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U.S. Bank N.A. v. Weinstein

Superior Court of Connecticut, Judicial District of Fairfield, Bridgeport

January 31, 2017



          ALFRED J JENNINGS, Judge

         ORDER REGARDING: 08/30/2016 126.00 MOTION FOR SUMMARY JUDGMENT The foregoing, having been considered by the Court, is hereby:


         Plaintiff moved in its Response to strike Defendant's Objection to Motion for Summary Judgment filed at the end of the day on the third day before the Motion for Summary Judgment was scheduled to be argued at short calendar whereas Practice Book § 17-45 at that time before the 2017 Amendments required opposing materials to be filed " at least five days before the date the motion is to be considered on the short calendar." The motion to strike is overruled. Plaintiff has waived any such procedural violation by proceeding with oral argument at short calendar on September 26, 2016 without seeking a continuance or extension of time. Plaintiff's Response (No. 129) was filed on the morning of short calendar.

         There is a threshold issue of the sufficiency under Practice Book § 17-46 of the affidavit in support of this motion for summary judgment signed by KaJay Williams on June 27, 2016 as Document Control Officer of Select Portfolio Servicing, Inc. as attorney-in fact for the plaintiff U.S. Bank National Association, Trustee. Section 17-46 provides, in part: Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." It is undisputed that this mortgage loan transaction occurred on March 28, 2007 when the defendant Jane Proda Weinstein signed a $514, 000 " Interest First Adjustable Rate Note" payable to J.P. Morgan Chase Bank, N.A. secured by an Open End Mortgage Deed in favor of J.P. Morgan Chase Bank, N.A. as recorded in the Fairfield land Records. The plaintiff who commenced this foreclosure case is U.S. Bank National Association as Trustee for J.P. Morgan Mortgage Trust 2007 A. Plaintiff claims that it was the holder of the Note, and in possession of the original Note, endorsed in blank, when this action was commenced in 2014 and that the Mortgage was assigned to plaintiff as trustee by an Assignment of Mortgage from J.P. Morgan Chase Bank, National Association, on February 29, 2012 as recorded in the Fairfield Land Records.

         Since the Affidavit states facts, and attaches documents and correspondence, going back to dates before the commencement of this action and before the Mortgage was assigned to plaintiff, defendant challenges the affidavit as not based on Williams' personal knowledge as a document control officer of plaintiff's servicer.

         The admissibility requirement of Section 17-46 encompasses documents and records admissible under the business records exception under Conn.Gen. Stat. § 52-180 to the general rule on prohibition on hearsay. New England Savings Bank v. Bedford Realty Corporation, 246 Conn. 594, 602 (1998). Section 52-180(b) provides that records " shall not be rendered inadmissible by (1) a party's failure to produce as witnesses the person or persons who made the writing or record, or who have personal knowledge of the act, transaction, occurrence or event recorded or (2) the party's failure to show that such person or persons are unavailable as witnesses. Either of such facts and all other circumstances of the making of the writing or record, including lack of personal knowledge of the entrant or maker, may be shown to affect the weight of the evidence, but not to affect its admissibility" . The Supreme Court in Bedford Realty described the requirements for admissibility under § 52-180:

" The court must determine, before concluding that the document is admissible, that the record was made in the regular course of business, that it was the regular course of such business to make such a record, and that it was made at the time of the act described in the report, or within a reasonable time thereafter. ... The witness introducing the document need not have made the entry himself or herself, nor have been employed by the organization during the relevant time period .... In addition there is no requirement that in § 52-180 that the documents must be prepared by the organization itself to be admissible as that organization's business records." (Internal quotation marks and citations omitted.) Id. 602-3. There is also a requirement that the business record be properly authenticated. The Bedford Court held that a business record may be admitted through the qualifying witness lacks personal knowledge of its provenance:

         " We conclude that a proponent need not establish a chain of custody in order to authenticate a business record .... It is generally held that the business records may be authenticated by the testimony of one familiar with the books and records of the concern, such as a custodian or supervisor, who has not made the record or seen it made, that the offered writing is actually part of the records of the business." Id. 604 In Crest Plumbing and Heating Co. v. DiLoretto, 12 Conn.App. 468 (1987) the issue was the admissibility of records maintained in the file of a construction lender bank, being records prepared by an engineering firm employed by the bank to make inspections and file reports of the progress of a construction project. The reports were held to be admissible as business records of the bank. " All that is required is that it be in the regular course of the business to make the 'writing or record'. We believe that the keeping of a report in a bank's file that serves as a basis of whether the bank will pay out money under a loan agreement satisfies the statutory requirement of 'record' and that such a record could reasonably be found to have been made in the ordinary course of the bank's business." Id. 476 The plaintiff in this case has submitted the Williams affidavit and the copies of documents attached thereto as business records of the plaintiff U.S. Bank National Association, Trustee and not as business records of its predecessor J.P.Morgan Chase Bank, N.A. There is no statement that the affiant's employer Select Portfolio Servicing, Inc. was the servicer of this loan on behalf of J.P. Morgan Chase Bank.

         The affidavit states Mr. Williams is signing the affidavit " on behalf of the Plaintiff as servicing agent the Plaintiff." (Para. 2) He further states that: " Select Portfolio Servicing, Inc. in its capacity as plaintiff's loan servicer, maintains records for the mortgage loan account that is secured by the mortgage loan being foreclosed in this action. As part of my job responsibilities I am familiar with the type of records maintained in connection with this loan, including but not limited to the records reflecting the amounts due on mortgage loan accounts, payment histories, loan histories, servicing records, and default notices ... I am personally familiar with the business records of the plaintiff in connection with the account of the defendant as referenced in the complaint.... The account summary is a record, made as a memorandum of acts, transactions, occurrences and events of this account, which is made in the regular course of business and that it was the regular course of this business to make the writing or record at the time of the act, transaction, occurrence or event or within a reasonable time thereafter." Keeping in mind that § 52-180 should be liberally interpreted in favor of admissibility", Bedford, supra, at 602, citing Bell Food Services, Inc. v. Sherbacow, 217 Conn. 476, 485 (1991), the court finds that the Williams affidavit is based on admissible business records of the plaintiff U.S. Bank National Association, Trustee which include documents and loan histories coming from the files of plaintiff's predecessor J.P. Morgan Chase Bank which became business records of the plaintiff.

         The Williams affidavit and the documents attached thereto, establish beyond any issue of material fact the essential elements of plaintiff's prima facie case for foreclosure of mortgage, namely that plaintiff was the holder at the time this action was commenced of a promissory note signed by the defendant; that the original note was endorsed in blank and in the possession of the plaintiff before this action was commenced; that the note is secured by a mortgage deed of defendant's property; that the plaintiff was the holder by assignment of the mortgage; that the note is in default for failure to make required monthly payments beginning on October 1, 2011 and each and every month thereafter, that a required notice of default was mailed to the defendant and she thereafter failed cure the default, and the balance of the indebtedness has been accelerated by the plaintiff. Defendant's counter affidavit fails to rebut any of those facts. Having so found, it is necessary to determine if the defendant has pleaded facts supporting a valid and sufficient special defense to the plaintiff's claim. Defendant has filed ten special defenses.

         The first special defense alleges that plaintiff was not the holder of the note when this action was commenced. Since plaintiff has established that the note was endorsed in blank and was in plaintiff's possession when the action was commenced, the burden shifts to the defendant to prove that plaintiff was not the holder. RMS Residential v. Miller, 303 Conn.224, 231 (2011). Defendant has submitted no facts or evidence to satisfy that burden.

         The second special defense of unclean hands alleges no supporting facts as required by Practice Book § 10-50. Defendant was unable to state any such facts in response to an interrogatory. The third special defense of failure to give notice of default is insufficient. The Mortgage at Section 15 provides that notice is deemed to have been given when mailed. Plaintiff has submitted proof of mailing and a copy of the default letter. Defendant has pleaded or submitted no facts to the contrary.

         The fourth and fifth special defenses allege rejected or lost payments. Defendant admits in response to discovery requests that she has no records to back up these claims. Furthermore, the amount of indebtedness does not go to the making, validity or enforcement of the note and can be ...

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