Taylor, Bean & Whitaker Mortgage Corp. v. Dahill A. Donofrio et al.

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Superior Court of Connecticut.

Taylor, Bean & Whitaker Mortgage Corp. v. Dahill A. Donofrio et al.

CV095021838S

    Decided: January 28, 2011

MEMORANDUM OF DECISION ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

FACTUAL BACKGROUND

The present foreclosure action was filed with the court on January 26, 2009.   The substitute plaintiff, the Bank of New York, as Trustee for TBW Mortgage-Backed Trust 2007-1 Mortgage Pass-Through Certificates, Series 2007-1 (the “Bank”), now moves for summary judgment as to liability against the defendant 4 Whip, LLC (“4 Whip”).   The following facts and procedural history are relevant to the resolution of this matter.

On March 30, 2009, the original plaintiff, Taylor, Bean and Whitaker Mortgage Corp. (“Taylor”), filed an amended single-count complaint, alleging the following facts.   On November 7, 2006, the defendant Dahill Donofrio issued a promissory note in the amount of $620,000, payable to Taylor, and secured the note by mortgaging the premises known as 4 Whipoorwill Lane in the town of Stratford to Mortgage Electronic Registration Systems, Inc. (“MERS”), as nominee for Taylor.   The mortgage deed was recorded in the Stratford land records.   Thereafter, Donofrio defaulted on his payments and Taylor elected to accelerate and foreclose the mortgage.   The mortgage was subsequently assigned from MERS to Taylor on January 15, 2009.   The assignment was recorded on the Stratford land records on February 9, 2009.   The present owner and occupier of the subject property is 4 Whip,1 and the unpaid balance under the subject note is $610,479.26.

4 Whip filed an answer and special defenses on April 22, 2010.   On May 3, 2010, this court, Hartmere, J., granted a motion substituting the Bank as the party plaintiff and, on July 6, 2010, the Bank filed the present motion for summary judgment.   4 Whip objected thereto on September 13, 2010.   The Bank filed a reply memorandum on September 23, 2010, and the matter was heard at the short calendar on November 1, 2010.

DISCUSSION

“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 ․ The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried.”  (Citations omitted.)  Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).  “However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury ․ the moving party for summary judgment is held to a strict standard ․ of demonstrating his entitlement to summary judgment.”  (Citation omitted;  internal quotation marks omitted.)   Kakadelis v. DeFabritis, 191 Conn. 276, 282, 464 A.2d 57 (1983).

“As the party moving for summary judgment, the [movant] is required to support its motion with supporting documentation, including affidavits.”  Heyman Associates No. 1 v. Ins. Co. of Pennsylvania, 231 Conn. 756, 796, 653 A.2d 122 (1995).   The well established rule is “that a summary judgment rendered upon the issue of liability only, without deciding damages, is not a final judgment from which an appeal lies.”  Balf Co. v. Spera Construction Co., 222 Conn. 211, 212, 608 A.2d 682 (1992).  “[J]udgment is not completed until damages have been assessed.”  Tureck v. George, 44 Conn.App. 154, 157, 687 A.2d 1309, cert. denied, 240 Conn. 914, 691 A.2d 1080 (1997).

The Bank moves for summary judgment as to liability on the ground that there is no genuine issue of material fact in the present matter and that it is entitled to judgment as a matter of law.   Specifically, the Bank argues that it has established a prima facie case for mortgage foreclosure and that 4 Whip's special defenses are legally insufficient.   In support of its motion, the Bank submits the following evidence:  (1) an affidavit of John Cook, a title searcher;  (2) an affidavit of Tonya Hopkins, an assistant secretary for American Home Mortgage Servicing, Inc., the Bank's loan servicer;  (3) a copy of the subject note and mortgage; 2  (4) copies of the mortgage assignments to Taylor and the Bank, respectively;  (5) a copy of a default notice letter addressed to Donofrio;  (6) an affidavit of David Borrino, an attorney for the Bank;  and (7) copies of United States postal service shipment tracking documentation.

4 Whip objects to the motion for summary judgment on the grounds that the Hopkins affidavit is defective and that material issues of fact exist precluding entry of judgment as to liability.   Specifically, 4 Whip argues that the Bank lacks standing to bring the present action because Taylor was not assigned the subject mortgage at the time the action was originally commenced.   4 Whip asserts that, by extension, this court lacks subject matter jurisdiction over the matter.

