NA v. Sean G. Morris et al. (2010)

MEMORANDUM OF DECISION (REARGUMENT)

After further briefing and reargument on June 7, 2010, the defendant, Sean G. Morris, renews his objection to motion for summary judgment as to liability only filed by the plaintiff, Bank of America, N.A. The plaintiff has moved for summary judgment claiming that there are no material issues of fact and that summary judgment should enter in its favor.   See D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 432-34, 429 A.2d 908 (1980);  Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 105-06, 639 A.2d 507 (1994);  Gutpa v. New Britain General Hospital, 239 Conn. 574, 580-81, 687 A.2d 111 (1996).   Once the moving party has met its burden on summary judgment, the opposing party must raise a genuine issue of material fact justifying a trial.  Gianetti v. United Healthcare, 99 Conn.App. 136, 141, 912 A.2d 1093 (2007).

The defendant's reargument is multifaceted.   The first issue raised is that the plaintiff does not have title to the mortgaged property through any mortgage deed, and therefore, cannot proceed with a foreclosure action.   The defendant further argues that there was an improper assignment of the mortgage, and therefore, foreclosure is barred.   Despite these arguments, the defendant has failed to argue over General Statutes § 49-17, which provides that the owner of the promissory note, even when the note is signed in blank, has standing.   The court interprets the expressed and implied intent of § 49-17 to be clear and unequivocal that the owner of the note, regardless of status of mortgage deed, can proceed with a foreclosure.  SKW Real Estate Ltd. Partnership v. Gallicchio, 49 Conn.App. 563, 570, 716 A.2d 903, cert. denied, 247 Conn. 926, 719 A.2d 1169 (1998);  Chase Home Finance, LLC v. Fequiere, 119 Conn.App. 570, 576-78, 989 A.2d 606, cert. denied, 295 Conn. 922, 991 A.2d 564 (2010).   As a result, the defendant's argument is without merit.

The defendant also questions the probity of the plaintiff's affidavits concerning the admission of certain business records as well as loan documents done in the ordinary course of business.   The court finds that that the defendant's argument is not valid and that the basic standard for summary judgment concerning probative documentation has been met.

The other two issues raised by the defendant regarding condo fees and the defendant's inability to recall the terms within the mortgage and/or note are not relevant to the issue of the defendant's liability under the terms of the note.   Those issues may go to the amount of damages that are recoverable by the plaintiff, but they do not enter into the court's decision as to whether summary judgment as to liability only is appropriate here.

Therefore, based upon reargument and briefing by the parties, the court finds that the order of summary judgment dated May 14, 2010, should remain in effect as a valid finding and order of the court.   Accordingly the plaintiff's motion for summary judgment as to liability only is granted.

BY ORDER OF THE COURT,

Roche, J.

Roche, Vincent E., J.