Putnam Bank v. LLC (2014)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT

The plaintiff, Putnam Bank, moves for summary judgment against the defendant, Horizon Asset Management, LLC, (hereinafter Horizon) a subsequent encumbrancer on the property securing the plaintiff's debt.   Horizon opposes the granting of this motion and asserts that it has an interest in the property that would be materially affected if the plaintiff is allowed to foreclose;  that it contests the enforceability of the plaintiff's claims and the amount of the debt claimed by the plaintiff.   Defaults against all other defendants have been entered by the court.  (See docket entries 109.5, 125 and 135.01.)

Previously, this court granted a motion to strike the special defense filed by the Horizon.   This special defense stated “the claims to be asserted by the plaintiff in regard to its debt are unconscionable or unenforceable, are against public policy and are otherwise barred in whole or in part.”   In granting the motion to strike, the court relied on the case of Connecticut Bank & Trust Co. v. Carriage Lane Associates, 219 Conn. 772 (1991), which our Supreme Court defined the duties owed by a senior mortgagee to a junior mortgagee.   This court held “the special defense filed by the defendant is a string of legal conclusions that do not allege any express agreement between the plaintiff and the defendant nor any acts or conduct of the plaintiff that would support a claim of bad faith.”   Horizon did not replead and thus, the only pleading asserting its position before the court is its answer.

In its answer, Horizon, leaves the plaintiff to its proof as to the claimed note mortgage and default of Delmac.   Horizon admits the allegations of the complaint as they relate to its claims including that its mortgages that are subsequent in right and subordinate to the plaintiff's mortgage.   As to the remaining allegations of the complaint which relate to other parties claiming an interest in the property defendant, Horizon left the plaintiff to its proof.   Horizon admits that defendant, Delmac, LLC, is the record owner of the premises and is in possession of the premises.

A.

“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.”  (Internal quotation marks omitted.)  Provencher v. Enfield, 284 Conn. 772, 790–91, 936 A.2d 625 (2007).  “In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist.”  Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).  “[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).  “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.)  Hertz Corp. v. Federal Ins. Co., 245 Conn. 374, 381, 713 A.2d 820 (1998).

B.

In support of this motion for summary judgment, the plaintiff has filed the affidavit of John F. Lafountain, its Senior Vice President.   This affidavit supports the claims of the plaintiff and establishes a prima facie case that it is entitled to a judgment of foreclosure.

Horizon's opposition to this motion, is not supported by any evidentiary material that would raise a genuine issue of material fact as to the plaintiff entitlement to a judgment of foreclosure.

The plaintiff's motion for summary judgment is granted as to liability only.

Cosgrove, J.

Cosgrove, Emmet L., J.