Opinion
HHDCV176083000S
12-03-2018
VANDERBILT MORTGAGE AND FINANCE, INC. v. Vincent CACCAMO et al.
UNPUBLISHED OPINION
OPINION
Dubay, J.
The issue presented is whether the court should grant the plaintiff’s motion for summary judgment as to the defendants’ liability for default on a note secured by a mortgage on the property in question.
FACTS
On October 10, 2017, the plaintiff, Vanderbilt Mortgage and Finance, Inc. (Vanderbilt), filed a complaint against the defendants, Vincent Caccamo and Shannon Ficacelli, alleging the following facts. By virtue of a quitclaim deed dated December 30, 2014, and recorded on January 7, 2015, Caccamo and Ficacelli became the owners of real property in Marlborough, Connecticut (property). On or about November 12, 2014, Caccamo executed and delivered a note for a loan on the property to Plaza Home Mortgage, Inc. (Plaza). On or about the same date, Caccamo also executed and delivered a mortgage on the property to secure the note to Mortgage Electronic Registration Systems, Inc. as nominee for Plaza. By virtue of an assignment of the mortgage dated February 4, 2016, this mortgage was later assigned to Vanderbilt. Vanderbilt is currently the holder of the note that is now in default.
The complaint also alleges that Caccamo is the only defendant named on the note, but together, the defendants are the owners of the equity of redemption of the property and have failed to cure the defect on the note. The note and mortgage were late modified on January 31, 2017, by a loan modification agreement between Caccamo and Vanderbilt. Vanderbilt has elected to accelerate the balance due on the note and has caused a lis pendens to be recorded on the land records of the town of Marlborough. On July 17, 2018, Ficacelli filed an answer and special defenses.
Another mortgage assigned by Housing and Urban Development was also taken out on the property.
On July 19, 2018, Vanderbilt filed a motion for summary judgment as to liability for the loan’s default against Caccamo and Ficacelli. Ficacelli filed an objection to the plaintiff’s motion for summary judgment on August 9, 2018, on the ground that there are genuine issues of material fact surrounding liability for the alleged defect on the note. Vanderbilt filed a reply to Ficacelli’s objection on September 13, 2018, asserting that there are no genuine issues of material fact concerning liability and objecting to the validity of the special defenses Ficacelli raised. Arguments on the motion were heard at short calendar on September 17, 2018.
On May 2, 2018, Ficacelli filed a cross complaint seeking a partition of sale of the property. On June 29, 2018, Vanderbilt responded to the cross complaint stating that a partition of sale would increase the cost in this matter and yield the same foreclosure result. Vanderbilt also asserted two special defenses. First, Vanderbilt asserted that its mortgage is in first lien position, giving it priority over all claims of the defendants in this action. Second, Vanderbilt asserts that no equity will remain for the cross claim plaintiff after the first and second mortgage are paid. In HUD’s answer to the cross claim, HUD claims a second priority position after Vanderbilt’s. See Def.’s Answer and Special Defense, Entry No. 113.
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." (Internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534, 51 A.3d 367 (2012). "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 ..." (Internal quotation marks omitted.) U.S. Bank, N.A. v. Foote, 151 Conn.App. 620, 632, 94 A.3d 1267, cert. denied, 314 Conn. 930, 101 A.3d 952 (2014). "A summary judgment ... may be rendered on the issue of liability alone." Practice Book § 17-50.
In its motion for summary judgment, Vanderbilt argues that there are no genuine issues of material fact concerning the defendants’ liability for the default on the note. Thus, since the defendants have failed to cure the defect on the note, Vanderbilt properly accelerated the loan and is entitled to summary judgment as to the defendants’ liability for the money owed. In her objection to the motion for summary judgment, Ficacelli argues that there are genuine issues of material fact as to each defendant’s liability for the default. Ficacelli also raises two special defenses, lack of consideration and unconscionability, which she asserts remain unresolved. "In order to establish a prima facie case in a mortgage foreclosure action, the plaintiff must prove by a preponderance of the evidence that it is the owner of the note and mortgage, that the defendant mortgagor has defaulted on the note and that any conditions precedent to foreclosure, as established by the note and mortgage, have been satisfied ... Thus, a court may properly grant summary judgment as to liability in a foreclosure action if the complaint and supporting affidavits establish an undisputed prima facie case and the defendant fails to assert any legally sufficient special defense." (Internal quotation marks omitted.) Bayview Loan Servicing, LLC. v. Park City Sports, LLC, 180 Conn.App. 765, 775, 184 A.3d 1277, cert. denied, 330 Conn. 901, 192 A.3d 426 (2018). "If the plaintiff has made out its prima facie case, the motion for summary judgment will be granted unless at least one of the special defenses is valid." (Internal quotation marks omitted.) FEC Enterprises, LLC v. Lin Mare, LLC, Superior Court, judicial district of Hartford, Docket No. CV-15-6060522-S (February 5, 2018, Dubay, J.).
