U.S. BANK, NATIONAL ASSOCIATION, Trustee
Christopher M. FITZPATRICK et al.
January 30, 2019
from the Superior Court, Judicial District of
Fairfield, Truglia, J.
P. Driscoll, with whom, on the brief, was Richard J. Buturla,
Milford, for the appellant (named defendant).
M. Knickerbocker, for the appellee (plaintiff).
C.J., and Alvord and Eveleigh, Js.
Conn.App. 775] The defendant Christopher M.
Fitzpatrick  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
plaintiffs motion for summary judgment by determining that
no genuine issues of material fact existed with respect to
the plaintiffs standing and his special defenses of laches
and unclean hands. We disagree and, accordingly, affirm the
denial of the defendants motion to dismiss and the summary
judgment rendered in favor of the plaintiff.
following detailed recitation of the facts and procedural
history is necessary for the resolution of the defendants
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.
SunTrust action, on September 27, 2013, the court,
Tyma, J., granted the plaintiffs 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.
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. The plaintiff
unsuccessfully moved to open the judgment of dismissal.
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 defendants property, located at 48 Second
Avenue in Stratford, in favor of Mortgage Electronic
Registration Systems, Inc.
(MERS) as nominee for Comp-U-Fund. The mortgage was executed
on August 16, 2007, and recorded on the Stratford land
records on August 20, 2007.
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 defendants
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
an unsuccessful mediation, the defendant filed an answer and
counterclaim on March 2, 2017. 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 of the defendants
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
February 5, 2018, the defendant filed an objection to the
plaintiffs 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 plaintiffs
claim. With respect to the former, the ...