Bank of Am., N.A. v. Aubut

• Decision Date: 02 August 2016
• Docket Number: No. 37896.,37896.
• Citation: 167 Conn.App. 347,143 A.3d 638
• Court: Connecticut Court of Appeals
• Parties: BANK OF AMERICA, N.A. v. David AUBUT et al.

167 Conn.App. 347

143 A.3d 638

BANK OF AMERICA, N.A.

v.David AUBUT et al.

No. 37896.

Appellate Court of Connecticut.

Argued March 8, 2016.

Decided Aug. 2, 2016.

Gary L. Seymour, Shelton, for the appellants (defendants).

Elizabeth T. Timkovich, with whom, on the brief, was Pierre–Yves Kolakowski, Greenwich, for the appellee (substitute plaintiff).

ALVORD, KELLER and HARPER, Js.

KELLER, J.

In this residential foreclosure action, the defendants, David Aubut and Karen Aubut,¹ appeal following the trial court's judgment of strict foreclosure rendered in favor of the substitute plaintiff, Nationstar Mortgage, LLC. On appeal, the defendants claim that the court erred in rendering summary judgment as to liability only in favor of the substitute plaintiff because: (1) the court improperly concluded that there was no genuine issue of material fact as to whether Karen Aubut was provided with preacceleration notice of default in the manner required by the terms of the mortgage; (2) the court improperly accepted an affidavit submitted in support of the substitute plaintiff's motion for summary judgment; and (3) the court improperly concluded as a matter of law that the defendants could not prevail with respect to their special defenses. We agree, in part, with the defendants' third claim. Accordingly, we reverse the judgment of the trial court.

The following undisputed facts and procedural history are relevant to this appeal.

On September 29, 2009, the defendants executed and delivered a note and mortgage deed to the original, named plaintiff in this action, Bank of America, N.A., in order to obtain a loan to purchase a home in Middletown. The defendants subsequently defaulted on their payments beginning with the payment due on August 1, 2011. On September 16, 2011, the original plaintiff mailed a preacceleration notice of default that was addressed to David Aubut, indicating that the defendants were in default and that it would accelerate the balance on the loan if they did not cure the default on or before October 16, 2011. The defendants failed to cure the default and the debt was accelerated.

On May 20, 2012, the original plaintiff commenced a foreclosure action against the defendants. In its complaint, the original plaintiff alleged, inter alia, that the defendants had defaulted on their mortgage payments and that they had failed to cure the default. The original plaintiff alleged that, as a result, it had elected to accelerate the balance due on the note and to foreclose the mortgage on the defendants' home. On June 5, 2012, the defendants requested to participate in a foreclosure mediation program. Although the defendants did participate in the mediation program from June 9, 2012, to May 30, 2013, they were unsuccessful in reaching an amicable resolution. The defendants filed for bankruptcy in June, 2013. On or about November 13, 2013, the original plaintiff filed a notice of relief from the bankruptcy stay due to the fact that the bankruptcy case had been closed.

On March 28, 2014, the original plaintiff executed an assignment of the mortgage, whereby the substitute plaintiff, as the original plaintiff's attorney in fact, assigned the mortgage to itself. The substitute plaintiff's involvement in the foreclosure action began after the court granted the original plaintiff's June 18, 2014 motion to substitute on June 30, 2014. On July 18, 2014, the defendants filed their disclosure of defense, as well as their answer, which contained special defenses and a three count counterclaim.

On October 30, 2014, the substitute plaintiff filed a motion for summary judgment. The substitute plaintiff, in its memorandum of law in support of the motion, argued that there were no genuine issues of material fact regarding the defendants' liability under the note and the mortgage, and that summary judgment was proper because the defendants' special defenses and counterclaim were legally insufficient. In support of its motion, the substitute plaintiff submitted copies of several documents, including, in relevant part: the note and the mortgage deed that the defendants had executed and delivered to the original plaintiff; the September 16, 2011 preacceleration notice of default mailed by the original plaintiff; the March 28, 2014 assignment of mortgage wherein the substitute plaintiff had assigned itself the mortgage; records documenting the defendants' mortgage payment history; and an affidavit of Fay Janati, an employee of the substitute plaintiff, in which she averred that the defendants were in default and that they were liable to the substitute plaintiff for the balance of the mortgage loan that they had failed to pay pursuant to their mortgage agreement.

