JP Morgan Chase Bank, National Association v. Holt

• Decision Date: 19 January 2018
• Docket Number: FSTCV085009720S
• Court: Connecticut Superior Court
• Parties: JP Morgan Chase Bank, National Association v. Richard L. Holt aka Richard Holt et al.

JP Morgan Chase Bank, National Association
v.
Richard L. Holt aka Richard Holt et al.

No. FSTCV085009720S

Superior Court of Connecticut, Judicial District of Stamford-Norwalk, Stamford

January 19, 2018

UNPUBLISHED OPINION

Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Tierney, Kevin, J.T.R.

MEMORANDUM OF DECISION

Hon. Kevin Tierney Judge Trial Referee

What is the effect of three promissory notes dated the same date signed by the same borrower secured by the same single mortgage deed on the same real property to the same lender with different endorsements in this one residential mortgage foreclosure action?

This is the third foreclosure action filed concerning this March 22, 2000 $308, 000 Adjustable Rate Note secured by a mortgage on residential property in Norwalk, Connecticut. This was a " Cash-Out Refinance" of existing mortgages by the borrower and, after payment of the prior mortgage loans and closing costs, the borrower received in excess of $170, 000 cash. Ex. 18, Ex. 19, Ex. 22.

The first foreclosure action was commenced by Washington Mutual Bank against Richard Holt and Dorsum Nemus Limited Liability Company returnable to the Superior Court, judicial district of Stamford/Norwalk at Stamford on November 19, 2002, Docket Number FST CV 02-0192482 S. That first foreclosure action matter went to judgment on December 22, 2003. (#109.00.) The judgment was stayed by reason of a bankruptcy filing. After the bankruptcy stay was terminated, the plaintiff filed a Motion to Open the Judgment that was granted on May 23, 2005. (#123.00.) The evidence before this court at trial in this third foreclosure action verifies that on August 19, 2005 $99, 900.37 was paid to the lender from the trustee account of the attorney for the defendants, attorney Larry F. Ginsberg. Ex. 37, Ex. 117. The check cleared on Friday, August 26, 2005. Ex. 117. That payment prompted the withdrawal of the first foreclosure action. On Monday, August 29, 2005, the plaintiff filed its Motion to Open and Vacate Judgment. (#128.00.) Shortly thereafter on October 17, 2005 the first foreclosure action, FST CV 02-0192482 S, was withdrawn. (#129.55.)

The second foreclosure action was also commenced by Washington Mutual Bank against Richard L. Holt a/k/a Richard Holt and Dorsum Nemus Limited Liability Company a/k/a Dorsum Nemus, LLC returnable on April 1, 2008 to the Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket Number FST CV 08-5006915 S. Both defendants were represented by Attorney Larry F. Ginsberg in that second foreclosure, whose appearance was filed on April 10, 2008. That second foreclosure action was withdrawn by the plaintiff on September 24, 2008. (#114.00, #114.55, #116.55.) The court will use the word, WAMU, in this Memorandum of Decision to refer to both Washington Mutual Bank, F.A. and Washington Mutual Bank. Each party was furnished with the Edison docket sheet for the two above two previous foreclosure actions at the beginning of this trial.

The third and current foreclosure action was commenced by JP Morgan Chase Bank, National Association against Richard L. Holt a/k/a Richard Holt and Dorsum Nemus Limited Liability Company returnable to the Superior Court, judicial district of Stamford/Norwalk at Stamford on December 30, 2008, Docket No. FST CV 08-5009720 S. Attorney Larry F. Ginsberg filed appearances for both defendants on January 2, 2009. Attorney Ginsberg represented Dorsum Nemus Limited Liability Company since it was formed in 1996. He represented Richard Holt in a variety of legal matters since 1975. He testified that Richard Holt was the manager of Dorsum Nemus Limited Liability Company on March 22, 2000. Attorney Ginsberg had no knowledge of " Dorsum Lemus Limited Liability Company" except for the foreclosure litigation, all three foreclosures. The defendant, Richard Holt, filed his self-represented appearance on October 2, 2013. On February 13, 2014 the defendant, Richard Holt, filed another self-represented appearance in lieu of Attorney Larry F. Ginsberg. A third self-represented appearance was filed by Richard Holt on January 11, 2016 that changed his telephone number. Dorsum Nemus Limited Liability Company is currently represented by Attorney David A. Scalzi, whose appearance is dated September 29, 2015. Richard L. Holt a/k/a Richard Holt continues to represent himself under his original October 2, 2013 self-represented appearance as modified by his February 13, 2014 appearance and his January 11, 2016 appearance. The heading of various motions identify the defendant, Holt, by the name of Richard L. Holt as well as Richard Holt. The Summons identifies him by using both names. His two filed self-represented appearances identify him only as Richard Holt. The court will refer to the defendant, Holt, as Richard Holt.

