Opinion
HHDCV146049428S
03-22-2018
GREEN TREE SERVICING, LLC v. Timothy HUGHES et al.
UNPUBLISHED OPINION
OPINION
Dubay, J.
The plaintiff, Green Tree Servicing LLC, commenced this action in foreclosure against the defendants, Timothy and Norma Hughes, on March 10, 2014. Presently before the court is the plaintiff’s motion for summary judgment as to liability on all counts of the amended complaint. The eight-count amended complaint seeks foreclosure of the defendants’ property interests in 288 Rood Avenue in the town of Windsor, on the basis of the following theories: (1) Foreclosure; (2) Unjust Enrichment; (3) Equitable Mortgage; (4) Equitable Subrogation; (5) Equitable Subordination; (6) Mistake; (7) Reformation; and (8) Ratification. In their answers, the defendants admit that they jointly own the subject property, and deny that Norma was aware of the existence of this mortgage, leaving the plaintiff to its proof as to all remaining allegations.
" In Connecticut, an action is commenced when the writ, summons and complaint have been served upon the defendant." Rocco v. Garrison, 268 Conn. 541, 553, 848 A.2d 352 (2004).
I. FACTS
The plaintiff’s complaint alleges the following facts. On June 22, 2005, Timothy Hughes executed and delivered to Countrywide Homeloans, Inc., a note for a loan in the original principal amount of $175,500 (2005 mortgage). The mortgage was recorded on June 27, 2005, in the Town of Windsor land records. On November 23, 2009, the mortgage was assigned to BAC Home Loans Servicing, L.P., who later assigned the 2005 mortgage to the plaintiff in this action. The plaintiff is the holder of the note.
The mortgage has been in default since July 1, 2013, prompting the plaintiff to commence this action in foreclosure. The property is also encumbered by various liens, including a lis pendens filed by the plaintiff.
The defendants’ joint ownership is recorded on the deed to the property. Prior to the execution of the 2005 mortgage, the defendants were jointly liable on two mortgages simultaneously executed on January 22, 2003. The first mortgage was with America’s Wholesale Lender; the second was with Countrywide Bank (prior mortgages). The prior mortgages were jointly executed by Timothy and Norma Hughes.
In 2005, Timothy Hughes unilaterally applied for the 2005 mortgage, which is the subject of this action. At the closing, the mortgage was executed solely in the name of Timothy Hughes, and the proceeds paid off the balances owed towards the prior mortgages. After payment, the prior mortgages were released.
In this foreclosure action, the plaintiff seeks to foreclose on the entire property, but is presently unable to do so as the property is jointly owned by Timothy and Norma Hughes, yet the note and mortgage were executed solely in the name of Timothy Hughes. In effect, the circumstances permit the plaintiff to foreclose only upon Timothy Hughes’ one-half interest in the property. Because Norma Hughes is not named on the mortgage, her one-half interest is not encumbered by the 2005 mortgage, or any mortgage. The plaintiff, therefore, seeks a number of equitable remedies, the granting of which would permit it to foreclose on Norma’s one-half interest, thereby allowing foreclosure on the entire property. On September 6, 2017, the plaintiff filed its motion for summary judgment as to liability on all counts of the complaint. The motion is accompanied by a memorandum of law, a sworn affidavit, and several exhibits. In support of its motion, the plaintiff argues that Norma jointly executed, and was personally liable towards, the prior mortgages. At the time that the 2005 mortgage was executed, a substantial benefit was bestowed upon Norma, because the sums owed on the prior mortgages, to which she was obligated, were satisfied by the payments disbursed by the plaintiff’s predecessor in interest at the time the 2005 mortgage was executed.
The plaintiff argues that Norma further benefitted from the 2005 mortgage when she claimed the interest deduction on her tax returns. Lastly, the plaintiff argues that Norma’s conduct in making payments from the parties joint checking account towards the 2005 mortgage demonstrates her awareness of, and intention to be liable towards, the mortgage presently existing in Timothy’s name only. On October 19, 2017, the defendants filed their memorandum in opposition, along with sworn affidavits. The plaintiff replied on October 26, 2017. The parties appeared at short calendar on November 27, 2017, to argue their respective positions.
