Opinion
MMXCV146011694
01-07-2016
Christiana Trust, a Division of Wilmington Savings Fund Society, FSB as Trustee for Stanwich Mortgage Loan Trust Series 2012-17 v. Walter J. Lewis, Jr. et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT
Julia L. Aurigemma, J.
The plaintiff, Christiana Trust, a Division of Wilmington Savings Fund Society, FSB, as Trustee for Stanwich Mortgage Loan Trust, Series 2012-17, has moved for summary judgment as to liability only against the defendant, Walter J. Lewis, Jr. (the " defendant"), on the grounds that there are no genuine issues as to any material facts. After listing the mortgage at issue as a secured claim in his 2011 Bankruptcy petition, signing a Foreclosure Mediation Certificate, in which he represented that his primary residence was subject to the mortgage, participating in court annexed mortgage mediation sessions, and filing an Answer and Special Defenses which admitted that he was the " owner of the equity of redemption" on the mortgaged property, the defendant now claims that the mortgage at issue is invalid because his signature thereon is forged.
Factual and Procedural Background
The plaintiff has supported its motion for summary judgment with the affidavit of Robert Raulerson, Contested Foreclosure Specialist for the plaintiff's servicing agent. That affidavit attaches copies of the note executed by the defendant on September 14, 2005, in the original principal amount of $500,000 and payable to the First National Bank of Arizona (the " Note") and further avers that the Note was endorsed in blank prior to the commencement of this action, that the plaintiff was in possession of the Note prior to and at the time of the commencement of this action and is the holder of the note.
The affidavit also attaches a copy of the mortgage deed dated September 14, 2005 wherein the defendant conveyed his interest in real property known as 21 Brush Hill Road, Clinton, Connecticut (the " Property"), to Mortgage Electronic Registration Systems, Inc. as Nominee for First National Bank of Arizona (the " Mortgage"). The Mortgage is signed by the defendant and acknowledged by Attorney Genevieve Salvatore. The affidavit states that the Mortgage was recorded on December 18, 2006 in Volume 407 at Page 1067 of the Clinton Land Records.
An assignment of mortgage dated February 20, 2012 from Mortgage Electronic Registrations Systems, Inc. to Bank of America, N.A. is attached to the affidavit, which states that that assignment was recorded on February 27, 2012 in Volume 458 at Page 205 of the Clinton Land Records. The affidavit further states that the Mortgage was assigned by Bank of America, National Association to the plaintiff by assignment dated April 21, 2014 and recorded May 2, 2014 in Volume 478 at Pages 81-82 of the Clinton Land Records.
The affidavit states that pursuant to the terms of the Note and Mortgage, the defendant was to make principal and interest payments on the first day of each month beginning on November 1, 2005 and that the defendant failed to make monthly payments as required by the loan documents since the payment due for March 1, 2010.
The affidavit of Mr. Raulerson further states that the defendant was duly notified in writing by a prior servicer of the default, that the defendant has failed to cure the default and that the amount due under the Note has been accelerated.
This action was commenced by writ, summons and complaint with a return date of February 21, 2012. In addition to the writ, summons and complaint, the plaintiff served the defendant with a Foreclosure Mediation Notice to Homeowner, which advised the defendant, inter alia, that he would be eligible for the Mediation program if " the mortgage on your owner-occupied residential property is being foreclosed." On May 16, 2014 the defendant filed a Foreclosure Mediation Certificate in which he represented that he was the borrower and the action was a mortgage foreclosure. The court takes judicial notice that seven mediation sessions were scheduled by the court and the Mediator's final report indicates that the matter was not settled and the " parties unable to agree to a short payoff of the mortgage." Mediator's Final Report dated 1/21/2015.
Through counsel on April 9, 2015 the defendant filed an Answer and Special Defenses and on the same date filed a Disclosure of Defense which contained the same four special defenses. None of the special defenses allege that the defendant's signature on the Mortgage is forged.
The plaintiff filed the summary judgment motion on June 10, 2015. On July 2, 2015 the defendant filed a Memorandum of Law in Opposition to the Summary Judgment. The sole ground for the objection is that the defendant's signature on the Mortgage was forged and the attorney who took the defendant's acknowledgment on the Mortgage has been convicted of crimes related to her participation in fraudulent mortgage closings.
In response to the defendant's claim of forgery, the plaintiff has filed a Reply in Further Support of Motion for Summary Judgment dated November 6, 2015. In that memorandum, the plaintiff presents evidence that the defendant filed for Chapter 11 Bankruptcy on August 20, 2011. The plaintiff has appended a copy of the defendant's bankruptcy petition in which the defendant listed BAC Home Loans Servicing, LP as a creditor with a secured claim in the amount of $496,821.61 based on the Mortgage secured by the Property.
