Mendez v. JPMorgan Chase Bank, N.A.

• Decision Date: 08 January 2016
• Docket Number: X04HHDCV146049524S
• Court: Connecticut Superior Court
• Parties: Anthea Mendez et al. v. JPMorgan Chase Bank, N.A. et al

Anthea Mendez et al. v. JPMorgan Chase Bank, N.A. et al

No. X04HHDCV146049524S

Superior Court of Connecticut, Judicial District of Hartford, Hartford, Complex Litigation Docket

January 8, 2016

UNPUBLISHED OPINION

MEMORANDUM OF DECISION RE MOTIONS FOR SUMMARY JUDGMENT(#438, #440, #443, #444)

David M. Sheridan, J.

This action arises from a series of events that occurred after the public sale of a foreclosed residential property in Windsor Connecticut.The plaintiffs are the owner and mortgagor of the foreclosed property, Anthea Mendez, and her two sons who had resided with her at that location, Jordan Williams and DeNiro Edwards.

The defendants are JPMorgan Chase Bank, N.A.(" JPMC") the holder of the note and mortgage and plaintiff in the foreclosure proceeding; Federal National Mortgage Association(" Fannie Mae"), which was to take possession of and eventually re-sell the foreclosed property; Asset Management Services, Inc.(" AMSI"), a provider of property management services that was retained to prepare the foreclosed property for re-sale; Re/Max Hometown(" Re/Max"), a real estate broker retained to prepare and list the property for re-sale; Debra Colli, a licensed real estate broker retained by Re/Max; Premier Property Preservation, LLC(" PPP"), a property preservation service that, among other things, was retained to clear the property of any belongings left behind or other debris; and David Karat, the principal of PPP.

Pursuant to the court's scheduling order, several of the parties have filed dispositive motions in advance of the trial of this matter.

By their motion filed August 31, 2105[#444], the plaintiffs have moved for partial summary judgment as to liability only with respect to Count One (Trespass and Conversion), Count Eleven (Tortious Interference with Contract vs. JPMC), and Count Twelve (Tortious Interference with Contract vs. Fannie Mae).

By its motion filed August 28, 2015[#440] JPMC has moved for summary judgment as to Count One (Trespass and Conversion) Count Two (Statutory Theft), Count Three (Negligence), Count Nine (Intentional Infliction of Emotional Distress), Count Ten (Negligent Infliction of Emotional Distress) and Count Eleven (Tortious Interference with Contract).

By its motion filed August 28, 2015[#438] Fannie Mae has moved for summary judgment as to Count One (Trespass and Conversion) Count Two (Statutory Theft), Count Four (Negligence), Count Nine (Intentional Infliction of Emotional Distress), Count Ten (Negligent Infliction of Emotional Distress), and Count Twelve (Tortious Interference with Contract).

By its motion filed August 28, 2015[#443] AMSI has moved for summary judgment as to Count One (Trespass and Conversion), Count Two (Statutory Theft), Count Six (Negligence), Count Nine (Intentional Infliction of Emotional Distress), and Count Ten (Negligent Infliction of Emotional Distress).

Although the defendants Re/Max, Colli, PPP and Karat did not file for summary judgment, they have filed memoranda in opposition to the plaintiffs' motion for summary judgment.[#495 and #498.]

All of the parties appeared and were heard at oral argument on October 19, 2015.Jury selection is scheduled to commence on February 3, 2016.

I.STANDARD OF REVIEW

The court begins by recognizing the well-known concept that " summary judgment is a method of resolving litigation when 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 . . . The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried.However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury . . . the moving party for summary judgment is held to a strict standard . . . of demonstrating his entitlement to summary judgment."(Citations omitted; internal quotation marks omitted.)Grenier v. Commissioner of Transportation, 306 Conn. 523, 534-35, 51 A.3d 367(2012).

" The party moving for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact "Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576(2008).In reviewing the evidence offered, the court must " view the evidence in the light most favorable to the nonmoving party."(Internal quotation marks omitted.)Johnson v. Atkinson, 283 Conn. 243, 253, 926 A.2d 656(2007).