“The issue of standing implicates subject matter jurisdiction ․ [I]t is the burden of the party who seeks the exercise of jurisdiction in his favor ․ clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute.”  (Internal quotation marks omitted.)   May v. Coffey, 291 Conn. 106, 113, 967 A.2d 495 (2009).  “Once the question of subject matter jurisdiction has been raised cognizance of it must be taken and the matter passed upon before [the court] can move one further step in the cause;  as any movement is necessarily the exercise of jurisdiction.”   (Internal quotation marks omitted.)  Schaghticoke Tribal Nation v. Harrison, 264 Conn. 829, 839 n.6, 826 A.2d 1102 (2003).

“General Statutes § 49-17 permits the holder of a negotiable instrument that is secured by a mortgage to foreclose on the mortgage even when the mortgage has not yet been assigned to him ․ The statute codifies the common-law principle of long standing that ‘the mortgage follows the note,’ pursuant to which only the rightful owner of the note has the right to enforce the mortgage ․ Our legislature, by adopting § 49-17, has provide[d] an avenue for the holder of the note to foreclose on the property when the mortgage has not been assigned to him ․” (Citations omitted, internal quotation marks omitted.)  Chase Home Finance, LLC v. Fequiere, 119 Conn.App. 570, 576-77, 989 A.2d 606, cert. denied, 295 Conn. 922, 991 A.2d 564 (2010).

Donofrio issued a promissory note to Taylor on November 7, 2006.   Taylor was, thus, the holder of the note, endorsed in blank, at the time the present foreclosure action was commenced, by service of process on Donofrio, on January 19, 2010.3  The authenticated copy of the assignment submitted by the Bank in support of its motion for summary judgment establishes that MERS assigned the mortgage to Taylor on January 15, 2009 and that the assignment was recorded on the Stratford land records on February 9, 2009.   Thereafter, on March 18, 2010, both the note and mortgage were assigned to the Bank.

“In general, substitution is permitted ․ in cases of assignment.”  Joblin v. LaBow, 33 Conn.App. 365, 367, 635 A.2d 874 (1993), cert. denied, 229 Conn. 912, 642 A.2d 1207 (1994).4  The Bank was substituted as the party plaintiff in the present matter.   Based on the foregoing factors, the present foreclosure action is properly before the court.5  Issues of standing resolved, the court next turns to the Bank's argument that it is entitled to summary judgment as to liability.

“In a mortgage foreclosure action, to make out its prima facie case, the foreclosing party ha[s] to prove by a preponderance of the evidence that it was the owner of the note and mortgage and that [the mortgagee] had defaulted on the note.”  (Internal quotation marks omitted.)  Franklin Credit Management Corp. v. Nicholas, 73 Conn.App. 830, 838, 812 A.2d 51 (2002), cert. denied, 262 Conn. 937, 815 A.2d 163 (2003).  “Furthermore, the foreclosing party must demonstrate that all conditions precedent to foreclosure, as mandated by the note and mortgage, have been satisfied.”  Bank of New York v. Conway, 50 Conn.Sup. 189, 194, 916 A.2d 130 (2006), citing Bank of America, FSB v. Hanlon, 65 Conn.App. 577, 581, 783 A.2d 88 (2001).

In its objection to the motion for summary judgment, 4 Whip contends that the Hopkins affidavit is legally insufficient.   4 Whip argues that the affidavit does not contain an oath or attestation, nor was the affidavit properly notarized.   Nevertheless, the plaintiff has attached a properly authenticated affidavit to its reply memorandum, curing the alleged deficiencies in the original Hopkins affidavit.6

Moreover, the Bank has established that it is the holder of the subject note and mortgage through its evidentiary submissions.   Specifically, the Cook and Hopkins affidavits, along with the copies of the mortgage assignments, establish a chain of title transferring the mortgage and note to the Bank. In addition, the affidavits, copies of the note and deed, notice letter and postal service information establish that Donofrio defaulted on the note and that notice of such default was sent to Donofrio pursuant to the terms of the note and mortgage.

“When a complaint and supporting affidavits establish an undisputed prima facie case for a foreclosure action, a court must only determine whether [a] special defense is legally sufficient before granting summary judgment.”   LaSalle National Bank v. Shook, Superior Court, judicial district of New London, Docket No. CV 99 0549266 (July 13, 2000, Martin, J.), aff'd, 67 Conn.App. 93, 787 A.2d 32 (2001).  “The purpose of a special defense is to plead facts that are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action ․ A valid special defense at law to a foreclosure proceeding must be legally sufficient and address the making, validity or enforcement of the mortgage, the note or both.”  (Internal quotation marks omitted.)  Mortgage Electronic Registration Systems, Inc. v. Goduto, 110 Conn.App. 367, 369 n.2, 955 A.2d 544, cert. denied, 289 Conn. 956, 961 A.2d 420 (2008).  “Even if a special defense is a valid defense to a foreclosure action, and even if such a defense is sufficiently pled, the defendant still must produce sufficient evidence to support the defense in order to survive summary judgment.”  (Internal quotation marks omitted.)   IndyMac Bank, F.S.B. v. Khan, Superior Court, judicial district of Fairfield, Docket No. CV 08 5016789 (April 16, 2010, Hartmere, J.).