Caccamo has not filed any objection to the motion for summary judgment. The defendants are individually represented.
In the present case, Vanderbilt has submitted evidence showing that there is no genuine issue of material fact as to its ownership of the note and mortgage, and that the note is in default. In Wells Fargo Bank, N.A. v. Strong, 149 Conn.App. 384, 403, 89 A.3d 392, cert. denied, 312 Conn. 923, 94 A.3d 1202 (2014), our Appellate Court held that [t]he plaintiff met its burden of proving that it was entitled to summary judgment as to liability and established an undisputed prima facie case by submitting copies of (1) the note with an attached allonge indorsed in blank, (2) the mortgage, (3) the two assignments of mortgage, and (4) the notice of default, as well as an affidavit attesting to the plaintiff’s status as holder of the note and owner of the debt at all relevant times." Likewise, in the present matter, Vanderbilt has submitted a copy of: (1) the note, Pl.’s Mot. Summ. J. Ex. A; see also Pl.’s Mot. Summ. J. Ex. 2, (stating that "note contains an endorsement in blank and three additional allonges leading to Note being endorsed in blank"); (2) the mortgage, Pl.’s Mot. Summ. J. Ex. B; (3) the assignment of the mortgage to Vanderbilt, Pl’s Mot. Summ. J. Ex. C; (4) the notice of default, Pl.’s Mot. Summ. J. Ex. E, as well as an affidavit stating that Vanderbilt is the holder of the note and is entitled to enforce the note and mortgage. See Pl.’s Mot. Summ. J. Ex. 2. In Exhibit H, Vanderbilt provides a copy of the quitclaim deed to Shannon Ficacelli stating that Ficacelli received a one-half interest in the property subject to Caccamo’s interest. See Pl.’s Mot. Summ. J. Ex. H.
The court next considers whether the note was actually in default at the time the action was brought. See U.S. Bank v. Foote, supra, 151 Conn.App. 632 ("appellate courts in this state have held that burden is satisfied when mortgagee includes in its submissions to the court sworn affidavit averring that the mortgagee is holder of promissory note in question at time it commenced action ..."). The plaintiff’s Exhibit 2 is an affidavit by Nakia Martin, who attests to personal knowledge of how the books and records of Vanderbilt are kept, stating that Vanderbilt is the current holder of the note and that the note is in default. See Pl.’s Mot. Summ. J. Ex. 2. Though the court notes that Ficacelli is not being held personally liable for the note’s debt, her interest in the property was not taken free and clear of the obligations of the terms of Vanderbilt’s mortgage, and the property securing the note is subject to foreclosure in its entirety. Ficacelli does not present any evidence contesting that the note is in default in her motion for summary judgment. See Def’s Obj. Mot. Summ. J.
Caccamo is the only defendant who is named on both the note and the mortgage. Vanderbilt has provided sufficient evidence demonstrating that there is no genuine issue of material fact that Caccamo executed both documents, which therefore evidences his liability as to the same.
First, Ficacalli objects to the motion on the ground that there are genuine issues of material fact surrounding Ficacelli’s liability by virtue of her cross claim, which alleges that she owns a one-half unencumbered interest in the property. General Statutes § 47-36f provides in relevant part: "[A] ‘Quitclaim Deed’ ... has the force and effect of a conveyance to the releasee of all the releaser’s right, title and interest in and to the property described therein ..." Thus, because Caccamo’s interest in the property at the time of the execution of the quitclaim deed was already subject to Vanderbilt’s mortgage, any interest Ficacelli took in the property at the time of the quitclaim was also taken subject to Vanderbilt’s mortgage. See General Statues § 47-36f. As such, Ficacelli’s interest in the property does not supersede Vanderbilt’s interest, and her interest in the property is subject to Vanderbilt’s mortgage as a matter of law by virtue of the properties of a quitclaim deed. See General Statues § 47-36f.
