CHRISTIANA TRUST, A DIVISION OF WILMINGTONSAVINGS FUND SOCIETY, FSB, TRUSTEE
v.
WALTER J. LEWIS, JR., ET AL.
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
...