II. DISCUSSION
" Summary judgment is a method of resolving litigation when 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 ... The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried ... However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury ... the moving party for summary judgment is held to a strict standard ... of demonstrating his entitlement to summary judgment." (Citation omitted; footnote omitted; internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Corm. 523, 534-35, 51 A.3d 367 (2012).
" In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ... As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ... When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ... Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ... It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact ... are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book [§ 17-45] ..." (Internal quotation marks omitted.) State Farm Fire & Casualty Co. v. Tully, 322 Conn. 566, 573, 142 A.3d 1079 (2016). " The movant has the burden of showing the nonexistence of such issues but the evidence thus presented, if otherwise sufficient, is not rebutted by the bald statement that an issue of fact does exist ... To oppose a motion for summary judgment successfully, the nonmovant must recite specific facts ... which contradict those stated in the movant’s affidavits and documents." (Internal quotation marks omitted.) Bank of America, N.A. v. Aubut, 167 Conn.App. 347, 358, 143 A.3d 638 (2016).
A. Count one: Foreclosure
" [A] mortgagee that seeks summary judgment in a foreclosure action has the evidentiary burden of showing that there is no genuine issue of material fact as to any of the prima facie elements, including that it is the owner of the debt. Appellate courts in this state have held that [the evidentiary burden of establishing ownership of the note] is satisfied when the mortgagee includes in its submissions to the court a sworn affidavit averring that the mortgagee is the holder of the promissory note in question at the time it commenced the action." (Internal quotation marks omitted.) American Home Mortgage Servicing, Inc. v. Reilly, 157 Conn.App. 127, 133, 117 A.3d 500, cert. denied, 317 Conn. 915, 117 A.3d 854 (2015).
" [U]nder our law, the note holder 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 [evidence] 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 [endorsed in blank] 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 ... If the defendant rebuts the presumption that the plaintiff was the owner of the debt at the time that the action commenced, then the burden would shift back to the plaintiff to demonstrate that the owner has vested it with the right to receive the money secured by the note." (Citation omitted; footnote omitted; internal quotation marks omitted.) Id., 133-34.
In the present case, the defendants have made no attempt to rebut the presumption that the plaintiff is both the holder of the note, and the owner of the debt towards the 2005 mortgage. The defendants also do not dispute that the note is in default. Accordingly, the plaintiff’s motion for summary judgment is granted in part as to count one, limiting summary judgment only as to Timothy Hughes. The court declines to grant summary judgment as to count one against Norma Hughes, because, under the circumstances, her interest cannot be foreclosed upon since she is not a party to the 2005 mortgage.
B. Count Two: Unjust Enrichment
Unjust enrichment is a common-law principle of restitution; a noncontractual means of recovery without a valid contract. BHP Land Services, LLC v. Seymour, 137 Conn.App. 165, 169, 47 A.3d 950, cert. denied, 307 Conn. 927, 55 A.3d 569 (2012). The doctrine of " unjust enrichment relates to a benefit of money or property ... and applies when no remedy is available based on the contract ... The lack of a remedy under a contract is a precondition to recovery based on unjust enrichment ..." Id.
" [A] claim for unjust enrichment has broad dimensions. Unjust enrichment applies wherever justice requires compensation to be given for property or services rendered under a contract, and no remedy is available by an action on the contract ... A right of recovery under the doctrine of unjust enrichment is essentially equitable, its basis being that in a given situation it is contrary to equity and good conscience for one to retain a benefit which has come to him at the expense of another ... With no other test than what, under a given set of circumstances, is just or unjust, equitable or inequitable, conscionable or unconscionable, it becomes necessary in any case where the benefit of the doctrine is claimed, to examine the circumstances and the conduct of the parties and apply this standard ... Unjust enrichment is, consistent with the principles of equity, a broad and flexible remedy ... Recovery [under unjust enrichment] is proper if the defendant was benefitted, the defendant did not pay for the benefit and the failure of payment operated to the detriment of the plaintiff." (Internal quotation marks omitted.) Id., 169-70.
