U.S. Bank Trust, N.A. v. Dallas, AC 45003

• Court: Appellate Court of Connecticut
• Writing for the Court: EVELEIGH, J.
• Citation: 213 Conn.App. 483,278 A.3d 1138
• Parties: U.S. BANK TRUST, N.A., Trustee v. Lesley DALLAS et al.
• Docket Number: AC 45003
• Decision Date: 28 June 2022

213 Conn.App. 483

278 A.3d 1138

U.S. BANK TRUST, N.A., Trustee

v.Lesley DALLAS et al.

AC 45003

Appellate Court of Connecticut.

Argued May 11, 2022

Officially released June 28, 2022

Gary L. Seymour, Shelton, for the appellant (named defendant).

Frank B. Velardi, Jr., New Haven, for the appellee (plaintiff).

Moll, Cradle and Eveleigh, Js.

EVELEIGH, J.

The defendant Lesley Dallas¹ appeals following the judgment of strict foreclosure rendered against her in favor of the plaintiff, U.S. Bank Trust, N.A., as Trustee for LSF9 Master Participation Trust, in this residential mortgage foreclosure action. On appeal, the defendant claims that the court improperly granted the plaintiff's motion for summary judgment as to liability only because it erred in determining that there were no genuine issues of material fact as to the defendant's

special defenses of residential mortgage fraud and fraud in the inducement. We affirm the judgment of the trial court.

The following facts and procedural history are revealed by the record. On November 2, 2005, the defendant executed a promissory note in the amount of $650,000 payable to the order of Chase Bank USA, N.A., and secured by a mortgage on the property located at 1 Skiff Mountain Road in Sharon. The mortgage and the note eventually were assigned to the plaintiff before it commenced this action.

On February 11, 2016, the plaintiff commenced the present foreclosure action by way of a complaint alleging that the mortgage and promissory note executed by the defendant are now in default by virtue of her failure to pay the monthly installments of principal and interest due on January 1, 2009, and on the first day of each month thereafter. On October 25, 2017, the defendant filed her operative revised special defenses, which asserted, inter alia, that the plaintiff engaged in residential mortgage fraud (first special defense) and fraud in the inducement (fourth special defense).² Both of these special defenses generally allege that the plaintiff "forged, fabricated, and robo-signed" documents it knew were untrue and made false representations to the defendant during the mortgage process.

On June 10, 2019, the plaintiff filed a motion for summary judgment as to liability only against the defendant. In support of its motion, the plaintiff attached a series of documents evincing that it was the holder of the note and mortgage, that the defendant was in default, and that the defendant's special defenses were legally insufficient. On August 7, 2019, the defendant

filed an objection and a memorandum of law in opposition to the plaintiff's motion in which she argued that her first and fourth special defenses precluded judgment in favor of the plaintiff. The defendant submitted only her own affidavit in support of her objection.

On May 24, 2021, the court, J. Moore, J. , after a hearing, issued an order and memorandum of decision granting the plaintiff's motion for summary judgment as to liability only. In its memorandum of decision, the court reviewed the plaintiff's claims, the defendant's special defenses, and the relevant legal authority, followed by a thorough analysis of the legal issues presented. The court determined that the documents submitted by the plaintiff established a prima facie case as to liability and that there was nothing in the defendant's affidavit that negated or undermined the plaintiff's prima facie case. Ultimately, the court concluded that the defendant failed to submit any evidence to support her special defenses and, therefore, summary judgment was warranted as to the issue of liability. On September 13, 2021, the court rendered a judgment of strict foreclosure against her in favor of the plaintiff. This appeal followed.

On appeal, the defendant claims that the court improperly granted the plaintiff's motion for summary judgment as to liability only because it erred in determining that there were no genuine issues of material fact as to the defendant's special defenses of residential mortgage fraud and fraud in the inducement. On the basis of our examination of the record on appeal, and the briefs and arguments of the parties, we are persuaded that the judgment of the trial court should be affirmed. Because the court's memorandum of decision aptly addresses the arguments raised by the defendant, we adopt its thorough and well reasoned decision as a proper statement of the facts and applicable law on

these issues. See U.S. Bank Trust, N.A. v. Dallas , Superior Court, judicial district of Litchfield, Docket No. CV-16-6013346-S, 2021 WL 8945737 (May 24, 2021) (reprinted at 213 Conn. App. 483, ––– A.3d –––– ). It would serve no useful purpose for us to repeat the discussion contained therein. See, e.g., Ortiz v. Torres-Rodriguez , 205 Conn. App. 129, 132, 255 A.3d 941, cert. denied, 337 Conn. 910, 253 A.3d 43 (2021) ; Phadnis v. Great Expression Dental Centers of Connecticut, P.C. , 170 Conn. App. 79, 81, 153 A.3d 687 (2017).

