Opinion
No. CV05 400 5348
May 2, 2007
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
On January 17, 2006, the plaintiff, Mortgage Electronic Registration Systems, Inc. (Mortgage Electronic), filed a revised complaint for foreclosure against several defendants, including Raymond Goduto. Therein, the plaintiff alleges that it is the holder of a promissory note and mortgage deed executed by Goduto. The plaintiff further alleges that the note and mortgage are in default by virtue of nonpayment, that the unpaid balance of the note is $201,603.79, plus interest, late charges and collection costs, and that it has exercised its option to accelerate the debt. Finally, the plaintiff alleges that Goduto is the owner and possessor of the mortgaged property, located in Shelton, Connecticut. The plaintiff attached to its revised complaint the adjustable rate note, including prepayment and floor rate riders (Exhibit B), as well as the mortgage deed, including adjustable rate and floor rate riders (Exhibit C). The plaintiff filed a motion for summary judgment as to Goduto's liability on April 12, 2006. Goduto led a timely objection, and the matter was heard on short calendar on February 13, 2007, on which date Goduto also filed an answer and special defenses.
During the short calendar, counsel for Goduto indicated that although Goduto originally raised three special defenses to the foreclosure action, his only remaining argument pertains to the notices of default and acceleration. As in the present case, "when the terms of the note and mortgage require notice of default, proper notice is a condition precedent to an action for foreclosure." (Internal quotation marks omitted.) Emigrant Mortgage Corp. v. D'Agostino, 94 Conn.App. 793, 800, 896 A.2d 814, cert. denied, 278 Conn. 919, 901 A.2d 43 (2006). Goduto argues that in light of Bank of America, F.S.B. v. Hanlon, 65 Conn.App. 577, 783 A.2d 88 (2001), the notices of default in the present case were improper, in that they failed to provide Goduto with thirty days to cure the default, as required by the terms of the mortgage documents. In Hanlon, the Appellate Court concluded that "where a notice of default requires 'not less than' a specific number of days, the period is calculated by excluding the date notice issues and including the last day given to cure the default . . . Therefore, the relevant period begins on the day after the date of the notice and ends at midnight on the last day." Id., 583-84. Because the plaintiff in the present case mailed the notice of default on September 12, 2005, Goduto argues that pursuant to Hanlon, he should have been granted until October 13, 2005. The plaintiff, however, afforded Goduto until 2 p.m. on October 12, 2005, to cure the default. According to Goduto, therefore, this renders insufficient the first notice of default. He argues that the second notice of default suffers from the same insufficiency, having been mailed on October 17, 2005, and having granted Goduto until 2 p.m. on November 16, 2005.
The logical extension of this proposition suggests that where the terms of the relevant documents also require notice of acceleration, proper notice of such also becomes a condition precedent. In the present case, the mortgage deed provides that the "Lender shall give notice to Borrower prior to acceleration following Borrower's breach of any covenant or agreement in this Security instrument . . ." This provision continues to specify the required content of such notice. Nevertheless, in construing similar language, the Appellate Court has concluded that the notice of acceleration and the notice of default need not he separate documents. Northeast Savings, F.A. v. Scherban, 47 Conn.App. 225, 228, 702 A.2d 659 (1997), cert. denied, 244 Conn. 907, 914 A.2d 2 (1998). The court in Scherban further found that "the notice of default satisfied the notice requirement contained in the note because it notified the defendants of the default and the possibility of acceleration." Id. See also Greenpoint Mortgage Corp. v. Ruisi, Superior court, judicial district of Danbury, Docket No. CV 010343201 (September 14, 2004, Richards, J.). The relevant language in the note in the present case is identical to that at issue in Scherban. Accordingly, the plaintiff has satisfied the requirements regarding the notice of acceleration.
Although the Hanlon court discusses midnight on the last law day as theoretical termination of the period in which the borrower may cure the default, it went on to state that "[f]or practical purposes, the period . . . ended at the close of business" on the last law day. Bank of America, F.S.B. v. Hanlon, supra, 65 Conn.App. 584 n. 5.
Contrary to Goduto's position, however, and despite Hanlon, both notices in the present case complied with the terms of the mortgage documents. "It is always competent for parties to contract as to how notice shall be given, unless their contract is in conflict with law or public policy. Stratton v. Abington Mutual Fire Ins. Co., 9 Conn.App. 557, 562, 520 A.2d 617, cert. denied, 203 Conn. 807, 525 A.2d 522 (1987)." (Internal quotation marks omitted.) Derby Savings Bank v. Hilton, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 96 0056606 (February 14, 1997, Curran, J.). "Moreover, the words [in the deed] are to be given their ordinary popular meaning, unless their context, or the circumstances, show that a special meaning was intended." (Internal quotation marks omitted.) Emigrant Mortgage Corp. v. D'Agostino, supra, 94 Conn.App. 799.
The mortgage deed in the present case specifically provides: "Any notice to Borrower in connection with this Security Instrument shall be deemed to have been given to Borrower when mailed by first class mail . . ." Thus, whereas Hanlon calculated the effective notice date in reference to "the date notice issues"; Bank of America, F.S.B. v. Hanlon, supra, 65 Conn.App. 584; the mortgage deed in the present case definitively establishes the date upon which notice is deemed given. In particular, the date of mailing constitutes the first countable day of the cure period. Goduto does not dispute that the notices were mailed by first class mail on September 12, 2005, and October 17, 2005, respectively. The plaintiff, therefore, complied with the terms of the mortgage documents in both instances, by affording Goduto thirty days in which to cure the default. Because the plaintiff has satisfied the conditions precedent regarding notice, and because Goduto no longer challenges the sufficiency of the evidence as to the other elements of a proper foreclosure action, this court grants the plaintiff's motion for summary judgment as to Goduto's liability.