The following additional facts are relevant to this motion. At the time that Timothy Hughes applied for the 2005 mortgage, he consulted the lender’s representative about how to best complete his application. See Entry # 136, Plaintiff’s Exhibit 9, p. 53. Upon advising the lender’s representative of Norma’s poor credit rating, the lender’s representative directed Timothy Hughes to state that the property was owned solely by him, and to apply for the mortgage in his name only. See Entry # 136, Plaintiff’s Exhibit 9, p. 53 and 68. The settlement statement produced by the lender to Timothy Hughes at the time of closing reflects that the lender charged him for the costs associated with conducting a title search, and for the cost of title insurance. See Entry # 136, Plaintiff’s Exhibit 5C and 7, p. 2. The title search put the plaintiff’s predecessor in interest on both actual and constructive notice that the property was jointly owned by both Timothy and Norma Hughes, and that the mortgage, as executed, would not encumber one hundred percent of the property. See Entry # 136, Plaintiff’s Exhibit 5C and 7, p. 2.
In the present case, there is no remedy available under the contract as to the one-half interest of Norma Hughes, as Norma is not a party to the 2005 mortgage. Whether Norma has benefitted from the transaction, and whether such benefit was unconscionable or unjust are issues of fact to be determined at trial. For the foregoing reasons, summary judgment as to count two is denied.
C. Count Three: Equitable Mortgage
" An equitable mortgage may be constituted by any writing from which the intention to create a lien on specific real property as security for a debt is shown. Such a mortgage may arise by (1) an attempt to create a mortgage, though imperfectly executed; (2) by an agreement to charge described property as security for money advanced; and (3) where the plaintiff advanced the sum of money to the defendant on the condition that the defendant would execute and deliver a mortgage and defendant failed to do so." (Citation omitted; internal quotation marks omitted.) Nelson v. Catalano, Superior Court, judicial district of Hartford, Docket No. CV030824431 (April 3, 2007, Salter, J.T.R.) (43 Conn.L.Rptr. 788, 790), accord Bank of America, N.A. v. Bertocki, Superior Court, judicial district of Hartford, Docket No. CV-09-5025960-S (May 22, 2012, Robaina, J.).
In determining whether an equitable mortgage exists, " the situation and course of conduct of the parties and all the surrounding circumstances are to be considered." Arvee Construction Co. v. Ardolino, 144 Conn. 7, 11, 127 A.2d 39 (1956), accord HSBC Bank SA, National Association v. D’Agostino, Superior Court, judicial district of Stamford, Docket No. CV-09-6002754-S (May 21, 2015, Mottolese, J.T.R.). " [T]he essential fact given rise in equity to what is called an equitable mortgage is the lending of money or giving of credit in reliance upon the agreement that the property involved be security for such loan or debt." (Internal quotation marks omitted.) Nelson v. Catalano, supra, 43 Conn.L.Rptr. 790, accord Saxon Mortgage Services, Inc. v. Aguinaldo, Superior Court, judicial district of Stamford, Docket No. CV-09-5011567-S (June 8, 2010, Mintz, J.).
The plaintiff argues that the 2005 mortgage was imperfectly executed, because not all parties that were intended to be obligated under its terms had signed the relevant documents. The plaintiff further argues that Timothy Hughes deliberately misled the lender, and that the terms of the mortgage clearly provide that it was the lender’s intention for the mortgage to be secured by the entire property, and not a portion of it. For the court to hold otherwise, would constitute the plaintiff having provided financing based on a mortgage for the entire property, but only receiving the legal interest in half of it, a result that is inequitable and contrary to the parties’ intent.
