Opinion
CV136020939S
11-07-2016
Deutsche Bank National Trust Company, TTEE v. Anna DeFranco
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
PETER EMMETT WIESE, JUDGE.
I
Procedural History
The plaintiff commenced this foreclosure case through its complaint dated May 29, 2013. The named defendants were Anna DeFranco and JP Morgan Chase Bank, National Association. Id. The real property is identified in the complaint as being located at 225 Ox Yoke Drive in Berlin, Connecticut (" Property"). In a pleading dated January 21, 2014, defendant DeFranco responded to the complaint with her answer, nine special defenses, and counterclaim. (No. 120.) In a motion dated January 24, 2014, the plaintiff moved the court to default defendant JP Morgan Chase Bank, National Association for failure to appear. (No. 118.) This motion was granted by order dated February 4, 2014. (No. 118.01.)
In a motion dated May 15, 2014, the plaintiff moved the court to strike defendant DeFranco's nine special defenses and counterclaim. (No. 131.) In memorandum of decision dated July 31, 2014, the court (Shortall, J.) ordered stricken the first, second, third, fifth, sixth and ninth special defenses and counterclaim. (No. 131.02.) The motion to strike was denied as to the seventh and eighth special defenses.
Thereafter, in an order dated December 17, 2015, the court (Shortall, J.) sanctioned defendant DeFranco and ordered the remaining two special defenses stricken. (No. 183.02.)
A trial was held on the matter on March 18, 2016. The parties presented testimony and a number of exhibits. Thereafter, they filed post-trial briefs.
In an order dated June 29, 2016, the court instructed the plaintiff to file with the court a supplemental affidavit of debt which set forth the itemized and detailed calculation and supporting documentation for the claimed damages which were included in plaintiff's trial exhibit 13, paragraph 14. (No. 211.) The order provided that a hearing would be held on the affidavit if requested by the defendant no later than August 15, 2016. The defendant requested a hearing.
In an order dated June 29, 2016, the court instructed the plaintiff to file an amended affidavit in support of its claim for attorneys fees. (No. 210.) The order required that the affidavit be documented with contemporary time records which set forth the identity of the attorney, the hourly rate, service performed and date of service. The order provided that a hearing would be held on the affidavit if requested by August 15, 2016. The defendant requested a hearing.
The plaintiff filed with the court supplemental served affidavits. A number of them were ordered sealed because they contained personally identifiable information. A redacted affidavit of debt was filed with the court on September 14, 2016. (No. 220.)
This document has been marked as Exhibit 13A.
A hearing was held on the supplemental affidavits of debt and attorneys fees on October 20, 2016. The parties appeared and presented oral argument. They requested the opportunity to present brief additional written argument in support of their respective positions. The court granted the request and has reviewed the documents filed.
II
Discussion
A. Facts
The court finds the following facts from the credible evidence presented at trial.
1. The property which is the subject of this foreclosure action is located at 225 Ox Yoke Drive in Berlin, Connecticut. It is an eight-room, single-family, colonial-style dwelling. The home sits on a lot which is .49 acres in size. There is a two-car attached garage. (Plaintiff's Exhibit 14.)
2. An appraisal of the property was performed using a comparable sales approach. (Plaintiff's Exhibit 14.) This appraisal was performed by a state of Connecticut licensed appraiser. Effective February 17, 2016, the fair market value of the land is $125,280 and the fair market value of the structure is $222,720. The total value is $348,000. The appraisal fee charged was $350. Id.
3. On August 9, 2005, defendant DeFranco signed a note in the principal amount of $315,000, and on that same date executed an open-end mortgage deed for the property to secure the note. (Plaintiff's Exhibits 1, 2, 3.)
The mortgage was recorded on the town of Berlin, Connecticut land records. Pursuant to the terms of the note, defendant DeFranco was obligated to make principal and interest payments on the first day of each month commencing on October 1, 2005, and each month thereafter, until the maturity date of September 1, 2035. The monthly payments were $2043.08. The note specified that interest rate was fixed at a yearly rate of 6.75 percent. (Plaintiff's Exhibits 1, 2.)
