GSAA 2006 11 2006 11 v. Elissa Speer (2015)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT

In this action, the plaintiff, Deutsche Bank National Trust Company as Trustee for GSAA Home Equity Trust, 2006–11 Asset Backed Certificates, Series 2006–11, has moved for summary judgment on its complaint and the counterclaims of the defendant, Elissa Speer.   It supports its motion with affidavits and other evidentiary material including providing the court with the opportunity to examine the original note and mortgage that it holds.

“[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;” (citations omitted) GMAC Mortgage, LLC v. Ford, 144 Conn.App. 165, 176–77, 73 A.3d 742 (2013);  which include:  “[ (1) ] that it is the owner of the note and mortgage [ (2) ] that the defendant mortgagor has defaulted on the note and [ (3) ] that any conditions precedent to foreclosure, as established by the note and mortgage, have been satisfied ․” Id., 176.

The standards that support and oppose a motion for summary judgment are set out in Practice Book § 17–46.   It provides that “affidavits shall set forth such facts as would be admissible in evidence and shall show affirmatively that the affiant is competent to testify to the matters stated therein.   Its sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto.”   Our Supreme Court has noted in numerous occasions that it is not enough for the opponent of a motion for summary judgment to merely assert the existence of a disputed issue.  Burns v. Hartford Hospital, 92 Conn. 451, 455 (1984).

“When [a note] is endorsed in blank, it becomes payable to bearer ․” Equity One, Inc. v. Shivers, 310 Conn. 119, 126 (2013).   When a note becomes payable to bearer “[t]he holder is the person ․ in possession of the [note.]”  (Internal quotation marks omitted.)  Id. “[O]nly a holder ․ is entitled to enforce the [note.]”  Id. “[A] holder of a note is presumed to be the owner of the debt, and unless the presumption is rebutted, may foreclose the mortgage under § 49–17 ․ The production of the note establishes [the plaintiff's] case prima facie against the makers and he may rest there ․ It [is] for the defendant to set up and prove the facts which limit or change the plaintiff's rights.”  (Internal quotation marks omitted.)  Equity One, Inc. v. Shivers, 310 Conn. 119, 135 (2013).

To meet its prima facie burden the plaintiff proffers an adjustable rate note, dated February 10, 2006, which designates Elissa Speer as the borrower and contains her signature.   The terms of the note expressly permit the lender, American Brokers Conduit, to transfer the note.   The note sets forth the borrower's promise to pay the note holder, i.e., whomever is entitled to receive payments under the note, principal and interest payments of a $126,700.00 loan in favor of the borrower.   Under the terms of the note, in the event that the borrower defaults on the obligation to make the required payments the note holder is authorized to make all sums owed by the borrower due immediately, subject to the condition that this accelerated, revised due date takes place at least 30 days after the borrower is provided written notice of these circumstances.

The plaintiff further submits a similarly signed and dated copy of a mortgage deed, referred therein as the security instrument.   The instrument, inter alia, transfers to the lender's nominee, i.e., Mortgage Electronic Registration Systems, Inc. (MERS) and to the successors and assigns of MERS, interests in a parcel of real property, namely 123 Talman Street, Norwich, Connecticut.   Said interest includes, inter alia, the right to foreclose on the property and sell the property upon the borrower's default with respect to its loan payments.

The plaintiff further submits a copy of an assignment of mortgage which assigns MERS' rights and interests under the security instrument to Deutsche Bank National Trust Company, not in its individual capacity, but solely as trustee on behalf of GSAA Home Equity Trust, 2006–11.   The assignment states an effective date of January 1, 2009 and was signed and executed on July 6, 2009.   Finally, the plaintiff submits a copy of a document affirming the assignment of mortgage, which simply declares that the prior assignment was valid according to its terms and remains as such at least up until the date of the affirmation, December 28, 2011.

This court was presented with the original version of the adjustable rate note both at the February 18, 2014 and October 6, 2014 short calendars where oral argument was heard with respect to the defendant's motion to dismiss (# 129) and the plaintiff's present motion for summary judgment (# 142), respectively.   For instance, at the short calendar on October 6, 2014, the following exchange occurred.  “[The plaintiff's counsel:] I have for the court's inspection ․ the original of the promissory note ․ [The Court:] Please just show the note;  the note is what I want to see ․ [The defendant's counsel:] I've seen the note, your honor ․ It appears to be the original note ․ [The plaintiff's counsel:] I showed [the note] to counsel prior to the call ․ [The Court:] So I don't think there's an issue about it.   You've got the original note here, and there's no dispute that its endorsed in blank.”