On May 6, 2014 the trial of this matter was assigned to the undersigned for both trial and for all other future purposes. (#284.00.) The trial started on May 23, 2014 with a lengthy on the record status conference. The first day of evidence was July 3, 2014. The last day of trial was August 23, 2017 for a total of twenty-eight trial dates.

The court makes the following findings of facts and legal conclusions.

The court finds that this third foreclosure action that is on trial before the undersigned commenced on December 16, 2008 with service on Richard L. Holt a/k/a Richard Holt. See Return of Service in court file filed by State Marshal Mark A. Pesiri. The spelling of the second defendant in the Summons is " Dorsum Nemus Limited Liability Company." Attached to the December 12, 2008 original complaint is Exhibit A, the legal description describing the real property that is the subject of this foreclosure action. That legal description states: " All that certain lot of land, with the buildings thereon, situated in the City of Norwalk in the County of Fairfield and State of Connecticut, known and designated as lot number fifteen (15) on a certain map entitled ‘Map of Dibblecrest at Rowayton, Norwalk, CT., ’ now on file in the office of the Town Clerk of said Norwalk and numbered twenty-two hundred and ninety-one (2291), reference thereto being had"; That same legal description contained in Exhibit B attached to the December 12, 2008 original complaint, being a copy of a Quit Claim deed dated September 16, 1996. That same legal description is attached to the Open-End Mortgage upon which this foreclosure is based, being Exhibit D attached to the original December 12, 2008 complaint. The legal description is contained SCHEDULE A of the Open-End Mortgage. That Open-End Mortgage together with the legal description was recorded in the Norwalk Land Records at Volume 3876 Page 250. That same legal description appears in the December 12, 2008 Notice of Lis Pendens as Exhibit A thereof recorded in the Norwalk Land Records in Volume 6904 Page 155. See Return of Service in the court file.

The operative Complaint is the original December 12, 2008 two-count complaint. Count One seeks reformation of the Open-End Mortgage and Count Two seeks a foreclosure and related remedies. The parties agreed that this foreclosure action commenced on December 17, 2008, the date of the first service on a defendant in the Return of Service in the court file.

Paragraphs 1, 2 and 3 of Count One are incorporated and made paragraphs 1, 2 and 3 of Count Two. Paragraph 1 of both counts state: " On March 22, 2000, Richard L. Holt a/k/a Richard Holt owed Washington Mutual Bank, F.A. which became known as Washington Mutual Bank and is now known as JP Morgan Chase Bank, National Association $308, 000.00, as evidenced by a promissory note for said sum dated on said date, and payable to the order of Washington Mutual Bank, F.A. which became known as Washington Mutual Bank and is now known as JP Morgan Chase Bank, National Association with interest from said date, in monthly installments of principal and interest. A true and correct copy of said Note is attached as Exhibit C."

Paragraph 2 of both counts state: " On said date, by a deed of that date, said Richard L. Holt, a/k/a Richard Holt individually and on behalf of Dorsum Nemus Limited Liability Company a/k/a Dorsum Lemus Limited Liability Company, to secure said note, mortgaged to Washington Mutual Bank, F.A. which became known as Washington Mutual Bank and is now known as JP Morgan Chase Bank, National Association the premises known as 23 Ridgewood Drive, Norwalk, Connecticut, and described in Exhibit A attached hereto and made a part hereof. A true and correct copy of said Mortgage is attached as Exhibit D." Continuing on with the allegations of Count One seeking reformation, paragraph 6 states: " Due to a scrivener’s error at the closing of said mortgage loan, the above-reference mortgage deed stated that the mortgagor was ‘Dorsum L emus Limited Liability Company, ’ instead of ‘Dorsum N emus Limited Liability Company.’ " The relief requested for reformation in Count One is stated in paragraph 7. " The mortgage should be reformed to state the name of the mortgage to be ‘Dorsum Nemus Limited Liability Company.’ "

In Count Two seeking the remedy of foreclosure, the allegations of scrivener’s error and Dorsum L emus Limited Liability Company as stated in Paragraph 6 and 7 of Count One are not part of the Count Two pleadings.

Paragraph 4 of Count Two alleges that: " The Plaintiff is the holder of said Note and Mortgage ..." Paragraph 5 of Count Two claims that the note and mortgage are in default by virtue of nonpayment of installments of principal and interest due on September 1, 2005 and each and every month thereafter. Count Two ends with the allegations of paragraph 8 that: " ... the Defendant, Dorsum Nemus Limited Liability Company is the owner of record and in possession of said premises."

That original December 12, 2008 two-count complaint has not been amended, revised or sought to...