Wilmington Savings Fund Society, FSB v. Blake

Wilmington Savings Fund Society, FSB dba Christiana Trust, not Individually v. Julie Blake aka Julie D. Blake and Julie K. Blake

No. WWMCV146008236S

Superior Court of Connecticut, Judicial District of Windham, Putnam

August 1, 2017

UNPUBLISHED OPINION

MEMORANDUM OF DECISION (MOTION FOR SUMMARY JUDGMENT #138, SHORT CALENDAR MAY 30, 2017)

Harry E. Calmar, J.

The Plaintiff moves for motion for summary judgment on the ground that there is no genuine issue of material fact regarding the defendant's liability in the foreclosure action.

The original plaintiff, CitiMortgage, Inc. (CitiMortgage), filed this foreclosure action on April 22, 2014. According to the complaint, the defendant, Julie Blake, ^[1] owns real property located at 197 Dugg Hill Road in Woodstock, Connecticut (property). On December 10, 2007, the defendant executed and delivered a note (note) in favor of CitiMortgage for the original principal amount of $417, 000. To secure the note the defendant executed and delivered a mortgage (mortgage) on the property to Mortgage Electronic Registration Systems Inc. (MERS) as nominee for CitiMortgage on the same date. The mortgage was later assigned to CitiMortgage from MERS on June 20, 2011 (assignment).

The defendant defaulted on the loan. As a result, CitiMortgage elected to accelerate the balance due under the note in accordance with the terms of the mortgage, duly signed by the defendant. CitiMortgage provided written notice of the foreclosure in accordance with the note and mortgage provisions and caused a Lis Pendens to be recorded on the property. Further, the underlying note and mortgage was also affected by a Home Affordable Modification Agreement, dated April 19, 2010, under which the defendant made only one payment. The modification agreement did not change the maturity date of the loan, just the payment amounts.

Subsequently CitiMortgage moved for summary judgment on August 13 2015.^[2] The court (Calmar, J.) initially granted CitiMortgage's summary judgment, but then denied it on reargument in its decision dated January 6, 2016, due to issues pertaining to a lost note and the lack of reference to a modification agreement.

The note was later located and on January 27, 2016, CitiMortgage assigned the mortgage to Wilmington Savings Funds Society, FSB, DBA Christiana Trust, not individually but as Trustee for Ventures Trust 2013-I-H-R (Wilmington). Thereafter, Wilmington became holder of the note and was substituted into the case as the substitute plaintiff by the court (Calmar, J.) on October 24, 2016.^[3]

Wilmington filed the present motion for summary judgment on October 26, 2016, along with a supporting memorandum of law.^[4] In response, the defendant filed two motions. Specifically, the defendant filed her objection to the summary judgment on December 12, 2016.^[5] The defendant also filed a motion to dismiss on the same date.^[6] The defendant attached an omnibus memorandum of law to her objection to the summary judgment, in which she included both her motion to dismiss, and summary judgment arguments.^[7] The court (Calmar, J.) denied the motion to dismiss on April 26, 2017.^[8] Thereafter, short calendar argument regarding Wilmington's motion for summary judgment occurred on May 30, 2017. At short calendar, Wilmington rested on its arguments in its memorandum. The defendant, however, argued that there is a genuine issue of material fact regarding Wilmington's prima facie case because CitiMortgage previously sold the mortgage to Citibank, N.A. (Citibank) prior to assigning it to Wilmington.

DISCUSSION

" [S]ummary 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." Cefaratti v. Aranow, 321 Conn. 637, 645 138 A.3d 837 (2016). " [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).

In foreclosure actions, " [a] mortgagee that seeks summary judgment . . . has the evidentiary burden of showing that there is no genuine issue of material fact as to any of the prima facie elements, including that it is the owner of the debt." GMAC Mortgage, LLC v. Ford, 144 Conn.App. 165, 177, 73 A.3d 742 (2013). " In order to establish a prima facie case . . . the plaintiff must prove by a preponderance of the evidence that it is the owner of the note and mortgage, that the defendant mortgagor has defaulted on the note and that any conditions precedent to foreclosure, as established by the note and mortgage, have been satisfied." Id., 176.