The plaintiff has also presented evidence in the form of a transcript of the following testimony under oath by the defendant at the 341 Meeting of Creditors on September 13, 2011:
Ms. Katz (Trustee): Okay. You indicated that you own 21 Brush Hill Road in Clinton. I have an appraisal that values that property at $490,000. Do you think that's a fair statement of the value today?
Mr. Lewis: Yes, I do.
Ms. Katz: And you have a first mortgage of $496,000 on property?
Mr. Lewis: Yes.
At oral argument counsel for the defendant admitted that the defendant received the proceeds from the Note. The defendant has filed nothing which explains why he swore orally and in writing during his bankruptcy proceedings that the Mortgage at issue here was valid, if, as he now claims, the mortgage was invalid due to a forged signature. The defendant acknowledged at the 341 hearing that Genevieve Salvatore was his attorney in connection with the Mortgage at issue.
Discussion of the Law and Ruling
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. . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact . . . A material fact . . . [is] a fact which will make a difference in the result of the case . . . Finally, the scope of our review of the trial court's decision to grant the plaintiff's motion for summary judgment is plenary. (Citations omitted; internal quotation marks omitted.) H.O.R.S.E. of Connecticut, Inc. v. Washington, 258 Conn. 553, 558-60, 783 A.2d 993 (2001).Dipietro v. Farmington Sports Arena, LLC, 306 Conn. 107, 116, 49 A.3d 951 (2012).
The purpose of summary judgment procedure is to allow the court to prevent vexatious and dilatory tactics and to facilitate the expeditious disposition of such cases. Ryan v. Dionne, 28 Conn.Supp. 35, 248 A.2d 583 (1968). Motions for summary judgment are designed to eliminate the delay and expense incident to a trial when there is no real issue to be tried. Wilson v. City of New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).
As the defendant has not disputed the evidence presented by the plaintiff and has not addressed any issues of law other than the issue of the alleged forgery, the court will deem that the special defenses have been abandoned.
The plaintiff argues that the statements made by the defendant in connection with his bankruptcy proceedings constituted judicial admissions by the defendant as to the existence and validity of the Mortgage. " Judicial admissions are voluntary and knowing concessions of fact by a party of a party's attorney occurring during judicial proceedings." LaSalle National Bank v. Freshfield Meadows, LLC, 69 Conn.App. 824, 829-30, 798 A.2d 445 (2002). Judicial admissions are binding on the trier of fact. LaSalle National Bank v. Freshfield Meadows, LLC, 69 Conn.App. 824, 829-30, 798 A.2d 445 (2002). Tianti v. William Raveis Real Estate, Inc., 231 Conn. 690, 695 n.6, 651 A.2d 1286 (1995).
The defendant argues that a forged mortgage deed is a nullity. The court disagrees. In Nappo v. Merrill Lynch Credit Corp., 123 Conn.App. 567, 2 A.3d 959 (2010), the court upheld the validity of a mortgage which the defendant claimed contained a forged signature. In footnote 7 of that decision the court characterized the plaintiff's allegation that she had executed the mortgage in favor of the defendant mortgagee as a judicial admission. In Zanesky v. Treglia, 67 Conn.App. 447, 788 A.2d 1263 (2001), the court affirmed the validity of a deed which bore the " forged" signature of one of the grantors because he admitted that he had given his father permission to sign his name to the deed.
The court must determine whether the defendant's affidavit in which he states that his signature on the Mortgage is forged is sufficient to create a material fact so that summary judgment should not enter given that all the other evidence contains the defendant's explicit and implicit recognition that the Mortgage is valid. As stated above, in the course of his bankruptcy proceedings in 2011, the plaintiff made two judicial admissions that the Mortgage was valid: one in his Petition and one in his testimony at the 341 hearing. The defendant's participation in the court's mortgage mediation program was a further implicit recognition that the Mortgage is valid.
In LaSalle National Bank v. Freshfield Meadows, LLC, 69 Conn.App. 824, 829-30, 798 A.2d 445 (2002), the court upheld a summary judgment based on prior judicial admissions that the mortgage was valid where the defendant's member attempted to attack the validity of the mortgage on summary judgment. As a matter of law the defendant's judicial admissions made in the context of his bankruptcy proceedings establish the validity of the mortgage. Those admissions are binding on this court. The defendant's affidavit that his signature on the Mortgage is forged is not sufficient to overcome those binding judicial admissions. Therefore, summary judgment enters in favor of the plaintiff as to liability.