JPMorgan Chase Bank, National Association v. Syed

• Decision Date: 02 January 2018
• Docket Number: HHDCV136041948S
• Court: Connecticut Superior Court
• Parties: JPMORGAN CHASE BANK, NATIONAL ASSOCIATION v. Sonia SYED aka Sonia Haque et al.

JPMORGAN CHASE BANK, NATIONAL ASSOCIATION v. Sonia SYED aka Sonia Haque et al.

No. HHDCV136041948S

Superior Court of Connecticut, Judicial District of Hartford, Hartford

January 2, 2018

UNPUBLISHED OPINION

OPINION

Sheridan, J.

In this foreclosure action, the substitute plaintiff Christiana Trust, A Division of Wilmington Savings Fund Society, FSB, as Trustee for Normandy Mortgage Loan Trust, Series 2013-18 moves for summary judgment in its favor as to liability. The defendant Sonia Syed opposes the motion " on the grounds that there exists disputes of material fact, namely that the Plaintiff took assignment of the loan through a fraudulent endorsement."

I. FACTS

The plaintiff moves for summary judgment as to liability only, asserting that there is no genuine issue of material fact as to all the elements of a prima facie case for foreclosure, and the defendant’s special defenses and counterclaim do not create any genuine issue of material fact as to the plaintiff’s entitlement to the remedy of foreclosure.

In support of its motion, the plaintiff submits an affidavit of Danielle Cull, a Litigation Specialist, employed by Selene Finance, LP, the mortgage loan servicer for the mortgage loan account in question. Ms. Cull attests that authentic copies of the loan documents (note and mortgage) executed by the defendant are attached to her affidavit. Ms. Cull recites that, prior to the commencement of this action, the note was endorsed in blank, negotiated and delivered to the original plaintiff, JPMorgan Chase Bank, N.A. While this action was pending, the note was transferred to the present, substitute, plaintiff, Christiana Trust, A Division of Wilmington Savings Fund Society, FSB, as trustee for Normandy Mortgage Loan Trust, Series 2013-18.

Ms. Cull attests that the note and mortgage are in default by virtue of nonpayment of monthly installments of principal and interest due on July 1, 2009 and continued nonpayment each and every month thereafter. The holder of the note exercised its option to declare the entire balance of said note due and payable, and the unpaid balance of $510, 434.19 plus interest from June 1, 2009, late charges and collection costs has not been paid.

Ms. Cull also verifies the authenticity of a copy of the notice of default which was mailed to the defendant on June 29, 2010. The notice specified the default, the action required to cure the default and a date by which the default had to be cured. Cull verifies that the default, as specified in the notice, was not cured.

The plaintiff argues that this court has the authority to grant summary judgment in a foreclosure case notwithstanding pending special defenses. The defendant asserts seven special defenses, as follows: First Special Defense- Payment and Incorrect Computation of Debt; Second Special Defense- Standing; Third Special Defense- Payment (C.G.S. § 42a-3-602); Fourth Special Defense- Unclean Hands; Fifth Special Defense- Unfair Trade Practices; Sixth Special Defense- Unauthorized Signatures (C.G.S. § 42a-3-308 and 42a-3-403); Seventh Special Defense- unclean hands.

The defendant opposes the motion on the basis that " the plaintiff took assignment of the loan through a fraudulent endorsement." The defendant represents that the note in this case, which was endorsed in blank by Washington Mutual Bank, FA, purportedly signed by an individual named Cynthia Riley. But, the defendant argues, Cynthia Riley did not actually sign the document; someone else signed her name or used a signature stamp on the endorsement. In support of this claim, the defendant has offered excerpts from a deposition of Cynthia Riley taken in the Florida case of JPMorgan Chase Bank, NA v. Eduardo Orozco, 11th Judicial Circuit in and for Miami-Dade County, Case No. 0929997 CA (11).

II. ANALYSIS

A court may properly grant summary judgment as to liability in a foreclosure action if the complaint and supporting affidavits establish an undisputed prima facie case and the defendant fails to assert any legally sufficient special defense. Wells Fargo Bank, N.A. v. Strong, 149 Conn.App. 384, 392, 89 A.3d 392 (2014); GMAC Mortgage, LLC v. Ford, 144 Conn.App. 165, 176, 73 A.3d 742 (2013).