4 Whip has raised nine special defenses.   Specifically, 4 Whip alleges:  (1) failure to comply with the provisions of the note and deed;  (2) failure to comply with mandatory conditions precedent to the acceleration of the loan and commencement of suit;  (3) failure to provide the requisite notice pursuant to the terms of the note and deed;  (4) lack of standing;  (5) lack of subject matter jurisdiction;  (6) lack of personal jurisdiction;  (7) lack of subject matter jurisdiction “in that no properly constituted entity owns and holds the [n]ote and/or [m]ortgage in question;  and/or that any purported assignment or transfer thereof is ineffective and unenforceable;” (8) lack of subject matter jurisdiction “in that there is presently no proper party [p]laintiff before the [c]ourt, or if so, said party is not the legal owner of the [n]ote and [m]ortgage;” and (9) defectiveness, unenforceability and/or prematurity of the Bank's action as a result of the foregoing special defenses.

The Bank argues that 4 Whip's nine special defenses are legally insufficient.   In particular, the Bank argues that all of 4 Whip's special defenses must fail for lack of factual allegations.   Alternatively, the Bank attacks each special defense on an individual basis, arguing that 4 Whip's special defenses fail to preclude summary judgment.   Specifically, the Bank argues that its evidentiary submissions establish that it satisfied the conditions precedent of the note and mortgage, that the defendants were properly served with process and notice of default, and that the Bank is in possession of the note and mortgage.   The Bank further contends that the Superior Court properly maintains subject matter jurisdiction over the present matter.

4 Whip does not raise substantive arguments in its opposition with regard to its special defenses concerning personal jurisdiction or satisfaction of the terms of the mortgage and note.   Rather, the thrust of 4 Whip's objection concerns the subject matter jurisdiction of the court.

The first, second and third special defenses generally allege that the Bank failed to comply with the terms of the note and mortgage deed.   Nevertheless, the Hopkins affidavit, the copy of the notice letter, and the copies of the note and mortgage deed establish that the Bank complied with the terms of the subject instruments and that Donofrio was properly notified of his default.   4 Whip offers no specific factual assertions or evidence in support of its first three defenses.   As such, the first, second and third special defenses fail to raise issues of fact so as to preclude summary judgment as to liability.

The sixth special defense alleges a lack of personal jurisdiction and is again unsupported by any factual allegations.   Donofrio, 4 Whip and the defendant Connecticut Environmental, LLC, have all appeared in this matter and were properly served with process.  “Unless the issue of personal jurisdiction is raised by a timely motion to dismiss, any challenge to the court's personal jurisdiction over the defendants is lost.”  Rock Rimmon Grange # 142, Inc. v. The Bible Speaks Ministries, Inc., 92 Conn.App. 410, 416, 885 A.2d 768 (2005).   Thus, the sixth special defense does not create an issue of fact as to 4 Whip's liability on the complaint.

4 Whip's fourth, fifth, seventh and eighth special defenses concern lack of standing and subject matter jurisdiction.   The court has already addressed the issues of standing and subject matter jurisdiction and need not revisit its prior analysis.   4 Whip has not raised a genuine issue of material fact with regard to its special defenses concerning the court's subject matter jurisdiction over the present action.   Therefore, the fourth, fifth, seventh and eighth special defenses fail to preclude summary judgment.

Finally, 4 Whip's ninth special defense, alleging the defectiveness, unenforceability and prematurity of the Bank's action as a result of the first through eighth special defenses is unavailing.   As noted, the first through eighth special defenses do not raise factual issues sufficient to withstand entry of summary judgment as to liability in the Bank's favor.   Accordingly, the ninth special defense also fails.

CONCLUSION

4 Whip has brought forth no evidence with which to support its special defenses or raise a genuine issue of material fact in this matter.   Furthermore, the Bank has established that it satisfied the preconditions of the mortgage and note, that Donofrio, the defaulting mortgagor, was noticed of his default, that Donofrio and 4 Whip were both served with process, and that the Bank is the present holder of the note and mortgage.

Viewing the available evidence in a light most favorable to 4 Whip, the Bank has established a prima facie case of mortgage foreclosure and 4 Whip's special defenses are insufficient to withstand the entry of summary judgment.   Accordingly, and for the foregoing reasons, the Bank's motion for summary judgment as to liability only is granted.

