Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

U.S. Bank, National Association v. Fitzpatrick

Superior Court of Connecticut, Judicial District of Fairfield, Bridgeport

September 21, 2017

U.S. Bank, National Association as Trustee for MASTR2007-2
v.
Christopher Fitzpatrick et al.

          MEMORANDUM OF DECISION ON PLAINTIFF'S MOTION TO STRIKE COUNTERCLAIM (NO. 118) AND DEFENDANTS' OBJECTION THERETO (NO. 122)

          Alfred J. Jennings, Jr., Judge Trial Referee.

         The defendant in this foreclosure action Christopher Fitzpatrick has filed a counterclaim against the plaintiff which alleges that he, the defendant, ceased making payments as required by the Note and Mortgage beginning on May 1, 2009 and has been in default of payment continuously since that date. He further alleges that the plaintiff accelerated the remaining balance of the debt following the May 1, 2009 default, and the remaining unpaid principal balance plus interest, attorneys fees and costs were declared immediately due and owing to the plaintiff Defendant further alleges that he has remained in undisturbed possession of the property since May 1, 2009 and for six years preceding the commencement of this counterclaim, and that the property is presently encumbered by the undischarged mortgage. Under those circumstances defendant claims he is entitled to a decree of discharge of plaintiff's mortgage under Conn. Gen. Stat. § 49-13(a) which provides in relevant part:

When the record title to real property is encumbered (1) by any undischarged mortgage, and (A) the mortgagor or those owning the mortgagor's interest therein have been in undisturbed possession of the property for at least six years after the expiration of the time limited in the mortgage for the full performance of the conditions thereof, and for six years next preceding the commencement of any action under this section . . . the person owning the property, or the county in the property, may bring a petition to the superior court for the judicial district in which the property is situated, setting forth the facts and claiming a judgment as provided in this section.

         The issue between the parties goes to the statutory temporal limit " . . . at least six years after the expiration of the time limited in the mortgage for the full performance of the conditions thereof." The counterclaiming defendant takes the position that the six year possession period commenced on or about May 1, 2009 when the plaintiff accelerated the debt. The plaintiff takes the position that the phrase " time limited in the mortgage for the full performance thereof" refers to the stated maturity date in the secured Note and the Mortgage Deed which in this case is September 1, 2037. Since the defendant has not, and could not possibly at this time, plead that he had been in undisturbed possession of the property for at least six years after September 1, 2037, plaintiff asks the court to strike the Section 49-13 counterclaim. In addition to filing this counterclaim in this mortgage foreclosure case against him, the defendant Christopher Fitzpatrick had filed a separate Petition in this court in 2015 seeking a discharge of this same mortgage under § 49-13 on identical allegations and claims and seeking the same relief as made in this counterclaim. That separate action is styled Christopher Fitzpatrick v. U.S. Bank, N.A., Trustee, FBT CV15-6050335S (the " Prior Action" ) The defendant in the Prior Action, U.S. Bank, Trustee moved to strike the Petition filed in the Prior Action, which Motion was granted by the court (Kamp, J.). On November 23, 2015 in a comprehensive Memorandum of Decision citing prior Superior Court authority, Judge Kamp agreed with the position of U.S, Bank, N.A., Trustee and granted its motion to strike the complaint petitioning for a discharge of the mortgage under § 49-13. Fitzpatrick v. United States Bank, N.A., Superior Court, Judicial District of Fairfield at Bridgeport, Docket No. FBT CV15-6050335 (November 23, 2015, Kamp, J.), [61 Conn.L.Rptr. 287, 2015 WL 9242410] (" Under the plaintiff's interpretation of § 49-13(a), a defendant who elects the remedy of acceleration to cure a plaintiff's default under a mortgage contract would cause the time limited in a mortgage for its full performance to change from the date of final payment to the acceleration date as a matter of law. Such an interpretation would flout the well-recognized principle that '[t]he terms a [a] mortgage determine [a bank's] right to foreclose the mortgage' and, by extension, to elect remedies in the event of a borrower's default." ) Judgment thereafter entered for the defendant U.S. Bank, Trustee in the Prior Action under Practice Book § 10-44 when the plaintiff failed to file a substitute complaint. The plaintiff appealed to the Appellate Court. The Appellate Court recently issued its ruling and opinion affirming Judge Kamp's ruling. Fitzpatrick v. U.S. Bank N.A., 173 Conn.App. 686, 164 A.3d 832, 2017 WL2362070, June 6, 2017. The Appellate Court concluded: " After our plenary review of § 49-13(a)(1)(A) we conclude that the phrase 'time limited in the mortgage for the full performance of the conditions thereof' clearly and unambiguously refers to the maturity date specified in the mortgage, which the defendants argue is the appropriate date, and not the acceleration date, which the plaintiff argues is the appropriate date . . . If the legislature agreed with the plaintiff's argument that a mortgagee's decision to accelerate a debt advances a mortgage's maturity date to the date of acceleration, it would have included such a provision within the statute." 173 Conn.App. at 692.

         The Appellate Court ruling is binding precedent on this court on the exact issue now before the court. It is also binding on Christopher Fitzgerald and U.S. Bank, National Association, Trustee under the doctrines of res judicata/collateral estoppel. Accordingly, the plaintiff's Motion to Strike the defendants' counterclaim seeking a discharge of ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.