U.S. Bank, National Association v. Fitzpatrick

         Argued January 30, 2019

         Appeal from the  Superior Court, Judicial District of Fairfield, Truglia, J.

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          Ryan P. Driscoll, with whom, on the brief, was Richard J. Buturla, Milford, for the appellant (named defendant).

         Jeffery M. Knickerbocker, for the appellee (plaintiff).

         DiPentima, C.J., and Alvord and Eveleigh, Js.

         OPINION

         DiPENTIMA, C.J.

         [190 Conn.App. 775] The defendant Christopher M.

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Fitzpatrick ^[1] appeals from the denial of his motion to dismiss and from the summary judgment rendered in favor of the plaintiff, U.S. Bank, National Association, as trustee for MASTR 2007-2. On appeal, the defendant claims that the court improperly (1) denied his motion to dismiss by concluding that the plaintiff had standing to commence and maintain its foreclosure action and (2) granted the plaintiff’s motion for summary judgment by determining that no genuine issues of material fact existed with respect to the plaintiff’s standing and his special defenses of laches and unclean hands. We disagree and, accordingly, affirm the denial of the defendant’s motion to dismiss and the summary judgment rendered in favor of the plaintiff.

          The following detailed recitation of the facts and procedural history is necessary for the resolution of the defendant’s appeal. The origin of the present case lies in a prior foreclosure action commenced on October 21, 2009, by SunTrust Mortgage, Inc. (SunTrust), against the defendant concerning property located at 48 Second Avenue in Stratford. On June 14, 2010, SunTrust filed a motion to substitute the plaintiff in the present [190 Conn.App. 776] case as the plaintiff, stating that the subject mortgage deed and note had been assigned to the plaintiff. The court granted this motion on July 6, 2010. An unsuccessful mediation effort ensued.

         In the SunTrust action, on September 27, 2013, the court, Tyma, J., granted the plaintiff’s motion for summary judgment as to liability only. SunTrust Mortgage, Inc. v. Fitzpatrick, Superior Court, judicial district of Fairfield, Docket No. CV- 09-6004428-S, 2013 WL 5663600 (September 27, 2013). First, the court noted that the plaintiff had presented evidence, by way of an affidavit, a copy of the note and two allonges, that SunTrust had been the proper party to initiate the foreclosure action and that the plaintiff was the current owner of the debt and, thus, the proper party to maintain the foreclosure action. Id. Additionally, the court concluded: "Having failed to present any evidence rebutting the presumption that SunTrust was the rightful owner of the debt at the time that it commenced the foreclosure action, and that the ... plaintiff is presently the rightful owner, the defendant had failed to satisfy his burden of providing any evidentiary foundation to demonstrate the existence of a genuine issue of material fact concerning the note holder." Id.

         On June 5, 2014, the plaintiff moved for a judgment of strict foreclosure, and the defendant filed an objection fifteen days later. On June 26, 2014, the court, Bellis, J., issued an order dismissing the action.^[2] The plaintiff unsuccessfully moved to open the judgment of dismissal.

         The plaintiff subsequently commenced the present action in May, 2016. In its complaint, the plaintiff alleged that the defendant and Comp-U-Fund Mortgage Corporation (Comp-U-Fund) had executed a promissory note in the amount of $580,000 on August 16, 2007. The note [190 Conn.App. 777] was secured by a mortgage on the defendant’s property, located at 48 Second Avenue in Stratford, in favor of Mortgage Electronic Registration Systems, Inc.

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(MERS) as nominee for Comp-U-Fund.^[3] The mortgage was executed on August 16, 2007, and recorded on the Stratford land records on August 20, 2007.

          The plaintiff further alleged that on or before May 26, 2015, it became, and at all times thereafter has been, the party entitled to collect the debt evidenced by the August 16, 2007 note. It further alleged that as a result of the defendant’s nonpayment of the monthly installment of principal and interest starting on May 1, 2009, the note was in default. The plaintiff accelerated the balance on the note, declaring it to be due in full, and sought to foreclose on the mortgage.

         After an unsuccessful mediation, the defendant filed an answer and counterclaim on March 2, 2017.^[4] On December 22, 2017, the plaintiff moved for summary [190 Conn.App. 778] judgment as to liability, attaching a supporting affidavit, documentary evidence and a memorandum of law to its motion. In its memorandum of law, the plaintiff argued that it had established a prima facie case^[5] of the defendant’s liability in this mortgage foreclosure action. Additionally, the plaintiff directed the court to the attached mortgage, note, assignments of the mortgage and affidavit of Shaundra Hunt, an officer employed by SunTrust. The plainitff claimed that these documents established that no genuine issue of material fact remained, and, therefore, it was entitled to summary judgment as to the liability with respect to its foreclosure complaint.

          On February 5, 2018, the defendant filed an objection to the plaintiff’s motion for summary judgment. Specifically, he argued that genuine issues of material fact existed as to whether his special defenses of laches and unclean hands, as set forth in his amended answer, barred the plaintiff’s claim. With respect to the former, the ...