The note provided that upon default the borrower was responsible for the " costs and expenses in enforcing . . . [the]note to the extent not prohibited by applicable law. Those expenses include, for example, reasonable attorneys fees." Id., para. 6. (E).
4. The mortgage was assigned on June 4, 2007, by Mortgage Electronic Registration Systems, Inc., as nominee for Netbank to Deutsche Bank National Trust Company as Trustee under the Pooling and Servicing Agreement Series ITF Rast 2005-A15. (Plaintiff's Exhibit 4.)
5. On July 8, 2009, the mortgage was reassigned by Deutsche Bank as Trustee under the Pooling and Servicing Agreement Series ITF Rast 2005-A15 to the plaintiff. (Plaintiff's Exhibit 5.) The original collateral file, including the original note, was deposited into the plaintiff's inventory on October 13, 2005. (Plaintiff's Exhibit 24.)
On March 15, 2007, the documents were released to a mortgage servicer known as Indy Mac Mortgage Services (One West). Id. On March 21, 2007, the documents were released by the plaintiff's former legal counsel and, on November 25, 2014, they were received by its present counsel. Id. The plaintiff is the holder of the note and mortgage deed.
6. Defendant DeFranco made payments on the note through Indy Mac Mortgage Services. (Plaintiff's Exhibit 6.) Through notice dated October 16, 2013, the defendant was informed that service responsibilities were transferred to Ocwen Loan Servicing, LLC. (Plaintiff's Exhibit 7.)
7. The last payment made on the note was one received on June 6, 2008. (Plaintiff's Exhibit 6.) This payment was applied to moneys owed for March, April and May 2007. The note has been in default since June 1, 2007.
8. Through notice dated March 29, 2013, Indy Mac notified defendant DeFranco of the default. (Plaintiff's Exhibit 9.) The notification informed her that the payment necessary to cure the default was $201,938.96. This default has not been cured.
9. The successor loan servicer, Ocwen, has not received any payments on the loan obligations. (Plaintiff's Exhibit 8.) It provided the defendant with a payoff quote valid through March 30, 2016, with a claimed total amount of $583,947.58. This amount included the claimed principal, interest, and disbursements. (Plaintiff's Exhibit 11.)
10. The debt owed on default is $566,014.41, not including attorneys fees. (Plaintiff's Exhibit 13, a Supplemental Affidavit of Debt (No. 220).)
This amount is calculated in the following manner: Principal Balance--$309,259.97; Interest--$186,078.14; Escrow Advance--$61,936.67; Property Inspection--$807.50; Appraisal--$350; Recording Fee--$43; Title Search--$225 General Statutes § 52-257(b)(4).
11. A federal loan mitigation affidavit, dated May 3, 2013, was completed. (Plaintiff's Exhibit 10.)
B. Applicable Law
Foreclosure
" A plaintiff establishes its prima facie case in a mortgage foreclosure action by demonstrating by a preponderance of the evidence that it is the owner of the note, that the defendant mortgagor has defaulted on the note, and that conditions precedent to foreclosure have been satisfied." (Footnote omitted.) Deutsche Bank National Trust Co. v. Bliss, 159 Conn.App. 483, 495, 124 A.3d 890, cert. denied, 320 Conn. 903, 127 A.3d 186 (2015).
General Statutes § 42a-3-301 provides in relevant part that a " [p]erson entitled to enforce an instrument means . . . the holder of the instrument . . ." (Internal quotation marks omitted.) " [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 [e]ndorsed 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.) Equity One, Inc. v. Shivers, 310 Conn. 119, 135, 74 A.3d 1225 (2013).
The presumption that the foreclosing party is the rightful owner of the debt " may be rebutted by the defending party, but the burden is on the defending party to provide sufficient proof that the holder of the note is not the owner of the debt, for example, by showing that ownership of the debt had passed to another party. It is not sufficient to provide that proof, however, merely by pointing to some documentary lacuna in the chain of title that might give rise to the possibility that some other party owns the debt. In order to rebut the presumption, the defendant must prove that someone else is the owner of the note and debt. Absent that proof, the plaintiff may rest its standing to foreclose on its status as the holder of the note." (Emphasis in original; footnote omitted.) U.S. Bank National Ass'n v. Schaeffer, 160 Conn.App. 138, 150, 125 A.3d 262 (2015).
