November 28, 2016
from Superior Court, judicial district of Litchfield,
Danaher, J. [summary judgment as to liability]; J. Moore, J.
[judgment of strict foreclosure].
Richard Lewis, for the appellant (defendant).
Bruce Fair, for the appellee (plaintiff).
Keller, Mullins and Sullivan, Js.
defendant, Christopher N. Schumacher, appeals from the
judgment of strict foreclosure rendered by the trial court in
favor of the plaintiff, 21st Mortgage Corporation. On appeal,
the defendant claims that the court improperly rendered
summary judgment as to liability after finding that there was
no genuine issue of material fact as to whether the plaintiff
is the holder of the note and the party entitled to
foreclose. We affirm the judgment of the trial court.
following facts inform our review. In its complaint, the
plaintiff alleged that the defendant and Patriot Lending
Group, Inc. (Patriot), executed a promissory note in the
amount of $877, 500 on February 28, 2006. The note was
secured by a mortgage on the defendant's Bridgewater
property in favor of Mortgage Electronic Registration
Systems, Inc. (MERS), as nominee for Patriot. The mortgage was
executed on February 28, 2006, and recorded on the
Bridgewater land records on March 7, 2006.
complaint further alleged: (1) the mortgage then was assigned
to GMAC Mortgage, LLC, on October 27, 2009, and the
assignment was recorded on the land records on November 20,
2009; (2) the mortgage ‘‘is to be
assigned'' to the plaintiff by virtue of an
assignment of mortgage ‘‘to be recorded''
on the land records; and (3) the plaintiff is the holder of the
note, the note is in default, and the plaintiff has elected
to accelerate the balance due on the note, declare the note
to be due in full, and to foreclose the mortgage securing the
response, the defendant filed an answer, which, in relevant
part, left the plaintiff to its proof. The defendant also
filed three special defenses, namely, (1) the plaintiff is
not the owner of the debt or the holder of the mortgage, (2)
the plaintiff's claim is based on the fraudulent dealings
of the plaintiff or its assignors, and (3) the
plaintiff's actions are a continuing course of dealing in
violation of the Connecticut Unfair Trade Practices Act,
General Statutes § 42-110b et seq.
November 26, 2014, before filing a responsive pleading to the
defendant's special defenses; see Practice Book §
10-56; the plaintiff filed a motion for summary
judgment as to liability, with a supporting affidavit and a
memorandum of law. In that memorandum, the plaintiff also
attacked each of the defendant's special defenses. After
granting a continuance to the defendant, the court continued
the plaintiff's motion for summary judgment to a short
calendar hearing on May 4, 2015.
April 30, 2015, the defendant filed a motion entitled
‘‘Notice of waiver of oral argument and/or motion
for continuance to hire local counsel.'' In that
motion, the defendant asked for at least a thirty day
continuance, and he requested that the court take the motion
for summary judgment on the papers. It is not clear from the
record whether the court took any action on this motion.
4, 2015, with the defendant not present, the court heard
argument from the plaintiff on the merits of its motion for
summary judgment. On May 26, 2015, the court, in a memorandum
of decision, granted the plaintiff's motion for summary
judgment as to liability, and, on July 20, 2015, it rendered
a judgment of strict foreclosure. This appeal followed.
Additional facts will be set forth as necessary.
defendant claims that the court improperly rendered summary
judgment as to liability in the instant foreclosure action
when there were genuine issues of material fact concerning
the ownership of the note in question. The defendant argues
that the court improperly relied on American Home
Mortgage Servicing Inc., v. Reilly, 157
Conn.App. 127, 132-34, 117 A.3d 500 (2015), because
‘‘[i]n this case, the note was not endorsed
in blank, and, thus, the note was not bearer paper. As
such, the plaintiff was not a holder as that term is defined
in [General Statutes] § 42a-1-201 (b) (21) (A) . . . .
The issue here is not whether the party in possession of a
note endorsed in blank is entitled to enforce the note,
the issue is whether the plaintiff, or some unknown third
party, owns the note.'' (Emphasis in original.)
the defendant argues that, in support of his opposition to
the plaintiff's motion for summary judgment, he submitted
a deposition from a prior foreclosure case between him and
the most recent prior holder of the note, GMAC Mortgage, LLC.
In that deposition, a spokesperson for GMAC Mortgage, LLC,
admitted that there were additional endorsements to this note
and that the note had broken off into two separate branches,
with two different sets of allonges, thereby calling into
question the plaintiff's statusas the holder of the note
and the party entitled to foreclose. He contends that the
missing endorsements raised a genuine issue of material fact
that must be answered and that summary judgment, therefore,
is inappropriate. Although we agree that the defendant has
demonstrated that there may be some discrepancies in the
allonges to the note, we, nevertheless, conclude that the
court properly granted summary judgment.
following additional facts, although somewhat cumbersome, are
necessary to a full understanding of the plaintiff's
claim and our analysis. The plaintiff, in support of its
motion for summary judgment, submitted the November 13, 2014
affidavit of Tiffany Moyer, the legal coordinator for the
plaintiff, attesting that the information contained in her
affidavit was taken from the plaintiff's business
records. She attested that the defendant and Patriot executed
a note in the original amount of $877, 500 and that the
plaintiff, or its agent, has possession of the original note,
the note has been duly endorsed, and a copy is attached to
the affidavit as exhibit A.
also attested that the defendant, on February 28, 2006,
conveyed by mortgage deed his interest in his Bridgewater
property to MERS, as nominee for Patriot, and that this
mortgage deed was recorded on March 7, 2006 in volume 68 at
page 933 in the Bridgewater land records. She attested that
the mortgage deed is attached to her affidavit as exhibit B.