The defendants counter that Timothy Hughes did not mislead the mortgage lender with his statements in his application, but was directed to make his statements by the mortgage lenders representative. The defendants further argue that while it may have been Timothy’s intention to create a mortgage on the property, the plaintiff has not presented evidence demonstrating that Norma intended to do so. The defendants maintain that Norma had no intention of creating a mortgage at the time the 2005 mortgage was executed, and had no knowledge of it, thereby presenting a genuine issue of material fact.
Pursuant to the prevailing authority, the court concludes that a writing is required to establish an equitable mortgage. In the present case, no such writing between Norma Hughes and the lender exists. The only writing presented to the court is the 2005 mortgage executed by Timothy Hughes and the plaintiff’s predecessor in interest. Moreover, there is no evidence in the record demonstrating that this mortgage was imperfectly executed. Simply because Norma Hughes is joint owner of the property does not mean that she was a party to this mortgage. See Bank of America, NA. v. Bertocki, supra, Superior Court, Docket No. CV-09-5025960-S. The facts and circumstances in this action fail to satisfy the necessary elements of equitable mortgage, because there was never a writing between the lender and Norma Hughes, and the record demonstrates that neither the lender nor Timothy Hughes intended for the Norma Hughes to be signatory to the transaction. See HSBC Bank SA, National Association v. D’Agostino, supra, Superior Court, Docket No. CV-09-6002754-S. Accordingly, summary judgment is denied as to count three.
D. Count Four: Equitable Subrogation
" The doctrine of equitable subrogation provides an exception to the first in time, first in right rule and has been applied in certain limited circumstances to rearrange the priorities of parties in a case ... The object of [equitable] subrogation is the prevention of injustice ... Where fairness and justice require, one who advances money to discharge a prior lien on real or personal property and takes a new mortgage as security is entitled to be subrogated to the rights under the prior lien against the holder of an intervening lien of which he was ignorant ... Equity always looks to the substance of a transaction and not to mere form." (Citations omitted; internal quotation marks omitted.) Equicredit Corp. of Connecticut v. Kasper, 122 Conn.App. 94, 98, 996 A.2d 1243 (2010).
The plaintiff argues that the doctrine of equitable subrogation was created to remedy fact patterns such as this one. Norma was and is a joint owner of the property. The mortgages satisfied by the lender were the first and second mortgages, to which Norma was obligated, and had priority to Norma’s interest in the property. The plaintiff’s predecessor in interest satisfied those mortgages to the defendants’ benefit without incurring any new liability on Norma’s behalf. The interests of equity dictate that the plaintiff should step into the position of the prior mortgages and hold a priority lien position.
In response, the defendant argues that the very nature and purpose of the doctrine limits its application to competing lien holders. Norma is not a lien holder, but a fee owner, and, therefore, the doctrine is inapplicable here.
This issue was examined amongst similar circumstances in the matter of HSBC Bank SA, National Association v. D’Agostino, supra, Superior Court, Docket No. CV-09-6002754-S. In that case, one spouse applied solely for a mortgage loan in order to lock in a lower interest rate, despite the fact that both spouses jointly owned the property. Thereafter, the loan was executed in the name of one spouse only. The loan later went into default, and the lender commenced foreclosure proceedings. Similar to the present case, the lender in D’Agostino was never ignorant of the other spouse’s one-half interest in the property, and the court noted that application of the principle requires ignorance of the competing interest. Id. Additionally, the D’Agostino court noted that the plaintiff failed to cite any authority " in which this doctrine has been applied to and between a mortgagee and the owner of a fee simple interest; nor can it because the doctrine simply does not apply." Id.
See Section II(B) of this OPINION’s discussion of actual and constructive notice.
Pursuant to the prevailing authority, this doctrine is intended for application to the interests of competing lien holders. In the present case, Norma Hughes is not a lien holder, but a fee owner, rendering the doctrine inapplicable in these circumstances. Accordingly, the motion for summary judgment is denied as to count four.
