Opinion
FSTCV156026645S
09-06-2017
Deutsche Bank National Trust Company as Trustee for Registered Holders of Long Beach Mortgage Loan Trust 2006-WL3, Asset-Backed Certificates Series 2006-WL3 v. Joseph Ponger et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
A. William Mottolese, Judge Trial Referee.
The parties have stipulated to all of the facts necessary to entitle the plaintiff to a judgment of foreclosure except that the defendant, Theresa Ponger (" Theresa") defends on the grounds that as a " borrower" she was entitled to be given written notice of default and acceleration, but because such notice was not given, a precondition to foreclosure has not been satisfied. Accordingly, Theresa seeks a judgment based on this special defense.
The plaintiff argues that the notice given to the co-borrower, Joseph Ponger, (" Joseph") (i) was in compliance with the loan documents and (ii) notwithstanding, under our case law, the plaintiff was only required to give notice to Joseph because as a joint owner of the mortgaged property, notice given to one joint owner is deemed to constitute notice to the other joint owner.
The controversy has arisen because while only Joseph signed the promissory note, both Joseph and Theresa signed the mortgage deed given to secure the note. Theresa maintains that because the mortgage instrument refers to her as " borrower" she was entitled to the same notice as Joseph pursuant to paragraph 14 of the mortgage which reads as follows: " 14. Notices--Any notice to Borrower provided for in this Security Instrument shall be given by delivering it or by mailing it by first class mail unless applicable law requires use of another method. The notice shall be directed to the Property Address or any other address Borrower designates by notice to Lender. Any notice to Lender shall be given by first class mail to Lender's address stated herein or any other address Lender designate by notice to Borrower. Any notice provided for in this Security Instrument shall be deemed to have been given to Borrower or Lender when given as provided in this paragraph."
The court agrees with the second argument advanced by the plaintiff and for that reason there is no need to decide whether the plaintiff was required by the loan documents to give written notice to Theresa.
Resolution of this issue is controlled squarely by Citicorp Mortgage, Inc. v. Porto, 41 Conn.App. 598, 600-04, 677 A.2d 10 (1996). The facts of that case are identical to those of the present case except that the party who did not receive notice also signed the note. This difference does not render the principle applied in that case inapplicable to the present case. The court concluded as follows: " Although we hold that proper notice of acceleration is a necessary condition precedent to an action for foreclosure, we conclude that the plaintiff provided the defendant with proper notice by mailing the notice of acceleration to Joanne Porto (the joint tenant). While it appears that service of a notice upon one tenant in common is not usually regarded as binding upon the others, unless they are engaged in a common enterprise, the rule is different where the relation is that of a joint tenancy. In such a case, it is said that notice to one of them is binding upon all.' 20 Am.Jur.2d, Cotenancy and Joint Ownership § 113 (1995). In Katz v. West Hartford, 191 Conn. 594, 600-01, 469 A.2d 410 (1983), our Supreme Court stated: " In the case of cofiduciaries notice to one is deemed to be notice to the other. American Surety Co. of New York v. McMullen, 129 Conn. 575, 583, 30 A.2d 564 (1943), Foster v. Mix, 20 Conn. 395, 400 (1850). The same rule applies with respect to a joint tenancy. Conrad v. Hawk, 122 Cal.App. 649, 653, 10 P.2d 534 (1932). It also applies to tenants in common who are jointly pursuing the common purpose of selling, leasing or managing their real estate. Bronnenberg v. Indiana Union Traction Co., 59 Ind.App. 495, 499, 109 N.E. 784 (1915). Notice to one of two joint obligors conveys notice to the other with respect to matters affecting the joint obligation. United States v. Fleisher Engineering & Construction Co., 107 F.2d 925, 929 (2d Cir. 1939)." Id. at 603-04 (alternate citations omitted).
The court notes that Theresa's post-trial memorandum makes no mention of the Porto case and therefore contains no analysis of the principle.
Based on this case the court concludes that notice of default and acceleration was sent to Theresa as a joint tenant of the mortgaged property and a joint obligor on the mortgage deed. Judgment of foreclosure may therefore enter against both defendants. A hearing to determine the form of judgment will be held before the undersigned on September 27, 2017 at 9:30 a.m. The plaintiff shall file all necessary documents in advance of the hearing.