Nationstar Mortgage v. Donna Davis et al. (2015)

MEMORANDUM OF DECISION

The plaintiff, Nationstar Mortgage (plaintiff) moves for summary judgment as to the claims asserted in its complaint and as against the special defense raised by the defendant Donna Davis (defendant).

In support of its motion the plaintiff has filed the affidavit of Tracy Armstrong.   This affidavit and the annexed exhibits establish the plaintiff's prima facie case for the requested relief of foreclosure.   On November 22, 2002 the defendant signed a promissory note in favor Homecomings Financial Network, Inc. Payment of the note was secured by property owned by the defendant located at 206 Green Haven Road, Stonington, Connecticut.   The note and mortgage were subsequently assigned to the plaintiff.   The Armstrong affidavit further supports a finding that the defendant failed to meet her agreed obligations under the terms of the note and mortgage and that the plaintiff provided the defendant with notice of default.   Finally the affidavit asserts continued ownership by the plaintiff of the instruments they seek to foreclose and that there is a balance due as of the date of default in the amount of $170,077.66 plus accruing interest.

The defendant challenges the plaintiff's right to seek foreclosure in the special defense she has filed.   In this defense she alleges “(t)he making of the note and mortgage was the product of misrepresentation and fraud on the part of the Plaintiff's assignor's agent.   Which agent induced the defendant, Donna Davis, recently divorced and vulnerable, to enter into a no documentation unnecessary refinance of her existing mortgage with a new significantly higher mortgage note and deed which was considerable (sic) beyond her means, thereby substantially increasing her monthly mortgage payments to over $1,600. per month despite the fact that she had only $450. per month I(sic) documented gross income, thereby destining (sic) her to fall behind in her mortgage payments and face ultimate foreclosure.   Had the true facts of her situation been known by the Defendant at the time, the mortgage would have not been entered into nor would the note have been signed.”

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.)   Provence 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 opposition to this motion for summary judgment, the defendant Donna Davis has filed her affidavit.   This affidavits mirrors the language of the special defense.

The question before the court is whether the defendant's affidavit contains sufficient evidentiary material so would raise genuine issues of material facts that would preclude the granting of the motion for summary judgment.   A parsing of the language of the affidavit reveals that it is primarily conclusory in nature.   It asserts “I believe that I have a valid Special Defense” but does not support that belief with sufficient facts.   The affidavit concludes with the sentence “Had the real truth been known to me (Donna Davis) at the time, I would have never signed the promissory note and the mortgage.”   The affidavit asserts that an agent of the plaintiff's assignor “induced me to enter into an unnecessary refinance of an existing mortgage substantially increasing my monthly payments to over $1,600 per month despite the fact that I then made only $450. per week documented gross income ․” There is no description of the conduct of the agent or whether the vulnerability of the defendant was apparent.   What representations were false?   How was the plaintiff induced to rely upon those representations?   This affidavits seems to rely upon facts that were known to the defendant—her recent divorce, her documented income, and the amount of the new monthly payment under the note.   The bald assertion of misrepresentation and fraud in the inducement does not establish the factual foundation for such a claim.

C.

Based upon the affidavit submitted by the plaintiff in this action, the court finds that there is no genuine dispute of any material fact relating to the making, existence and the holding of the note and mortgage that are the subject of this foreclosure action.   The plaintiffs have demonstrated a prima facie case for the purposes of this motion to entitle them to a summary judgment as to liability only.

The “affidavit” submitted by the defendant is insufficient to raise any genuine issues of material fact and to raise any barriers to the finding of liability in this case.

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

Cosgrove, J.

Cosgrove, Emmet L., J.