Opinion
No. KNO-CV-05-4103360S
October 23, 2007
ARTICULATION OF MEMORANDUM OF DECISION
I. FACTUAL BACKGROUND
This action was commenced by the filing of a complaint with a return date of November 29, 2005 (hereinafter the "Complaint"). The Complaint was brought in one count. The Complaint sought the foreclosure of a first mortgage from the defendant G. Thomas Johnson to the plaintiffs, Leo Antonino and Alvin Schecter, Trustee. The defendant, through his attorney, on May 23, 2007 filed an Answer and Special Defense. The Special Defense alleges that the plaintiffs failed to give proper notice of default and/or notice of acceleration prior to the commencement of the instant action. The plaintiffs filed Motion for Summary Judgment claiming that the allegation contained in the defendant's Special Defense fail as a matter of law.
II STANDARD OF REVIEW
The standard governing a trial court's decision to grant a motion for summary judgment is well established.
Practice Book § 384 [now Practice Book (1998 Rev) § 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 . . . Miller v. United Technologies Corp., 233 Conn. 732, 744-45, 660 A.2d 810 (1995). In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . Id., 745. The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material fact which, under applicable principles of substantive law, entitle him to a judgment as a matter of law; D.H.R. Construction Co., Inc. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980); and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. Practice Book § 381 [now Practice Book (1998 Rev) § 17-46] . . . Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 105, 639 A.2d 507 (1994).
Hertz Corp. v. Federal Ins. Co., 245 Conn. 374, 380-81, 713 A.2d 820 (1998) (internal quotation marks omitted).
III. ANALYSIS
Connecticut law recognizes only limited defenses to a foreclosure action. "The traditional defenses available to a foreclosure defendant are payment, discharge, release, satisfaction or invalidity of a lien." City of Middletown v. 180 Johnson Road, Superior Court, J.D. of Middlesex at Middletown, Docket No. 0082578 (January 6, 1998) (Fineberg, J.) (internal quotation marks omitted) (unreported) (citing Petterson v. Weinstock, 106 Conn. 436, 138 A. 433 (1927)). Additional defenses available to a foreclosure defendant are "mistake, accident, unclean hands, breach of implied covenant of good faith and fair dealing, equitable estoppel, laches, CUTPA, and refusal to agree to a favorable sale to a third party." Id.
The defendant alleged that the plaintiffs failed to provide proper notice of default and/or notice of acceleration and that said notice was a condition precedent to the commencement of the current action. "Notices of default and acceleration are controlled by the mortgage documents. Construction of a mortgage deed is governed by the same rules of interpretation that apply to written instruments or contract generally, and to deeds particularly." New Haven Savings Bank, Successor Trustee v. Simon R. LaPlace, et al., 66 Conn.App. 1, 12, 783 A.2d 1174 (2001) (citations omitted); Alco Standard Corporation v. Robert Charnas, et al., 56 Conn.App. 568, 744 A.2d 924 (1999).
In Alco Standard Corporation v. Robert Charnas, 56 Conn.App. 568, 744 A.2d 924 (1999), the plaintiff commenced a foreclosure action prior to giving the defendant written notice of default. The plaintiff moved for summary judgment and the defendant objected on the grounds that a genuine issue of fact existed as to whether the note was properly in default because the plaintiffs failed to provide notice of default. The note provided "[i]f any payment due hereunder shall not have paid within ten (10) days after the same is due, or if any other agreement of the Maker herein contained shall be in default and shall not have been fully performed within thirty (30) days after written notice of default has be mailed to maker . . . then the entire unpaid principal, at the option of the Holder, shall become immediately due and payable without notice or demand." Id. at 572. The court granted the plaintiff's Motion for Summary Judgment and held that the note was clear and unambiguous, that the notice of default was for nonmonetary defaults only and not monetary defaults. Id.
In the present action, the mortgage deed and security agreement dated June 28, 2004 and recorded at Volume 873, Page 254 of the Groton Land Records, provided in relevant part that an "event of default" is the "failure by Grantor to pay (i) any periodic installment of interest or principal which shall become due and payable under the note . . ." See Mortgage Deed and Security Agreement Section 20(a). The mortgage deed and security agreement further provides "[i]f default shall be made in due observance or performance of any other covenant or condition on the part of Grantor under this Mortgage Deed, the Note or any other document evidencing or securing the loan transaction which is the subject thereof, and such default shall have continued for a period of fifteen (15) days after written notice specifying such default . . ."
As evidenced on the face of the mortgage deed and security agreement, this court concludes contrary to defendant's contention, that the plaintiffs were not required to provide the defendant with notice of default and/or notice of acceleration prior to the commencement of the current action. As the court in Alco held, to interpret the language in the mortgage deed as requiring notice of default for monetary defaults would "fl[y] in the face of the note's clear language and would cause the entire first phrase of the default paragraph to be without a specific legal meaning." Id. at 572. As was the case in Alco, the language in the plaintiffs' mortgage "addresses two separate and distinct alternatives that would cause the unpaid principal to become immediately due." Id. The first default is for nonpayment and the second is for a default of any other covenant or condition that continues for period of fifteen (15) days after written notice.
This court further concludes the mortgage deed and security agreement are clear and unambiguous as to the notice requirements the plaintiffs were to provide the defendant. The plaintiffs under the documents were not required to provide notice for a monetary default, which as evidenced by the plaintiffs' complaint dated November 9, 2005 and the plaintiffs' amended complaint dated April 16, 2007, was the cause of the default. This court concludes that the documents did not provide for such notice. No genuine issue of material facts exists. Summary judgment was granted on July 23, 2007 based upon the common-law authority cited by this court.