Christiana Trust v. Lewis

          Argued May 14, 2018

         Procedural History

         Action to foreclose a mortgage on certain of the named defendant's real property, and for other relief, brought to the Superior Court in the judicial district of Middlesex, where the court, Aurigemma, J., granted the plaintiff's motion for summary judgment as to liability; thereafter, Wilmington Savings Fund Society, FSB, as trustee for Normandy Mortgage Loan Trust, Series 2015-17, was substituted as the plaintiff; subsequently, the court granted the substitute plaintiff's motion for a judgment of strict foreclosure and rendered judgment thereon, from which the named defendant appealed to this court. Reversed; further proceedings.

          Albert L. J. Speziali, with whom, on the brief, was Francis R. Sablone, for the appellant (named defendant).

          Andrea C. Sisca, with whom was Michael J. Jones, for the appellee (substitute plaintiff).

          Jeffrey Gentes filed a brief for the Connecticut Fair Housing Center as amicus curiae.

          Lavine, Moll and Flynn, Js.

          OPINION

          MOLL, J.

         The defendant, Walter J. Lewis, Jr., who is also known as Walter J. Lewis, ^[1] appeals from the judgment of strict foreclosure rendered by the trial court in favor of the substitute plaintiff, Wilmington Savings Fund Society, FSB, doing business as Christiana Trust, as Trustee for Normandy Mortgage Loan Trust, Series 2015-17 (substitute plaintiff). On appeal, the defendant claims that the court improperly rendered summary judgment, as to liability only, in favor of the named plaintiff, Christiana Trust, a Division of Wilmington Savings Fund Society, FSB, as Trustee for Stanwich Mortgage Loan Trust, Series 2012-17 (original plaintiff), because a genuine issue of material fact exists as to whether the signature on the mortgage is his. We agree and reverse the judgment of the trial court.

         The following background is relevant to this appeal. On April 15, 2014, the original plaintiff commenced this foreclosure action against the defendant. In its amended complaint, the original plaintiff alleged the following. On or about September 14, 2005, the defendant executed and delivered a note to First National Bank of Arizona in the principal amount of $500, 000. On that same date, the defendant executed and delivered to Mortgage Electronic Registration Systems, Inc. (MERS), as nominee for First National Bank of Arizona, a mortgage on property located at 21 Brush Hill Road in Clinton (subject property). The mortgage was assigned to Bank of America, N.A., in February, 2012, and thereafter assigned to the original plaintiff. The defendant defaulted on his mortgage payments and failed to cure the default. The original plaintiff elected to accelerate the balance due on the note and to foreclose the mortgage on the subject property.

         On May 19, 2014, the defendant requested to participate in the foreclosure mediation program. The defendant participated in the mediation program, and the parties were unsuccessful in reaching an amicable resolution. On April 9, 2015, the defendant filed an answer and special defenses, as well as a disclosure of defenses. He raised four special defenses: unclean hands, estoppel, fraud, and breach of the covenant of good faith and fair dealing.

         On June 10, 2015, the original plaintiff filed a motion for summary judgment against the defendant as to liability only. In support of its motion, the original plaintiff submitted, inter alia, a copy of the note and the mortgage and an affidavit of Robert Raulerson, a contested foreclosure specialist for the original plaintiff's servicing agent, stating that the original plaintiff is the holder of the note and the mortgage and that the defendant defaulted on his payments. On July 2, 2015, the defendant filed an objection to the motion for summary judgment in which he argued that there was a genuine issue of material fact as to whether the mortgage was valid. He contended that the signature purporting to be his on the mortgage at issue had been forged. He also claimed that the mortgage was recorded on December 18, 2006, more than one year after the mortgage allegedly was executed, i.e., September 14, 2005. In support of his objection, the defendant attached an affidavit in which he stated that he reviewed the mortgage submitted in connection with the motion for summary judgment and that he had not signed the mortgage. He further attested that the attorney who allegedly took his acknowledgement on the mortgage engaged in a fraudulent mortgage scheme in December, 2006, and January, 2007, during which time the mortgage at issue was recorded, was convicted of crimes relating to mortgage fraud and had been suspended from the practice of law.

         On November 6, 2015, the original plaintiff filed a reply to the defendant's objection, essentially arguing that the defendant was precluded from challenging the validity of the mortgage. Specifically, it argued that the defendant filed for chapter 11 bankruptcy in August, 2011, and listed as a creditor in his bankruptcy petition the loan servicer for the mortgage at issue. The original plaintiff also argued that during a meeting of creditors, the defendant had admitted that there was a mortgage on the subject property and that he had retained the attorney whose acknowledgment appeared on the mortgage. It asserted that the foregoing representations constituted judicial admissions that the mortgage was valid.

         On January7, 2016, the court issued its decision granting the original plaintiff's motion for summary judgment, as to liability only, against the defendant. The court first concluded that the defendant had abandoned his special defenses because in his objection he did not dispute the evidence presented by the original plaintiff and contested only the validity of the mortgage. With regard to the validity of the mortgage, the court stated that during the defendant's 2011 bankruptcy proceeding, the defendant made two judicial admissions that the mortgage was valid, and that his affidavit was not sufficient to overcome those binding admissions. The court also reasoned that the defendant's participation in the foreclosure mediation program constituted an implicit recognition of the validity of the mortgage. The court thereupon concluded that the ...