To lay the necessary evidentiary foundation for admitting these exhibits into the record on the motion for summary judgment the plaintiff has proffered a copy of an affidavit of Shilundra Lidell, a contract management coordinator employed by Ocwen Loan Servicing, LLC, a servicer for the plaintiff.   The affidavit, labeled Exhibit A by the plaintiff, is dated July 3, 2014, and therein it is averred, in relevant part, that based upon the affiant's personal knowledge of both the note and mortgage at issue in this case “[on February 10, 20006, Elissa Speer (“the Borrower”) owed American Brokers conduit $126,700.00 as evidenced by a promissory note [a] true and correct copy of [which] endorsed in blank is attached as Exhibit A–1 ․ Prior to commencement of this foreclosure action, the Plaintiff became and at all times since then has been the party entitled to collect the debt evidenced by the [n]ote [t]he unpaid balance of [which] is $163,244.52 plus interest from, late charges and collection costs have not been paid although due and payable ․ The [n]ote and the [m]ortgage are now in default by virtue of nonpayment of the installments of principal and interest due on May 1, 2011 and each and every month thereafter ․ To date ․ the Plaintiff has not received funds sufficient to reinstate or payoff the Borrower's mortgage loan account and the Plaintiff has not agreed ․ to waive default or acceleration.”

The court finds that the plaintiff has established a prima facie set of facts entitling it to prosecute this foreclosure action.

The court now turns to the defenses and counterclaim of the defendant Elissa Speer.   The operative pleading of the defendant in response to the plaintiff's complaint was the one filed on July 1, 2013 (# 127).¹  In it the defendant pleads, in relevant part, as follows:  The first special defense is labeled “unclean hands.”   The second special defense is labeled “collateral estoppel.”   The third special defense is labeled “plaintiff is not the holder in due course and lacks standing to file suit.”   The fourth special defense is labeled “prior pending action.”   The lone counterclaim is labeled “quiet title.”

The defendant, Elissa Speer, through her attorney, opposes this motion for summary judgment.   This opposition is voluminous in terms of pages but meager with regard to evidentiary value.   Many of the submissions are noncertified copies of purported pleadings or judgments in federal or other state court cases which have no applicability to the issues presented in the case at bar.   These are not evidentiary submissions.

The sole affidavit filed on behalf of the defendant, Elissa Speer, was not filed by Elissa Speer but by Sheri Speer.   These affidavits make unsupported assertions of service as a “custodian of the records” for Elissa Speer and the bald assertion that the material submitted are true and accurate.   They do not challenge the debt or the default.   This affidavit does not provide any foundation or competence for the evidential admissibility of the documents that are attached in opposition to the motion for summary judgment.   These submissions cannot reach the threshold of creating a genuine issue of material facts that would prevent the granting of this motion for summary judgment.

The counterclaims for quieting title put forward by the defendant do not properly respond to a foreclosure action.   Previously the court determined that the plaintiff had made a prima facie case entitling it to foreclose the mortgage that it holds on this property.   This interest is not a cloud on the title to the property but an encumbrance on the equitable title of the defendant.

The court has reviewed all of the paperwork submitted by the defendants in support of their opposition but has been unable to find any support for the defendant's position.   The court understands that it must look at the evidence in a light most favorable to the defendant before it can grant a motion for summary judgment.   There is no evidence favorable to the defendant's defenses or counterclaim.

Therefore, the motion for summary judgment is granted as to liability only.

Cosgrove, J.

FOOTNOTES

FN1. The defendant also moved, on October 3, 2014 (# 168), for the court to permit that “the Answer, Special Defenses and Counterclaim be amended based on new information,” to which the court ordered that:  “The defendant to is to identify the newly discovered evidence that should cause the court allow her to amend her previously filed responsive pleading ․ no. 127 [dated July 1, 2013] and to delay the court ruling upon the pending Motion for Summary Judgment.   The court will order hearing on the Motion to Amend No. 168 on Tuesday, February 17, 2015 at 11:30am.”   The defendant withdrew her motion to amend on February 13, 2015..  FN1. The defendant also moved, on October 3, 2014 (# 168), for the court to permit that “the Answer, Special Defenses and Counterclaim be amended based on new information,” to which the court ordered that:  “The defendant to is to identify the newly discovered evidence that should cause the court allow her to amend her previously filed responsive pleading ․ no. 127 [dated July 1, 2013] and to delay the court ruling upon the pending Motion for Summary Judgment.   The court will order hearing on the Motion to Amend No. 168 on Tuesday, February 17, 2015 at 11:30am.”   The defendant withdrew her motion to amend on February 13, 2015.

Cosgrove, Emmet L., J.