E. Count Five: Equitable Subordination
" Equitable subordination is distinctly a power of federal bankruptcy courts, as courts of equity, to subordinate the claims of one creditor to those of others ... This broad equitable power to disallow and reorder claims, first announced in bankruptcy case law ... and now codified in the Bankruptcy Code at 11 U.S.C. § 510(c) (1988), derives from the Bankruptcy Court’s role as administrator of the debtor’s estate for the equal benefit of all creditors ..." (Citations omitted; internal quotation marks omitted.) HBE Leasing Corp. v. Frank, 48 F.3d 623, 634 (2d Cir. 1995). accord Bank of America, N.A. v. Bertocki, Superior Court, Docket No. CV-09-5025960-S.
In the present case, the court declines to extend the doctrine of equitable subordination to Norma Hughes’ one-half interest in the property for the simple reason that this action is an action in foreclosure, and the doctrine of equitable subordination is intended for application in a bankruptcy context. See Bank of America, N.A. v. Bertocki, supra, Superior Court, Docket No. CV-09-5025960-S (declining to apply doctrine of equitable subordination outside of a bankruptcy context). Accordingly, summary judgment is denied as to count five.
F. Count Six: Mistake
" The legal concept of ‘mistake’ is similar to the legal concept of ‘misrepresentation’ in that, under each, a party to a contract may be relieved from his obligations if he was unaware of certain material facts ... A mutual mistake is one that is common to both parties and effects a result that neither intended ... Whether there has been such mistake is a question of fact ... Questions of fact are subject to the clearly erroneous standard of review ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed ... Because it is the trial court’s function to weigh the evidence and determine credibility, we give great deference to its findings." (Citations omitted; emphasis in original; internal quotation marks omitted.) McBurney v. Cirillo, 276 Conn. 782, 815-16, 889 A.2d 759 (2006), overruled on other grounds by Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 914 A.2d 996 (2007).
In the present case, whether the facts and circumstances amount to a legal mistake is a question of fact. " In ruling on a motion for summary judgment, the court’s function is not to decide issues of material fact ... but rather to determine whether any such issues exist." (Internal quotation marks omitted.) RMS Residential Properties, LLC v. Miller, 303 Conn. 224, 233, 32 A.3d 307 (2011). " [I]ssue-finding, rather than issue-determination, is the key to the procedure ... [T]he trial court does not sit as the trier of fact when ruling on a motion for summary judgment." (Internal quotation marks omitted.) DiMiceli v. Cheshire, 162 Conn.App. 216, 222, 131 A.3d 771 (2016). Given that the court must make a specific factual finding as to whether a legal mistake exists, the issue is unsuitable for determination on a motion for summary judgment. Accordingly, this task is best reserved for the trier of fact, and summary judgment is denied as to count six.
G. Count Seven: Reformation
" A cause of action for reformation of a contract rests on the equitable theory that the instrument sought to be reformed does not conform to the real contract agreed upon and does not express the intention of the parties and that it was executed as the result of mutual mistake, or mistake of one party coupled with actual or constructive fraud, or inequitable conduct on the part of the other ... Reformation is not granted for the purpose of alleviating a hard or oppressive bargain, but rather to restate the intended terms of an agreement when the writing that memorializes that agreement is at variance with the intent of both parties ... Equity evolved the doctrine because an action at law afforded no relief against an instrument secured by fraud or as a result of mutual mistake ... The remedy of reformation is appropriate in cases of mutual mistake that is where, in reducing to writing an agreement made or transaction entered into as intended by the parties thereto, through mistake, common to both parties, the written instrument fails to express the real agreement or transaction ... In short, the mistake, being common to both parties, effects a result which neither intended." (Internal quotation marks omitted.) Deutsche Bank National Trust Co. v. Perez, 146 Conn.App. 833, 838-39, 80 A.3d 910 (2013), appeal dismissed, 315 Conn. 542, 109 A.3d 452 (2015).
