Superior Court of Connecticut, Judicial District of Waterbury, Waterbury
Wells Fargo Bank, N.A.
James Costello et al
MEMORANDUM OF DECISION RE MOTION TO DISMISS
H. TAYLOR, J.
plaintiff, Wells Fargo Bank, N.A., filed this action to
foreclose the defendant's mortgage on October 19, 2015.
The defendant, James Costello, is a self-represented
litigant. He filed this motion to dismiss on May 27, 2016, in
which he asserts that the plaintiff does not possess or own
the mortgage note and that it, therefore, lacks standing to
foreclose his mortgage. In addition, Costello asserts that
the plaintiff failed to provide prior notice of its intent to
accelerate the mortgage note. For these reasons, Costello
concludes that this court lacks jurisdiction. The court held
an evidentiary hearing on the defendant's motion to
dismiss on August 5, 2016.
upon the evidence presented to the court, although the
plaintiff has sufficiently shown that it has standing, the
defendant has sufficiently rebutted the plaintiff's claim
of proper notice of default, which is a condition precedent
to this action. The motion to dismiss is therefore granted.
plaintiff presented the original mortgage note for inspection
by the defendant and the court at the hearing. The face
amount of mortgage note is $42, 213 with an annual interest
rate of 6.75 percent. The original lender was Wells Fargo
Home Mortgage, Inc. The court found that the note was signed
by the defendant and endorsed in blank by the original
lender. The mortgage deed was similarly presented and found
to be signed and witnessed. The plaintiff additionally
supplied evidence of a merger on May 4, 2004 between Wells
Fargo Home Mortgage, the original lender, and Wells Fargo
Bank, N.A., the plaintiff in this case. The plaintiff also
provided evidence and sworn testimony that these original
mortgage documents were in the possession of the
plaintiff's law firm on March 9, 2015, prior to the
initiation of this action to foreclose the defendant's
of a mortgage note endorsed in blank, as established here,
creates a presumption that the plaintiff has the right to
enforce the mortgage. J.E. Robert Co., Inc. v. Signature
Properties, LLC., 309 Conn. 307, 324-25, 71 A.3d 492
(2013). To this presumption, there has been no factual
rebuttal by the defendant. Based upon the evidence presented,
the court concludes that the plaintiff has standing in this
action to foreclose the defendant's mortgage.
is a substantial issue of fact between the parties regarding
the proper delivery of a notice of default to the defendant
together with the plaintiff's notice of intent to
accelerate the mortgage note, as required by the mortgage
deed. " It is well established that [n]otices of default
and acceleration are controlled by the mortgage
documents." Fidelity Bank v. Krenisky, 72
Conn.App. 700, 706, 807 A.2d 968, cert. denied, 262 Conn.
915, 811 A.2d 1291 (2002). In reviewing the language of these
documents, although paragraph 6c of the mortgage note appears
to be permissive on the question of notice, paragraph 22 of
the mortgage deed clearly requires notice of default prior to
acceleration. Because " proper notice of acceleration is
a necessary condition precedent to an action for
foreclosure"; Citicorp Mortgage, Inc. v. Porto,
41 Conn.App. 598, 603, 677 A.2d 10 (1996); the resolution of
this question is material to the dismissal of this action.
is no substantial dispute between the parties regarding the
following facts: A notice of default and acceleration, along
with other required notices (notice) was mailed by the
plaintiff, using the U.S. Postal Service's (USPS)
certified mail program, return receipt requested. The notice
specifically states the arrearage owed and is accompanied by
a demand for payment of the delinquency on or before May 14,
2015, consistent with the requirements of the mortgage deed.
The evidence shows that the notice was dated April 9, 2015.
Soon thereafter, on April 18, 2015, the USPS delivered the
notice at the defendant's home address, located at 408
Bar Harbor Road, Stratford. Exhibit F, Plaintiff's
plaintiff offers no further evidence of delivery or actual
notice to the defendant and rests, instead, upon the "
mailbox rule, " through which there is a presumption of
delivery. Pursuant to the mailbox rule, the burden shifts to
the defendant to present evidence to rebut this presumption.
Echavarria v. National Grange Mutual Ins. Co., 275
Conn. 408, 418, 880 A.2d 882 (2005).
defendant rebuts the mailbox rule presumption with two forms
of evidence. First, in his sworn affidavit, the defendant
denies receipt of the notice. Affidavit paragraph 17,
Defendant's Reply. Although " [a] mere denial of
receipt is insufficient to rebut the presumption that mail
was received." Volikas v. Kmart, Superior
Court, judicial district of Ansonia-Milford, Docket No.
CV-01-0076466-S, (January 12, 2004, Robinson, J.), the
defendant's affidavit and exhibits provide further
evidence that an individual other than the defendant signed
the certified mail receipt for the notice. The defendant
attests to the fact that, upon conducting research at the
Stratford USPS office, he obtained a copy of the return
receipt with the same tracking number, which is signed by a
person unknown to him, named Kevin Lavery. This evidence was
supplied in the defendant's reply to the plaintiff's
objection to the motion to dismiss. The reply was filed on
July 11, 2016, the date originally set down for the hearing
on this motion to dismiss. The plaintiff was granted a
continuance to review the defendant's reply, and the
court set a specially assigned date for an evidentiary
hearing, approximately three weeks later on August 5, 2016.
response to the defendant's evidence, the plaintiff has
produced no contradictory evidence showing that the defendant
had legal notice of the default and acceleration of his
mortgage. Although the defendant is certainly aware of the
default now, and may very well have been aware of it on April
9, 2015, the contract between the parties requires notice and
an opportunity to cure a mortgage delinquency prior to
acceleration and, thereafter, foreclosure. The defendant was
present at the hearing but was not called as a witness to be
examined by the plaintiff and so that the court could assess
his credibility. Although it is often said that common sense
does not take flight at the courthouse door, it should not
allow mere speculation to ...