A. Plaintiff’s Prima Facie Case

" In order to establish a prima facie case in a mortgage foreclosure action, 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 ... Thus, a court may properly grant summary judgment as to liability in a foreclosure action if the complaint and supporting affidavits establish an undisputed prima facie case and the defendant fails to assert any legally sufficient special defense. (Citations omitted.) GMAC Mortgage, LLC v. Ford, 144 Conn.App. 165, 176, 73 A.3d 742 (2013)." Wells Fargo Bank, N.A. v. Strong, 149 Conn.App. 384, 392, 89 A.3d 392 (2014).

" A mortgagee that seeks summary judgment in a foreclosure action 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. Appellate courts in this state have held that the 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 at the time it commenced the action ... The evidentiary burden of showing the existence of a disputed material fact then shifts to the defendant. It is for the maker of the note to rebut the presumption that a holder of the note is also the owner of it." (Citations omitted.) Wells Fargo Bank, N.A. v. Strong, 149 Conn.App. 384, 392 (2014).

" 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.

In the present case, the Affidavit of Danielle Cull establishes that, prior to the commencement of this action, the note was endorsed in blank, negotiated and delivered to the original plaintiff, JPMorgan Chase Bank, N.A. The evidence submitted by the defendant does not controvert the affiant’s representation that the note was in the possession of the plaintiff prior to commencement of the action. Thus, the defendants have failed to establish a genuine issue of material fact as to the plaintiff’s proof of ownership of the note and mortgage in support of its prima facie case of foreclosure. See Equity One, Inc. v. Shivers, 310 Conn. 119, 132-33, 74 A.3d 1225 (2013) (trial court correctly relied on the plaintiff’s representation that it held the note " at the time of the commencement of the foreclosure action").

The court therefore finds that there are no genuine issues of material fact remaining and that the plaintiff has made out a prima facie case in this mortgage foreclosure action.

B. Special Defenses

Where a complaint and supporting affidavits establish an undisputed prima facie case in a foreclosure action, the court must then determine whether any special defense is legally sufficient before granting summary judgment. " 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 ... Where the plaintiff’s conduct is inequitable, a court may withhold. foreclosure on equitable considerations and principles ... [O]ur courts have permitted several equitable defenses to a foreclosure action." (Internal quotation marks omitted.) Fidelity Bank v. Krenisky, 72 Conn.App. 700, 705-06, 807 A.2d 968, cert. denied, 262 Conn. 915, 811 A.2d 1291 (2002). " If a plaintiff in a foreclosure action has shown that it is entitled to foreclose, then the burden is on the defendant to produce evidence supporting its special defenses in order to create a genuine issue of material fact; valid, legally sufficient special defenses alone do not." WM Specialty Mortgage, LLC v. Brandt, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 09 5001157 (February 10, 2009, Moran, J.).

" As a general rule, facts must be pleaded as a special defense when they are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action." (Emphasis added; internal quotation marks omitted.) Mitchell v. Guardian Systems, Inc., 72 Conn.App. 158, 166, 804 A.2d 1004, cert. denied, 262 Conn. 903, 810 A.2d 269 (2002); see Practice Book § 10-50.

The traditional special defenses available in a foreclosure action are payment, discharge, release, satisfaction and invalidity of a lien. See Southbridge Associates, LLC v Garofalo, 53 Conn.App. 11, 15-16, 728 A.2d 1114, cert. denied, 249 Conn. 919, 733 A.2d 229 (1999). In recognition that a foreclosure action is an equitable proceeding, courts also have recognized defenses based on mistake, accident, fraud, CUTPA, laches, tender of deed in lieu of foreclosure and a refusal to agree to a favorable sale to a third party, usury, unconscionability of interest rate, duress, coercion, material alteration and lack of consideration to be pleaded as Special Defenses. See Fidelity Bank v. Krenisky, 72 Conn.App. 700 (2002); Knights of Columbus Federal Credit Union v. Salisbury, 3...