In HUD’s answer to Ficacelli’s cross claim, HUD claims a second priority position after the plaintiffs. See Def.’s Answer to Cross Claim, Entry No. 113. Thus, whether there is a priority dispute between Ficacelli and HUD does not create a genuine issue of material fact as to Caccamo and Ficacelli’s liability to Vanderbilt.
Second, Ficacelli claims that Vanderbilt’s mortgage interest has been subordinated by the loan modification agreement which was executed and recorded after the property had been quitclaimed to her. "[O]ur courts have determined that conduct occurring during loan modification negotiations ... does not give rise to a valid counterclaim or special defense in a foreclosure action unless such conduct affects the making, validity, or enforcement of the original note or mortgage." FEC Enterprises, LLC v. Lin Mare, LLC, supra, Superior Court, Docket No. CV-15-6060522-S. In the present action, the loan modification agreement did not meet these conditions or change the order of priority interests.
Third, in her objection to the motion, Ficacelli argues that a genuine issue of material fact remains as to Caccamo’s liability because he has not yet pleaded in the present action, nor has he been subject to default. In Darin v. Cais, 161 Conn.App. 475, 480, 129 A.3d 716 (2015), however, our Appellate Court held that a trial court is not obligated to apprise a self-represented litigant of the need to submit documents in opposition to a motion for summary judgment. See also Practice Book § 17-45. Pursuant to Practice Book 17-32(a), "[w]here a defendant is in default for failure to plead pursuant to Section 10-8, the plaintiff may file a written motion for default which shall be acted on by the clerk ..." (Emphasis added.) Thus, under these circumstances, a motion for default is not mandatory. See Id. Following, the pleadings need not be closed before a court may act on a motion for summary judgment. See Emmerson v. Super 8 Motel-Stamford, 59 Conn.App. 462, 469, A.2d 651 (2000) (opposing plaintiff’s viewpoint that court should not take action on motion for summary judgment before pleadings were closed and stating that language of Practice Book § 17-44 allows for any party to move for summary judgment at any time, except that party must obtain judicial authority’s permission to file motion for summary judgment after case has been assigned for trial); see also Deutsche Bank National Trust Co. v. Shivers, 136 Conn.App. 291, 294-96, 44 A.3d 879, cert. denied, 307 Conn. 938, 56 A.3d 950 (2012) (failure to file answer and special defenses did not strengthen defendant’s opposition to summary judgment in foreclosure action pending two years). Moreover, a motion for summary judgment after default is not appropriate. See, e.g., Ciccarello v. Cahill, Superior Court, judicial district of Middlesex, Docket No. 65497 (August 26, 1992, Higgins, J.) (7 Conn.L.Rptr. 263) ("where defendants have been defaulted, ... Practice Book provides separate procedure for plaintiff to move for judgment").
"General Statutes § 52-119 provides that [p]arties failing to plead according to the rules and orders of the court may be ... defaulted ... Section 10-18 of our rules of practice essentially mirrors that language." (Citation omitted, internal quotation marks omitted.) People’s United Bank v. Bok, 143 Conn.App. 263, 268, 70 A.3d 1074 (2013)."[T]he effect of a default is to preclude the defendant from making any further defense in the case so far as liability is concerned ..." Practice Book § 17-33(b).
Fourth, Ficacelli argues that the motion for summary judgment cannot be granted because Vanderbilt has not filed a demand for disclosure of defenses, nor has Vanderbilt conducted discovery. As to the disclosure of defenses, Practice Book § 13-19 states in relevant part: "In any action to foreclose ... in which there is an appearance by an attorney for any defendant, the plaintiff may at any time file and serve ... a written demand ... [for] a writing signed by the attorney stating whether he or she has reason to believe ... that there exists a bona fide defense to the plaintiff’s action ..." (Emphasis added); see also First New Haven National Bank v. Rowan, 2 Conn.App. 114, 116, 476 A.2d 1079 (1984) (indicating that Practice Book § 13-19 is inapplicable to pro se parties, court held that because defendants in case were not represented by counsel, disclosure of defense was correctly expunged). Accordingly, as to discovery, Practice Book § 13-2 states in relevant part: "In any civil action ... where the judicial authority finds it reasonably probable that evidence outside the record will be required, a party may obtain ... discovery of information or disclosure ..." (Emphasis added.) Thus, the suggestive language of the Practice Book does not mandate the disclosure of defenses or discovery.