Attorneys Fees
" Connecticut case law follows the general rule, frequently referred to as the American Rule, that attorneys fees are not allowed to the prevailing party as an element of damages unless such recovery is allowed by statute or contract . . . General Statutes § 52-249(a) succinctly and unambiguously provides for the allowance of attorneys fees in actions for foreclosure of mortgages or liens." (Footnote omitted; internal quotation marks omitted.) Atlantic Mortgage & Investment Corp. v. Stephenson, 86 Conn.App. 126, 132, 860 A.2d 751 (2004).
General Statutes § 52-249(a) provides: " The plaintiff in any action of foreclosure of a mortgage or lien, upon obtaining judgment of foreclosure, when there has been a hearing as to the form of judgment or the limitation of time for redemption, shall be allowed the same costs, including a reasonable attorneys fee, as if there had been a hearing on an issue of fact. The same costs and fees shall be recoverable as part of the judgment in any action upon a bond which has been substituted for a mechanic's lien."
In East Windsor v. East Windsor Housing, Ltd., 150 Conn.App. 268, 278, 92 A.3d 955 (2014), the court concluded that " the trial court was not bound by the agreement reached by the parties in its determination of reasonable attorneys fees. It is the court, and not the parties, that decides the reasonableness of attorneys fees."
C. Analysis
In the present case, the plaintiff has proven by a preponderance of the evidence that the defendant has defaulted on the note, and that the plaintiff is the holder of the note and the mortgage deed. Because the plaintiff is the holder of the note, it is presumed to be the owner of the debt, and unless the presumption is rebutted by the defendant, it may foreclose the mortgage.
Here, the defendant argues that the plaintiff is a stranger to the claimed transaction, and that the underlying transaction was never with NetBank, the named lender. Nevertheless, the defendant has failed to offer any proof, such as a written document or witness testimony, that shows that the plaintiff is not the owner of the note and debt, as is required to rebut the presumption that the plaintiff is the owner, and that it may foreclose. In order to rebut the presumption, the defendant must affirmatively prove that someone else is the owner of the note and debt, rather than merely pointing to evidence that might indicate that there is a possibility that another party owns the debt.
The defendant's remaining arguments have been previously raised, in some form, by special defense. All of the defendant's special defenses have, however, previously been stricken by the court (Shortall, J.). The defendant may not properly raise a defense at trial.
The defendant also contends that the assignment of the mortgage of 2007 was prepared in anticipation of litigation, and is worthless. The defendant has previously raised this argument as a special defense, and the court (Shortall, J.) has sanctioned the defendant by striking the special defense. For example, the defendant further argues that the plaintiff is not aggrieved by any act or failure to act by the defendant, and that there is nothing that the defendant could do that would result in any remedy for the plaintiff. In addition, the defendant argues that there is a lack of consideration. The court (Shortall, J.) has previously addressed these arguments when they were first raised as special defenses, and the court has stricken the special defenses because the " concepts of aggrievement, consideration, and taking for value and in good faith . . . might have bearing on a collection matter but are immaterial to a mortgage foreclosure."
Thus, the plaintiff has standing and has proven its entitlement to foreclose on the loan, and the defendant does not have any available or applicable defenses. Therefore, the court grants the judgment of strict foreclosure as against the defendant. A law day is set for Monday, December 5, 2016, for the owner of the equity of redemption, and subsequent days for subsequent encumbrancers in the inverse order of their priorities.
The plaintiff has proven its entitlement to reasonable attorneys fees. The court finds that, based upon the record presented, a reasonable attorneys fee is $21,000.00. This amount brings the total debt to $579,700.28.
The plaintiff shall file its bill of costs on or before December 5, 2016.
SO ORDERED.