Bank of America, FSB v. Hanlon
Decision Date | 11 September 2001 |
Docket Number | (AC 21312) |
Citation | 783 A.2d 88,65 Conn. App. 577 |
Court | Connecticut Court of Appeals |
Parties | BANK OF AMERICA, FSB v. EDWARD T. HANLON ET AL. |
Foti, Dranginis and Daly, JS. Bruce S. Beck, for the appellant (named defendant). Kimberly A. Pisinki, for the appellee (plaintiff).
The defendant Edward T. Hanlon1 appeals from the judgment of strict foreclosure rendered by the trial court in favor of the plaintiff, Bank of America, FSB. On appeal, the defendant claims that the court improperly granted the plaintiffs motion for summary judgment.2 We affirm the judgment of the trial court.
The pleadings, affidavits and other documentary information presented to the court reveal the following facts. On November 4, 1992, the defendant and his then spouse, the defendant Wendy R. Hanlon, executed a $155,700 promissory note payable to Arbor National Mortgage, Inc. The note was secured by a mortgage on property at 165 South Road in Bolton. The note and mortgage deed subsequently were assigned to the plaintiff. Since May 1, 1999, the defendant has failed to make payments on the note.
By letter dated July 8, 1999, the plaintiff notified the defendant that On August 17, 1999, the plaintiff mailed a notice of acceleration to the defendant. The defendant has made no attempt to cure the default.
On October 6, 1999, the plaintiff began this foreclosure action. By way of special defense, the defendant claimed that the plaintiff did not comply with paragraph twenty-one of the mortgage deed in that it provided inadequate notice.3 The parties filed cross motions for summary judgment, and the plaintiff filed an objection to the defendant's motion. The court granted the plaintiff's motion for summary judgment as to liability only and, thereafter, rendered a judgment of strict foreclosure. The court denied the defendant's motion for summary judgment, which was based on his claim that he failed to receive proper notice of default and acceleration of the debt. This appeal followed. Additional facts and procedural history will be set forth as necessary.
The standard for appellate review of a court's decision to grant a motion for summary judgment is well established. Practice Book § 17-49 provides that summary 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."
(Citation omitted; internal quotation marks omitted.) Charlemagne v. Progressive Northwestern Ins. Co., 63 Conn. App. 596, 599, 777 A.2d 741 (2001).
(Citations omitted; internal quotation marks omitted.) Saunders v. Stigers, 62 Conn. App. 138, 145, 773 A.2d 971 (2001).
The defendant claims that the plaintiff failed to provide sufficient notice of default as required by the mortgage deed prior to bringing this foreclosure action. He further argues that because proper notice is a condition precedent to a foreclosure action, the plaintiffs failure to notify him properly renders the judgment of foreclosure void. The plaintiff agrees that a notice of default is a condition precedent, but argues that it complied with the notice requirements of paragraph twenty-one of the mortgage. We agree with the plaintiff.
Connecticut Housing Finance Authority v. John Fitch Court Associates Ltd. Partnership, 49 Conn. App. 142, 150, 713 A.2d 900, cert. denied, 247 Conn. 908, 719 A.2d 901 (1998). (Internal quotation marks omitted.) Saunders v. Stigers, supra, 62 Conn. App. 147.
(Citations omitted; internal quotation marks omitted.) Cohen v. Hartford, 244 Conn. 206, 214-15, 710 A.2d 746 (1998); see also Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., 252 Conn. 479, 746 A.2d 1277 (2000); D'Addario v. D'Addario, 26 Conn. App. 795, 603 A.2d 1199 (1992).
(Citation omitted.) Northeast Savings, F.A. v. Scherban, 47 Conn. App. 225, 228, 702 A.2d 659 (1997), cert. denied, 244 Conn. 907, 714 A.2d 2 (1998).
The operative agreement between the parties states in relevant part: In essence, the defendant disputes the meaning of the notice provision contained in the mortgage. Specifically, the defendant argues that he was given only twenty-nine days within which to cure his default because both the day of the occurrence, July 8, 1999, and the terminal day, August 7, 1999, should be excluded.
If the phrase "not less than" is given its ordinary and common meaning in light of the mortgage document, the debtor must be given exactly that specified number of days or more to cure the default before the lender can accelerate the debt. We conclude that where a notice of default requires "not less than" a specific number of days, the period is calculated by excluding the date notice issues and including the last day given to cure the default.4 Therefore, the relevant period begins on the day after the date of the notice and ends at midnight on the last day. The mortgage deed mandates that "not less than 30 days from the date the notice is given ... [is the date] by which the default must be cured...." The notice of default was dated July 8, 1999, and the defendant was given until August 7, 1999, to...
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