" [T]here can be no reformation unless there is an antecedent agreement upon which the minds of the parties have met. The relief afforded in reforming an instrument is to make it conform to the previous agreement of the parties. Therefore a definite agreement on which the minds of the parties have met must have pre-existed the instrument in question. The court cannot supply an agreement which was never made, for it is its province to enforce contracts, not to make or alter them." Id., 839.
" A court in the exercise of its power to reform a contract must act with the utmost caution and can only grant the relief requested if the prayer for reformation is supported by convincing evidence ... In the absence of fraud, it must be established that both parties agreed to something different from what is expressed in writing, and the proof on this point should be clear so as to leave no room for doubt ... If the right to reformation is grounded solely on mistake, it is required that the mistake be mutual, and to prevail in such a case, it must appear that the writing, as reformed, will express what was understood and agreed to by both parties ... A party seeking the reformation of a contract must show proof justifying reformation by clear, substantial and convincing evidence, meaning evidence that induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, [and] that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist." (Citation omitted; internal quotation marks omitted.) Id., 839-40.
" In exercising its equitable power of reformation, a court is limited to correcting mistakes in a written instrument so that the writing conforms with the true agreement and intent that existed between the actual parties to that agreement. The court generally does not have the power to add a party to a contract or [to] substitute parties to a contract ... This is because someone who was not involved in the formation of an agreement could not have reached a ‘meeting of the minds’ that would conflict with the writing memorializing the intended agreement, and, therefore, there could not be any mistake amenable to reformation." (Citation omitted; internal quotation marks omitted.) Id., 842.
In the present case, the plaintiff does not seek to cure a technical defect in the memorialization of the transaction, but to add Norma Hughes as a party to the contract, and bind her one-half interest in the property to the terms of the mortgage. For the court to exercise its power of reformation, clear, substantial and convincing evidence must be presented demonstrating that the parties intended for Norma Hughes to be a signatory to this transaction. The evidence, however, demonstrates that Norma was not involved in the transaction, nor did the parties intend for her involvement given her poor credit history. For this reason, the lender’s representative advised Timothy Hughes to apply for the mortgage solely in his own name. See Entry # 136, Plaintiff’s Exhibit 9, Deposition of Timothy Hughes, p. 53.
Moreover, the evidence in the record demonstrates that the contract terms intended by the parties were the same terms which were executed. Norma Hughes did not participate in the formation of this agreement, and, therefore, could not have reached the requisite " meeting of the minds" that would conflict with the writing memorializing the intended agreement of the parties. For the court to order reformation of the contract in the present case, would, in effect, supply an agreement which was never made. Accordingly, there is no basis in law to ratify this agreement, and the plaintiff’s motion for summary judgment is denied as to count seven.
H. Count Eight: Ratification
" As a general rule, Notification is defined as the affirmance by a person of a prior act which did not bind him but which was done or professedly done on his account ... Ratification requires acceptance of the results of the act with an intent to ratify, and with full knowledge of all the material circumstances ... In order to ratify the unauthorized act of an agent and make it effectual and obligatory upon the principal, the general rule is that the ratification must be made by the principal with a full and complete knowledge of all the material facts connected with the transaction to which it relates ... Since ratification in a given case depends ultimately upon the intention with which the act or acts, from which ratification is claimed, were done, and since intention is a mental fact and its finding clearly one of fact, the finding in a given case of ratification is one of fact." (Internal quotation marks omitted.) Parnoff v. Yuille, 139 Conn.App. 147, 165, 57 A.3d 349 (2012), cert. denied, 307 Conn. 956, 59 A.3d 1192 (2013).
The prevailing authority deems the finding of ratification in any given case to be an issue of fact, which is unsuitable for determination on a motion for summary judgment. Accordingly, this task is best reserved for the trier of fact, and the court denies summary judgment as to count eight.
III. CONCLUSION
The plaintiff’s motion for summary judgment as to liability is granted in part as to count one, but limited only to the one-half property interest of Timothy Hughes. Summary judgment is denied. as to counts two, three, four, five, six, seven and eight.