Fifth, Ficacelli asserts that Caccamo would be denied a hearing to present his arguments if the court granted the motion for summary judgment. On November 11, 2017, Ficacelli’s attorney filed an appearance on behalf of Ficacelli only. Caccamo is a pro se litigant, and therefore, neither Ficacelli nor her attorney can assert arguments on Caccamo’s behalf. See Expressway Associates II v. Friendly Ice Cream Corp. of Connecticut, 34 Conn.App. 543, 546, 642 A.2d 62, cert. denied, 230 Conn. 915, 645 A.2d 1018 (1994) ("Any person who is not an attorney is prohibited from practicing law, except that any person may practice law, or plead in any court of this state ‘in his own cause.’ The authorization to appear pro se is limited to representing one’s own cause, and does not permit individuals to appear pro se in a representative capacity." [Citation omitted.]) Thus, this argument is not properly before the court.
The last argument Ficacelli makes in her objection to Vanderbilt’s motion is that there are genuine issues of material fact as to the two special defenses she raised: (1) lack of consideration and (2) unconscionability. See Def.’s Obj. Mot. Summ. J. p. 9-14. For a special defense to be valid, it must relate to the "making, validity, or enforcement" of the note or mortgage. Bank of America, N.A. v. Groton Estates, LLC, Superior Court, judicial district of New London, Docket No. CV-09-960016970-S (July 13, 2010, Devine, J). "Where the plaintiff’s conduct is inequitable, a court may withhold foreclosure on equitable considerations and principles ... [O]ur courts have permitted several equitable defenses to a foreclosure action." Id.
"Lack of consideration is on its face a valid defense in a foreclosure action." (Internal quotation marks omitted.) Thomas v. Lieberman, Superior Court, judicial district of Stamford-Norwak, Docket No. CV-99-0171052-S (July 5, 2001, Adams, J.). In the current case, however, Ficacelli does not have standing to assert lack of consideration as to the mortgage or the note because she is not a party to the mortgage’s terms. She received an interest in property that was already subject to the mortgage by way of a quitclaim deed, but she was never a party to either the mortgage or note agreements. Thus, although Ficacelli is not being held personally liable for the mortgage, as she was not a party to its execution, the property in which she owns an interest remains subject to said mortgage. Accordingly, Ficacelli has failed to submit any evidence demonstrating that lack of consideration eliminates Vanderbilt’s cause of action.
General Statutes § 47-36g provides in relevant part: "[A] ‘Quitclaim Deed’ has the force and effect of a conveyance to the release of all the relasor’s right, title and interest in and to the property described therein ..." Ficacelli took her one-half ownership interest in the property pursuant to whatever interest and obligations Caccamo had including Vanderbilt’s debts.
See Wells Fargo Bank, N.A. v. Strong, supra, 149 Conn.App. 401, discussing standing to bring a claim as a non-party. "It is well settled that one who [is] neither a party to a contract nor a contemplated beneficiary thereof cannot sue to enforce the promises of the contract ... Under this general proposition, if the plaintiff is neither a party to, nor a contemplated beneficiary of, [the] agreement, she lacks standing to bring her claim for breach of [contract]." (Internal quotation marks omitted.) Id.
Similarly, Ficacelli has failed to present any evidence showing that unconscionability is a bar to Vanderbilt’s cause of action. "The purpose of the doctrine of unconscionability is to prevent oppression and unfair surprise ... As applied to real estate mortgages, the doctrine of unconscionability draws heavily on its counterpart in the Uniform Commercial Code ... As Official Comment 1 to § 2-302 of the Uniform Commercial Code suggests, [t]he basic test is whether, in the light of the general commercial background and the commercial needs of the particular trade or case, the clauses involved are so one-sided as to be unconscionable under the circumstances existing at the time of the making of the contract ... Unconscionability is determined on a case-by-case basis, taking into account all of the relevant facts and circumstances." (Internal quotation marks omitted.) Emigrant Mortgage Co., Inc. v. D’Agostino, 94 Conn.App. 793, 802, 896 A.2d 814, cert. denied, 278 Conn. 919, 901 A.3d 43 (2006). Ficacelli has provided no evidence that the terms of the mortgage or note were one sided and therefore are unconscionable. Without such evidence, the doctrine of unconscionability does not eliminate Vanderbilt’s cause of action.
CONCLUSION
For the foregoing reasons, the court grants the plaintiff’s motion for summary judgment as to the defendants’ liability for the defaulted note on the ground that there is no genuine issue of material fact concerning the same, and Ficacelli has failed to present evidence of any genuine issues of material fact.