On January 13, 2015, the defendants filed their opposition to summary judgment and an accompanying memorandum of law. In support of their opposition, the defendants also submitted copies of several documents, including: paragraph twenty-two of the mortgage deed; a January 13, 2015 notice sent by the defendants' counsel notifying the original plaintiff and the substitute plaintiff that Karen Aubut was rescinding the mortgage pursuant to § 1635 of the federal Truth in Lending Act, 15 U.S.C. § 1601 et seq. ; a printed copy of Janati's LinkedIn profile; a job description of the “Litigation Research Analyst” position posted by the substitute plaintiff; the March 28, 2014 assignment of mortgage; Janati's affidavit; and an affidavit of David Aubut.

On January 26, 2015, the court issued a memorandum of decision wherein it rendered summary judgment as to liability only in favor of the substitute plaintiff. Thereafter, the court rendered judgment of strict foreclosure in favor of the substitute plaintiff. This appeal followed. Additional procedural history and facts shall be set forth as necessary.

I

The defendants first claim that the court erred in rendering summary judgment in the substitute plaintiff's favor because it improperly concluded that there was no genuine issue with respect to whether Karen Aubut, as a “Borrower” listed under the mortgage deed, was provided with preacceleration notice of default in the manner required by the terms of the mortgage. We disagree.

The following additional procedural history and facts are relevant to this claim. In their opposition to the substitute plaintiff's motion for summary judgment, the defendants argued that the preacceleration notice of default that the substitute plaintiff sent to David Aubut created a genuine issue of material fact as to whether the substitute plaintiff had established a prima facie case to institute the foreclosure action. Specifically, in their opposition memorandum of law, the defendants argued the following with respect to this issue: “In its complaint and affidavit in support of its motion [for] summary judgment, [the substitute plaintiff] alleges that it gave proper notice of intent to accelerate to [the defendants] as borrowers as required by paragraph [twenty-two] of the subject mortgage.... A review of the notice reveals that it is deficient as follows ... It is only addressed to David Aubut and not Karen Aubut (consistent with [the Truth in Lending Act] failure to provide notice of [the] right to rescind).... Based on the foregoing, [the substitute plaintiff] cannot make its prima facie case, as it did not, as [a] condition precedent to the institution of foreclosure, properly provide [the defendants] with a notice of default in compliance with the terms of the mortgage.”

In its memorandum of decision, the court, relying on Janati's affidavit, stated that “[b]y letter dated September 16, 2011, and sent by certified mail to the property address [for the home subject to the mortgage], [the original plaintiff] notified the defendants of the default. The defendants have failed to cure the default.” At the conclusion of its memorandum of decision, the court stated that the substitute plaintiff had “presented evidence that it sent a [preacceleration notice of default] which complied with the terms of the loan documents.” The court set forth in its legal analysis of the substitute plaintiff's prima facie case for its foreclosure action, and the court also discussed the evidence submitted in support of summary judgment with respect to this issue: “As evidenced by the mortgage deed, the defendants gave the [substitute] plaintiff's predecessor in interest a mortgage to secure the payment of the note. The terms of the mortgage determine the [substitute] plaintiff's right to foreclosure [of] the mortgage.... In the present case, the note and mortgage deed provide that upon a default under the promissory note, the [substitute] plaintiff is entitled to foreclosure on the mortgage, to demand immediate payment of all sums due and owing, and to collect all expenses incurred in pursuing its remedy. When the [substitute] plaintiff establishes its ownership of the note and satisfies the court of a defendant's failure to make payments according to the note, the [substitute] plaintiff establishes its right to avail itself of such security as the mortgage affords.... In other words, in order to make out a prima facie case in [a] foreclosure action, the [substitute] plaintiff must prove by a preponderance of the evidence that it [is] the owner of the note and mortgage and that [the defendant has] defaulted on the note.... In this case, it is alleged that the defendant, David Aubut, executed the note in the original principal amount of $189,957. The [substitute] plaintiff has presented evidence that the [substitute] plaintiff is the holder of the note and mortgage, which mortgage was executed by the defendants; the note and mortgage are in default; the [substitute] plaintiff has elected to accelerate the indebtedness; and the defendants were duly notified in writing of the default. Again, the party opposing a summary judgment motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. It is...