277.97, plus interest from January 1, 2013, and other charges to be proven at the hearing on a motion for strict foreclosure or foreclosure by sale, is granted.

Cole–Chu, J.

FOOTNOTES

FN1. M & T Bank is a non-appearing, junior encumbrancer defendant..  FN1. M & T Bank is a non-appearing, junior encumbrancer defendant.

FN2. The affidavit does not follow what this court regards as the proper practice of identifying each of the exhibits, and authenticating the completeness and correctness of each.   It only explicitly identifies one of the exhibits, Exhibit A–1, a copy of the subject promissory note.   However, the affidavit implicitly attests to the identity and correctness of the exhibits.   Moreover, a prima facie case can be made by testimony alone.   See U.S. Bank, N.A. v. Foote, 151 Conn.App. 620, 635, 94 A.3d 1267 (2014) (“[A] mortgagee's burden at summary judgment 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” [internal quotation marks omitted] )..  FN2. The affidavit does not follow what this court regards as the proper practice of identifying each of the exhibits, and authenticating the completeness and correctness of each.   It only explicitly identifies one of the exhibits, Exhibit A–1, a copy of the subject promissory note.   However, the affidavit implicitly attests to the identity and correctness of the exhibits.   Moreover, a prima facie case can be made by testimony alone.   See U.S. Bank, N.A. v. Foote, 151 Conn.App. 620, 635, 94 A.3d 1267 (2014) (“[A] mortgagee's burden at summary judgment 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” [internal quotation marks omitted] ).

Cole–Chu, Leeland J., J.