Opinion
HHDCV176074843S
10-10-2019
VENTURES TRUST 2013-I-H-R BY MCM CAPITAL PARTNERS, LLP et al. v. Alcide G. MARKIE
UNPUBLISHED OPINION
Dubay, J.
FACTS
In the present foreclosure action, the plaintiff, Wilmington Savings Fund Society, FSB, d/b/a Christina Trust, not individually but as trustee for Hilldale Trust, moves for summary judgment against the defendant, Alcide G. Markie, on the ground that there is no genuine issue of material fact regarding the defendant’s liability under the note. Additionally, the plaintiff argues that the defendant failed to raise a valid special defense under the doctrine of latches. In support of its motion, the plaintiff submitted, inter alia (1) an affidavit from Tres Rodmon, a FC specialist for the plaintiff’s attorney in fact; (2) a copy of the original note; and (3) documents evidencing the chain of assignments of the mortgage, including the Assignment of Mortgage to the plaintiff.
In opposition, the defendant first argues that there is a genuine issue of material fact as to the plaintiff’s status as owner of the note and mortgage, which impacts standing. Second, the defendant argues that laches is a valid special defense because of long periods of inactivity on the plaintiff’s part, which "suggested to me that the foreclosures might not proceed and I acted accordingly by not, for example, making arrangements to move." Moreover, the defendant claims that having to move now would be taxing on him and his wife because they are elderly and in failing health. In support, the defendant submits: (1) his own affidavit; (2) a letter evidencing a $2,000 payment to him in connection with Citibank’s "deficient mortgage servicing and foreclosure processes"; and (3) an order dismissing a prior case against the defendant. For the reasons set forth in the remainder of this memorandum, the plaintiff’s motion for summary judgment is GRANTED.
The defendant also makes cursory mention of the fact that he allegedly attempted to make payments on the mortgage over the years, but his attempts were denied. The affidavit of Tres Rodmon states that the defendant has failed to make monthly mortgage payments "since the payment due for June 1, 2010 and for each and every month thereafter." Other than a conclusory statement in the defendant’s self-serving affidavit, he has not provided any evidence to support his contention. Thus, he has failed to raise a genuine issue of material fact as to this issue. See Home Ins. Co. v. Aetna Life & Casualty Co., 235 Conn. 185, 202, 663 A.2d 1001 (1995) ("It is not enough ... 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 [in support of a motion for summary judgment]" [internal quotation marks omitted]).
DISCUSSION
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the 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. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Bozelko v. Papastavros, 323 Conn. 275, 282, 147 A.3d 1023 (2016). "The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ... and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact ... A material fact ... [is] a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Stuart v. Freiberg, 316 Conn. 809, 821, 116 A.3d 1195 (2015).
"Ordinarily, a [plaintiff’s] motion for summary judgment as to a special defense is improper ... because Practice Book § 17-44 does not provide for summary judgment on special defenses ... A court may consider, however, special defenses if the facts entitle the plaintiff to judgment on the underlying claim and the defenses have no merit." (Citation omitted; internal quotation marks omitted.) Alfred Chiulli & Sons, Inc. v. Hanover Ins. Co., Superior Court, judicial district of Hartford, Docket No. CV-06-5002478 (November 14, 2007, Elgo, J.) (44 Conn.L.Rptr. 519).
A. Standing
"Generally, in order to have standing to bring a foreclosure action the plaintiff must, at the time the action is commenced, be entitled to enforce the promissory note that is secured by the property ... The plaintiff’s possession of a note endorsed in blank is prima facie evidence that it is a holder and is entitled to enforce the note, thereby conferring standing to commence a foreclosure action ... After the plaintiff has presented this prima facie evidence, the burden is on the defendant to impeach the validity of [the] evidence that [the plaintiff] possessed the note at the time that it commenced the ... action or to rebut the presumption that [the plaintiff] owns the underlying debt." (Internal quotation marks omitted.) Citibank, N.A. v. Stein, 186 Conn.App. 224, 243, 199 A.3d 57 (2018), cert. denied, 202 A.3d 373 (2019). "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. Absent that proof, the plaintiff may rest its standing to foreclose on its status as the holder of the note." (Emphasis in original; internal quotation marks omitted.) Id., 244.