The judgment is affirmed and the case is remanded for the purpose of setting new law days.

In this opinion the other judges concurred.

APPENDIX

U.S. BANK TRUST, N.A., TRUSTEE v. LESLEY DALLAS ET AL.^*

Superior Court, Judicial District of Litchfield

File No. CV-16-6013346-S

Memorandum filed May 24, 2021

Proceedings

Memorandum of decision on plaintiff's motion for summary judgment. Motion granted .

Adam L. Avallone and Frank Velardi , for the plaintiff.

Gary L. Seymour , for the named defendant.

Opinion

J. MOORE, J. The plaintiff, U.S. Bank Trust, N.A., as Trustee for LSF9 Master Participation Trust, filed a motion for summary judgment in this foreclosure action on liability only on June 10, 2019 (#172). The defendant

Lesley Dallas (Dallas) filed a memorandum in opposition to the motion for summary judgment on August 7, 2019. The court conducted a remote hearing on the motion for summary judgment on January 15, 2021. The plaintiff filed the requisite Federal Mortgage Foreclosure Moratorium Affidavit on April 20, 2021 (#185). For the reasons set forth below, the court grants the motion for summary judgment on liability only.

Dallas’ memorandum in opposition and her supporting affidavit rely solely on her two remaining special defenses. There is nothing in the memorandum in opposition or in Dallas’ affidavit that attempts to negate or undermine the conclusion that the plaintiff has established a prima facie case of foreclosure.

The plaintiff has, indeed, established a prima facie case for foreclosure by means of an affidavit submitted by the mortgage loan servicer of the plaintiff and by the exhibits attached thereto. The plaintiff's affidavit satisfies the prerequisites of General Statutes § 52-180, as construed in RMS Residential Properties, LLC v. Miller , 303 Conn. 224, 235–36, 32 A.3d 307 (2011), overruled in part on other grounds by J.E. Robert Co. v. Signature Properties, LLC , 309 Conn. 307, 325 n.18, 71 A.3d 492 (2013). The plaintiff's affidavit establishes the following facts: (1) the defendant Dallas executed and delivered a promissory note on November 2, 2005, in favor of the original lender, Chase Bank USA, N.A., in the amount of $650,000; (2) through two assignments, the plaintiff has become the payee of the note and was in possession of the note prior to filing this lawsuit; (3) the defendant Dallas executed and delivered a mortgage on 1 Skiff Mountain Road, Sharon, Connecticut on November 2, 2005, in favor of the plaintiff's predecessor in interest, which mortgage was recorded on December 30, 2005; (4) as of May 22, 2019, the unpaid balance of the note is $632,361.19 plus interest, late charges and collections costs, and this unpaid balance, although due

and payable, has not been paid; (5) the defendant Dallas has been in default under the terms of the note and mortgage since January 2, 2009; (6) notice of the default was dated on or about October 15, 2009, and was sent by first class mail, postage fully paid to the defendant Dallas; (7) the notice set forth the default, the action required to cure it and a date by which the default needed to be cured; (8) the defendant Dallas did not cure the default in timely fashion and, as a result, the plaintiff elected to accelerate the indebtedness owed and brought this foreclosure action; and (9) the defendant Dallas has not yet cured the default. These facts establish a prima facie case in a mortgage foreclosure action under GMAC Mortgage, LLC v. Ford , 144 Conn. App. 165, 176, 73 A.3d 742 (2013).

Based on the Federal Mortgage Foreclosure Moratorium Affidavit recently filed in court, the court finds that the loan secured by this mortgage is not a " ‘Federally Backed Mortgage Loan’ " as defined by 15 U.S.C. 9056 (a) (2) of the CARES Act, and is, therefore, not subject to any federal foreclosure moratorium.

Dallas has, however, raised two special defenses and has argued that the court must, in an equitable action such as this foreclosure, review all of her pleadings liberally to see if she has raised any other defenses. The court will consider the issues raised by each of her special defenses, and then the argument about other equitable special defenses, seriatim.

The first special defense is entitled, "Residential Mortgage Fraud." This special defense, read generously, essentially makes two kinds of allegations. The first pertains to documents and alleges that the original lender and the existing plaintiff (called the plaintiff and the substitute plaintiff, respectively, in the special defense) "knowingly and wilfully omitted mandatory

disclosure documents, and forged, fabricated and robo-signed documents they knew were untrue," that the original lender and that the plaintiff "knowingly, intentionally and wilfully" did so "to deceive, mislead and induce" Dallas to enter into the loan. The second is a very vague allegation that the original lender and the plaintiff made false representations that Dallas relied on to her detriment. As a result of this misconduct, "foreclosure cannot be had."

The second...