" A mortgagee is not obligated to produce the original note in order to meet the mortgagee's burden at summary judgment; that burden is satisfied when the mortgagee includes in its submissions to the court a sworn affidavit averring that the mortgagee is the holder of the promissory note in question . . ." (Internal quotation marks omitted.) U.S. Bank, N.A. v. Foote, 151 Conn.App. 620, 633, 94 A.3d 1267, cert. denied, 314 Conn. 930, 101 A.3d 952 (2014). " The evidentiary burden of showing the existence of a disputed material fact then shifts to the defendant." Id., 632. " [T]he existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence." Id., 632-33; see also Little v. Yale University, 92 Conn.App. 232, 235, 884 A.2d 427 (2005), cert. denied, 276 Conn. 936, 891 A.2d 1 (2006).

In the present case, Wilmington moves for summary judgment on the ground that there is no genuine issue of material fact as to liability and that a prima facie case for foreclosure has been set forth within the pleadings. Specifically, Wilmington argues that its affidavit demonstrates that the original plaintiff, CitiMortgage, was the holder of the note when this suit commenced, and that Wilmington, as the substitute plaintiff, is the current holder of the note. Wilmington further argues that the defendant's previous reference to a 2012 lost note affidavit should have no bearing on the present case because the note was located and delivered to CitiMortgage's counsel as bailee, for the sole purpose of commencing the present foreclosure action. Last, Wilmington argues that its affidavit demonstrates not only that the defendant failed to make any payments since June 1, 2010, but that a written notice of default and an applicable EMAP notice was sent to the defendant at her property address via first class and certified mail.

The defendant argues that CitiMortgage's previously denied summary judgment is the law of the case.^[9] Specifically, the defendant argues that the court (Calmar, J.) denied CitiMortgage's summary judgment due to genuine issues of material fact regarding when the note was lost and the existence of a modification agreement. The defendant argues that the law of the case should not be disturbed because Wilmington has not offered any new arguments or evidence.

Further, the defendant argues that Wilmington does not possess the mortgage or the note. In regards to the mortgage, the defendant counters that the mortgage was assigned to Citibank prior to Wilmington's assignment of mortgage, therefore, Wilmington's assignment is not valid. In regards to the note, the defendant counters that Wilmington cannot possibly be in possession of the note because the original note and mortgage were in possession of MERS during the time Wilmington's counsel claims to have had possession of the note.^[10]

I

The Law of the Case

The court begins its analysis by noting that the defendant does not challenge two of the three elements of Wilmington's prima facie case. Specifically, the defendant does not challenge the default or that proper EMAP notice was given. Instead, the defendant contests only that the previous denied summary judgment is the law of the case and that there is a genuine issue of material fact regarding Wilmington's possession of the mortgage and the note.

" The law of the case is not written in stone but is a flexible principle of many facets adaptable to the exigencies of the different situations in which it may be invoked." Breen v. Phelps, 186 Conn. 86, 99, 439 A.2d 1066 (1982). " New pleadings intended to raise again a question of law which has been already presented on the record and determined adversely to the pleader are not to be favored . . . But a determination so made is not necessarily to be treated as an infallible guide to the court in dealing with all matters subsequently arising in the cause." Id. " Where a matter has previously been ruled upon . . . the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance." (Emphasis added.) Id. Thus, it is " within the trial court's discretion to consider a renewed motion for summary judgment that has previously been denied where additional or new evidence has been submitted which was not before the court in ruling upon the earlier motion for summary judgment." Mac's Car City, Inc. v. American National Bank, 205 Conn. 255, 262, 532 A.2d 1302 (1987).

In the present case, Wilmington submits new evidence that was not previously submitted by its predecessor CitiMortgage.^[11] Specifically,...