" In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact . . . but rather to determine whether any such issues exist."RMS Residential Properties, LLC v. Miller, 303 Conn. 224, 233, 32 A.3d 307(2011).A material fact is one that would alter the outcome of the case.Southbridge Associates, LLC v. Garofalo, 53 Conn.App. 11, 14, 728 A.2d 1114(1999)(citingHammer v. Lumberman's Mutual Casualty Co., 214 Conn. 573, 578, 573 A.2d 699(1990)).

II.FACTS NOT IN DISPUTE

The following facts are not in genuine dispute and are necessary to the resolution of these motions.

On October 4, 2004, the plaintiffAnthea Mendez executed a promissory note in favor of Century 21 Mortgage in the principal amount of $296, 000.The note was secured by a mortgage deed to Century 21 Mortgage on property located at 45 Derek Lane in Windsor.The mortgage was subsequently assigned to JPMC, which was also the holder of the note.After its purchase in 2004, Anthea Mendez resided at the 45 Derek Lane premises continuously through August 2013, along with the other plaintiffs, Jordan Williams and DeNiro Edwards.

On April 19, 2013, JPMC commenced a foreclosure action against the plaintiffAnthea Mendez as to the 45 Derek Lane property, captioned JPMorgan Chase Bank, N.A. v. Anthea Mendez, Judicial District of Hartford, DocketNo. HHD-CV-13-6041076-S.

In August 2013, the plaintiffs vacated the 45 Derek Lane residence due to a flea infestation and moved to a rental property in South Windsor.The plaintiffAnthea Mendez entered into a one-year apartment lease and the plaintiffJordan Williams enrolled in the South Windsor public school system.It appears undisputed that from August 2013 through the end of January 2014, the plaintiffs maintained their household and dwelling in South Windsor and did not reside at the 45 Derek Lane property.

On September 19, 2013, the trial court in the foreclosure action entered a default against Anthea Mendez for her failure to appear.JPMC thereafter moved for and was granted a judgment of foreclosure by sale on September 30, 2013, with a sale date set for January 11, 2014.

Pursuant to the trial court's judgment, a public sale of the defendant's property was held on January 11, 2014.JPMC was the sole bidder present at the sale and placed the winning bid.On January 14, 2014, Anthea Mendez retained legal counsel and filed a motion to open and vacate the judgment of foreclosure by sale.On January 29, 2014, the motion was denied.^[1]

On January 15, 2014, JPMC reported the results of the foreclosure sale to Fannie Mae, and Fannie Mae initiated its process of preparing the property for resale.Fannie Mae assigned AMSI as its field service vendor for property restoration and preservation services to be performed at the 45 Derek Lane property.AMS in turn retained PPP for cleaning and debris removal services--commonly referred to (by the plaintiffs and other parties to this matter) as a " trash out."Fannie Mae also retained Re/Max to assess, list and sell the property.Re/Max in turn contracted with Debra Colli, a licensed real estate broker, to post the property, inspect the property, determine the condition and occupancy of the premises, secure the property, and report back on her findings.

Colli first visited the 45 Derek Lane property on January 16, 2014, and taped a " Know Your Rights" notice to the door of the residence.The following day, January 17, 2014, Colli entered the residence, inspected the premises, and took photographs.Based on her observations, Colli reported to Fannie Mae that the property was not occupied.

On January 18, 2014 Colli returned to the 45 Derek Lane property with a locksmith and discovered the back door to the property was unlocked.She interviewed the neighbors, who told her that no one was living at the property and that there had not been anyone living there for quite some time.

Commencing on January 22 and continuing through January 24, 2014, workers from PPP conducted cleaning and debris removal services at the 45 Derek Lane property.They removed rubbish and remaining personal property from the home and discarded it, performed interior cleaning, winterization and snow removal.

In January of 2014, Massachusetts Homeland Insurance Company provided combined home and automobile insurance coverage for the 45 Derek Lane property as well as the plaintiffs' automobiles.On January29, 2014 JPMC sent a letter to that insurer with reference to the Mendez policy, stating: " Please cancel the policy listed above.Since the foreclosure process has been completed, the insured no longer has an insurable interest in the property."On or around April 7, 2014, the plaintiffs received a notice of cancellation from Massachusetts Homeland Insurance Company, with the cancellation to become effective on May 28, 2014 at 12:01 A.M.The reason given by the insurer for the cancellation was: " We have been...