Hartmere, Judge

FOOTNOTES

FN1. By virtue of a quit claim deed dated and recorded on November 17, 2006, Donofrio transferred an interest in the subject property to 4 Whip. Thus, 4 Whip was made a party to this action due to its status as a subsequent interest holder.   Additionally, the defendant Connecticut Environmental Control, LLC, is a party to this action by virtue of a contractor's lien recorded on the Stratford land records on May 31, 2007..  FN1. By virtue of a quit claim deed dated and recorded on November 17, 2006, Donofrio transferred an interest in the subject property to 4 Whip. Thus, 4 Whip was made a party to this action due to its status as a subsequent interest holder.   Additionally, the defendant Connecticut Environmental Control, LLC, is a party to this action by virtue of a contractor's lien recorded on the Stratford land records on May 31, 2007.

FN2. The Bank states in its memorandum in support of its motion for summary judgment that original ‘or certified copies of these documents “will be produced at the hearing on the motion for summary judgment.”.  FN2. The Bank states in its memorandum in support of its motion for summary judgment that original ‘or certified copies of these documents “will be produced at the hearing on the motion for summary judgment.”

FN3. 4 Whip was served on January 20, 2009, and the defendant Connecticut Environmental, LLC, was served on January 21, 2009..  FN3. 4 Whip was served on January 20, 2009, and the defendant Connecticut Environmental, LLC, was served on January 21, 2009.

FN4. Practice Book § 9-16 provides:  “If, pending the action, the plaintiff assigns the cause of action, the assignee, upon written motion, may either be joined as a co-plaintiff or be substituted as a sole plaintiff, as the judicial authority may order;  provided that it shall in no manner prejudice the defense of the action as it stood before such change of parties.”.  FN4. Practice Book § 9-16 provides:  “If, pending the action, the plaintiff assigns the cause of action, the assignee, upon written motion, may either be joined as a co-plaintiff or be substituted as a sole plaintiff, as the judicial authority may order;  provided that it shall in no manner prejudice the defense of the action as it stood before such change of parties.”

FN5. Furthermore, “[t]he Superior Court is a court of general jurisdiction.   It has jurisdiction of all matters expressly committed to it and of all other matters cognizable by any law court of which the exclusive jurisdiction is not given to some other court.   The fact that no other court has exclusive jurisdiction in any matter is sufficient to give the Superior Court jurisdiction of that matter ․ [T]he general rule of jurisdiction ․ is that nothing shall be intended to be out of the jurisdiction of a Superior Court but that which specially appears to be so ․ [N]o court is to be ousted of its jurisdiction by implication.”   (Internal quotation marks omitted.)  New Haven v. God's Corner Church, Inc., 108 Conn.App. 134, 137, 948 A.2d 1035 (2008)..  FN5. Furthermore, “[t]he Superior Court is a court of general jurisdiction.   It has jurisdiction of all matters expressly committed to it and of all other matters cognizable by any law court of which the exclusive jurisdiction is not given to some other court.   The fact that no other court has exclusive jurisdiction in any matter is sufficient to give the Superior Court jurisdiction of that matter ․ [T]he general rule of jurisdiction ․ is that nothing shall be intended to be out of the jurisdiction of a Superior Court but that which specially appears to be so ․ [N]o court is to be ousted of its jurisdiction by implication.”   (Internal quotation marks omitted.)  New Haven v. God's Corner Church, Inc., 108 Conn.App. 134, 137, 948 A.2d 1035 (2008).

FN6. The court will consider the Hopkins affidavit attached to the Bank's reply memorandum in place of the original Hopkins affidavit attached to the motion for summary judgment in resolving this matter.   The second Hopkins affidavit “assert[s] that the affiant [is] employed by the servicing agent for the substitute plaintiff, a relationship strong enough to establish a foundation for the affiant's claims that she [is] familiar with the books and records regarding the defendant's indebtedness.”  Bank of America, FSB v. Franco, 57 Conn.App. 688, 695, 751 A.2d 394 (2000).   Attached to the Bank's reply are authenticated copies of the exhibits referred to in the second Hopkins affidavit..  FN6. The court will consider the Hopkins affidavit attached to the Bank's reply memorandum in place of the original Hopkins affidavit attached to the motion for summary judgment in resolving this matter.   The second Hopkins affidavit “assert[s] that the affiant [is] employed by the servicing agent for the substitute plaintiff, a relationship strong enough to establish a foundation for the affiant's claims that she [is] familiar with the books and records regarding the defendant's indebtedness.”  Bank of America, FSB v. Franco, 57 Conn.App. 688, 695, 751 A.2d 394 (2000).   Attached to the Bank's reply are authenticated copies of the exhibits referred to in the second Hopkins affidavit.

Hartmere, Michael, J.

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