Here, the plaintiff’s specialist affirmed that the promissory note has been endorsed in blank. The plaintiff also has possession of the original note, and submitted documents evidencing the chain of assignments, including the Assignment of Mortgage to the plaintiff. This constitutes prima facie evidence that the plaintiff is a holder of the note and is entitled to enforce it, thereby conferring standing to commence a foreclosure action. The defendant has failed to rebut the presumption that the plaintiff owns the underlying debt. The letter evidencing a $2,000 payment to the defendant, in connection with Citibank’s "deficient mortgage servicing and foreclosure processes," is not sufficient to suggest that some other party owns the debt.
B. Laches
"When a complaint and supporting affidavits establish an undisputed prima facie case for a foreclosure action, a court must only determine whether [a] special defense is legally sufficient before granting summary judgment." LaSalle National Bank v. Shook, Superior Court, judicial district of New London, Docket No. CV-00-549266 (July 13, 2000, Martin, J.), aff’d, 67 Conn.App. 93, 787 A.2d 32 (2001). "A valid special defense at law to a foreclosure proceeding must be legally sufficient and address the making, validity or enforcement of the mortgage, the note or both ... Where the plaintiff’s conduct is inequitable, a court may withhold foreclosure on equitable considerations and principles." (Internal quotation marks omitted.) Fidelity Bank v. Krenisky, 72 Conn.App. 700, 705, 807 A.2d 968, cert. denied, 262 Conn. 915, 811 A.2d 1291 (2002).
"Laches consists of two elements. First, there must have been a delay that was inexcusable, and, second, that delay must have prejudiced the defendant ... Lapse of time, alone, does not constitute laches. It must result in prejudice to the defendant as where, for example, the defendant is led to change his position with respect to the matter in question ... or the delay works a disadvantage to another." (Citations omitted; internal quotation marks omitted.) LaSalle National Bank v. Shook, supra, 67 Conn.App. 98-99.
Here, the plaintiff asserts that the defendant cannot establish inexcusable delay. Specifically, it maintains that any delay was due to multiple attempts at loss mitigation. This assertion is in line with the defendant’s allegation, in his special defense and his affidavit, that the mortgage was subject to numerous modification attempts. The defendant further states in his affidavit that (1) a prior foreclosure action was filed in 2011, by a different party, and dismissed for failure to prosecute; and (2) "the current foreclosure has been pending since 2017 with several periods of inactivity on the plaintiff’s part." However, the prior action does not reflect on the propriety of the instant plaintiff’s conduct, and the latter statement does not suggest that there is anything inexcusable about the plaintiff’s alleged inactivity. As such, there is no evidence of inexcusable delay on the plaintiff’s part, and the special defense of laches is not legally sufficient. See id., 99 ("The court determined that the defendants provided no evidence to show that the delay was inexcusable ... Accordingly, there is no evidentiary basis for the defendants’ claim that a genuine issue of material fact existed regarding that issue").
Because the court finds that there is no genuine issue of material fact regarding the first element of laches, it is unnecessary to consider the second element. However, assuming arguendo that the first element was satisfied, there is insufficient evidence to establish that the defendant was prejudiced by any delay. The defendant argues that he has been prejudiced because the long periods of inactivity suggested to him that the foreclosures might not proceed. He also claims that he and his wife are elderly and in failing health, so moving now would be taxing. These conclusory statements, which were provided in a self-serving affidavit, do not establish the existence of a disputed material fact. See Gupta v. New Britain General Hospital, 239 Conn. 574, 583, 687 A.2d 111 (1996) ("The plaintiff’s conclusory statements, in the affidavit and elsewhere ... do not constitute evidence sufficient to establish the existence of disputed material facts"); see also Walker v. Housing Authority, 148 Conn.App. 591, 597, 85 A.3d 1230 (2014) ("[A] nonmoving party’s conclusory affidavits alone are insufficient grounds to deny a motion for summary judgment"). In addition, as the plaintiff points out, the defendant has benefitted from having full use of the property, without making any payments, for the duration of the foreclosure proceedings.
CONCLUSION
For the reasons set forth previously in this memorandum, the plaintiff’s motion for summary judgment is GRANTED.