Moyer attested that the mortgage thereafter was assigned to
GMAC Mortgage, LLC, on October 27, 2009, and then to the
plaintiff on May 7, 2010. Copies of those assignments are
attached to her affidavit as exhibit C. She further attested
that the defendant was in default on the note, the plaintiff
had accelerated the note, and the plaintiff was foreclosing
on the mortgage. Interestingly, Moyer made no representations
in her affidavit about the chain of title of the note.
A to Moyer's affidavit is the adjustable rate note
between the defendant and Patriot in the amount of $877, 500,
executed on February 28, 2006, purportedly signed by the
defendant, with several attached allonges. The allonges are
as follows: (1) The first allonge to the note is from Patriot
to the Ohio Savings Bank; it is not dated; (2) on that same
allonge is an endorsement from Ohio Savings Bank to GMAC
Bank; it also is not dated; (3) the next allonge is from Ally
Bank formerly known as GMAC Bank to GMAC Mortgage, LLC,
signed by Brenda Staehle, ‘‘Limited Signing
Officer''; it also is not dated; and (4) the final
allonge is from GMAC Mortgage, LLC, to 21st Mortgage
Corporation ‘‘By: 21st Mortgage Corporation,
it's attorney-in-fact, '' signed by Troy
Fus-sell, vice president and authorized signatory, and
notarized by Michelle A. Wilson on February 14, 2014.
B to Moyer's affidavit is an open-end mortgage deed. The
document provides that the borrower is the defendant and that
MERS is acting as nominee for Patriot. At the very top of the
document are the volume and page numbers for the Bridgewater
land records; page one provides that the document is filed in
volume 068, at page 0933. Approximately one third of the way
down page one, there is a line across the page with a
notation in the middle that provides: ‘‘Space
Above This Line For Recording Data.'' Above that line
the document provides in relevant part: ‘‘After
recording please return to: OHIO SAVINGS BANK ATTN: DOCUMENT
CONTROL'' along with an address.
C to Moyer's affidavit consists of two mortgage
assignments. The first is recorded at volume 075, page 0907
of the Bridgewater land records, and provides that Patriot is
assigning the defendant's mortgage to GMAC Mortgage, LLC.
The assignment is dated October 27, 2009, and is from MERS,
as nominee for Patriot, to GMAC Mortgage, LLC. The assignment
is signed by
Staehle, vice president of MERS. The second assignment is
from GMAC Mortgage, LLC, to 21st Mortgage Corporation. The
assignment is dated May 7, 2014, and is signed by Troy
Fussell, vice president of GMAC Mortgage, LLC.
memorandum of law in support of its motion for summary
judgment, the plaintiff argued that there were no genuine
issues of material fact concerning whether it was the holder
of the note or whether it was entitled to foreclose on the
mortgage due to the defendant's default on the note. The
plaintiff, not having filed a responsive pleading, also
addressed each of the defendant's special defenses,
arguing that they ‘‘are not legally sufficient
and/or they fail to give rise to any genuine issues of
as to the defendant's first special defense, namely, that
the plaintiff is not the owner of the debt or the holder of
the mortgage, the plaintiff contended that it had
‘‘duly demonstrated that there are no genuine
issues of material fact concerning its holdership of the
subject promissory note, which is endorsed in
the defendant's remaining special defenses, the plaintiff
asserted that they failed as a matter of law because they did
not set forth any supporting factual allegations, but,
instead, relied on mere legal conclusions.
February 24, 2015, the defendant filed an objection to the
plaintiff's motion for summary judgment, along with a
memorandum of law and supporting affidavit, with exhibits. In
his memorandum, the defendant argued that there were
important issues of fact concerning the allonges to the note
that were attached to the Moyer affidavit. He contended that
the plaintiff's evidence called into question its
ownership of the debt, the note, and the mortgage, in that
the Moyer affidavit contained discrepancies from the allonges
that were attached to her affidavit, some known allonges were
omitted, many allonges contained no dates, and the allonge
from GMAC Mortgage, LLC, to 21st Mortgage Corporation was not
signed by anyone from GMAC Mortgage, LLC. The defendant also
alleged that the Moyer affidavit raised questions as to the
transfers of the title of the note.
support of his opposition, the defendant also provided his
own affidavit. One of the documents attached to his affidavit
was a January 11, 2012 deposition of Albert Augustine, a
member of the document execution team of GMAC Mortgage, LLC,
taken in a previous foreclosure action instituted by GMAC
Mortgage, LLC, against the defendant. During his deposition,
Augustine reviewed the endorsements to the defendant's
note with Patriot, and he stated that they demonstrated that
the note was assigned to Ohio Savings Bank from Patriot, and
then from Ohio Savings Bank to GMAC Bank, and then from GMAC
Bank to GMAC Mortgage. Heacknowl-edged that the endorsements
were not dated and that he had no idea when ...