PNC Bank, N.A. v. Wagner

• Decision Date: 17 December 2012
• Docket Number: WWMCV116003374S.
• Court: Connecticut Superior Court
• Parties: PNC BANK, N.A. v. David WAGNER.

PNC BANK, N.A. v. David WAGNER.

No. WWMCV116003374S.

Superior Court of Connecticut, Judicial District of Windham.

December 17, 2012

UNPUBLISHED OPINION

POTTER, R., J.T.R.

The plaintiff, PNC Bank, National Association (PNC), brings this mortgage foreclosure action against the named defendant David R. Wagner. PNC alleges the following facts. On January 23, 2001, Wagner and his then wife, Francesca Cintolo purchased a 106-acre parcel of laid located at 302 Kemp Road Scotland, Connecticut. On May 26, 2006, Wagner and Cintolo executed and delivered a note in the amount of $483, 200 to National City Mortgage (NCM). On that date, they also executed a mortgage to NCM, pledging a security interest in the property at 302 Kemp Road, Scotland, Connecticut. The mortgage was recorded on June 1, 2006. On September 21, 2006 NCM assigned the note and mortgage to National City Mortgage Corporation (NCMC). The assignment was recorded on October 10, 2006.

In September 2008, Cintolo quitclaimed her entire interest in 302 Kemp Road to Wagner via a quit claim deed dated September 27, 2008.^[1] On October 1, 2008, NCMC merged into National City Bank (NCB). Prior to the merger, NCMC had been a subsidiary of NCB. On November 6, 2009, NCB merged into PNC. PNC is the current holder and owner of the original note and mortgage executed by Wagner and Cintolo.

Under the terms of the note and mortgage, Wagner was required to make monthly payments on the first of each month. On December 1, 2008, the defendant stopped making payments on the loan. On November 30, 2010, the plaintiff sent the defendant a demand letter notifying him of his default and the loan's pending acceleration. The demand letter gave the defendant until December 17, 2010 to cure his default.

On March 16, 2011, the plaintiff filed a foreclosure complaint. On September 20, 2011, the defendant filed a revised answer and five special defenses. On June 26, 2012, the plaintiff filed a revised motion for summary judgment as to liability a memorandum and several exhibits. In its memorandum of law in support, the plaintiff argues that there are no genuine issues of material fact concerning its status as the holder of the defendant's note and mortgage, the defendant's default status, and their entitlement to foreclose on the Kemp Road property. The defendant filed an objection and memorandum in opposition on August 2, 2012. On that date, the defendant also filed a " statement of material facts in dispute, " but submitted no evidence in support of his opposition. The plaintiff filed a memorandum and exhibit in reply to the defendant's objection to its motion on August 22 and 24, 2012. The matter was heard at short calendar on September 10, 2012.

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." " In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Brooks v. Sweeney, 299 Conn. 196, 210, 9 A.3d 347 (2010). " 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." Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).

" In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact ... Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008). " As the party moving for summary judgment, the [movant] is required to support its motion with supporting documentation, including affidavits." Heyman Associates No. 1 v. Insurance Co. of Pennsylvania, 231 Conn. 756, 796, 653 A.2d 122 (1995). Likewise, " [t]he existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence." (Internal quotation marks omitted.) Little v. Yale University, 92 Conn.App. 232, 235, 884 A.2d 427 (2005), cert. denied, 276 Conn. 936, 891 A.2d 1 (2006). " [B]efore a document may be considered by the court [in connection with] a motion for summary judgment, there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be. The requirement of authentication applies to all types of evidence, including writings ... Conn.Code Evid. § 9-1(a), commentary. Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including, but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be." (Internal quotation marks omitted.) Gianetti v. Health Net of Connecticut, Inc., 116 Conn.App. 459, 466-67, 976 A.2d 23; accord New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005).

" It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact ... are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., supra, 285 Conn. at 11. " Such assertions are insufficient regardless of whether they are contained in a complaint or a brief." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 129 Conn.App. 481, 497, 21 A.3d 889, cert. granted in part, 302 Conn. 934, 28 A.3d 991 889 (2011); accord Shukis v. Board of Education, 122 Conn.App. 555, 565, 1 A.3d 137 (2010).

In his objection to the plaintiff's motion, the defendant challenges PNC's " capacity to sue, including its standing as a successor to the original holder of the alleged mortgage instrument." The defendant argues that standing is a factual issue to be determined at trial and necessitates the denial of summary judgment.

" The question of standing implicates a court's subject matter jurisdiction and, as such, may be raised at any time during the proceedings ... Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy ..." (Citations omitted; internal quotation marks omitted.) Ulster Savings Bank v. 28 Brynwood Lane, Ltd, 134 Conn.App. 699, 705, 41 A.3d 1077 (2012).

" It is well established that the holder of a promissory note secured by a mortgage automatically has standing and thus the right to enforce the mortgage. The mortgage follows the debt, in the sense that the assignment of the note evidencing the debt automatically carries with it the assignment of the mortgage. New Milford Savings Bank v. Jajer, 244 Conn. 25, 266 (1998), citing, inter alia, Restatement (Third) Property, Mortgages § 1.1 ..." (Citations omitted; internal quotation marks omitted.) Ulster Savings Bank v. 28 Brynwood Lane, Ltd., Superior Court, judicial district of Stamford-Norwalk, Docket No. CV 05 4007323 (May 27, 2010, Jennings, J.T.R.), aff'd., 134 Conn.App. 699, 41 A.3d 1077 (2012). " [A] holder of a note is presumed to be the owner of the debt, and unless the presumption is rebutted, may foreclose the mortgage under § 49-17. The possession by the bearer of a note indorsed in blank imports prima facie that he acquired the note in good faith for value and in the course of business, before maturity and without notice of any circumstances impeaching its validity. The production of the note establishes his case prima facie against the makers and he may rest there ... It [is] for the defendant to set up and prove the facts which limit or change the plaintiff's rights." (Internal quotation marks omitted.) RMS Residential Properties, LLC v. Miller, 303 Conn. 224, 231-32, 32 A.3d 307 (2011).

In the present case, the plaintiff submitted numerous exhibits which establish its status as a holder of the mortgage and note.^[2] It was then incumbent on the defendant to rebut the plaintiff's presumption of ownership. Having failed to submit any evidence in opposition to the plaintiff's motion for summary judgment, that presumption persists. As a result, PNC has standing to foreclose.

Having determined that the plaintiff has standing to bring this foreclosure action, the court continues to the merits of the foreclosure action. " Only one of [a defendant's] defenses needs to be valid in order to overcome [a] motion for summary judgment. [S]ince a single valid defense may defeat recovery, [a movant's] motion for summary judgment should be denied when any defense presents significant fact issues that should be tried." (Internal quotation marks omitted.) Union Trust Co. v. Jackson, 42 Conn.App. 413, 417, 679 A.2d 421 (1996). Because the viability of a single special defense necessitates a denial of the plaintiff's motion for summary judgment as to liability, the court will address the defendant's five special defenses seriatim before proceeding to the merits of the plaintiff's foreclosure complaint.

In his first and second special defenses, the defendant alleges fraud, intentional and negligent misrepresentation in the execution of the note and deed,...