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Deutsche Bank National Trust Co. v. Ponger

Court of Appeals of Connecticut

July 2, 2019

DEUTSCHE BANK NATIONAL TRUST COMPANY, TRUSTEE
v.
JOSEPH R. PONGER ET AL.

          Argued November 29, 2018

         Procedural History

         Action to foreclose a mortgage on certain real property of the named defendant et al., and for other relief, brought to the Superior Court in the judicial district of Stamford-Norwalk, where the court, Mintz, J., granted the plaintiff's motion for summary judgment as to liability as against the named defendant; thereafter, the court, Hon. A. William Mottolese, judge trial referee, accepted the parties' stipulation of facts, and the matter was tried to the court, Hon. A. William Mottolese, judge trial referee; judgment of strict foreclosure, from which the defendant Theresa Ponger appealed to this court. Affirmed.

          Colin B. Connor, for the appellant (defendant Theresa Ponger).

          Christopher J. Picard, for the appellee (plaintiff).

          DiPentima, C. J., and Moll and Sullivan, Js.

          OPINION

          SULLIVAN, J.

         The defendant Theresa Ponger appeals from a judgment of strict foreclosure rendered by the trial court.[1] On appeal, the defendant's principal claim is that the court erred when it concluded that the plaintiff, Deutsche Bank National Trust Company, as Trustee, in Trust, for Registered Holders of Long Beach Mortgage Loan Trust 2006-WL3, Asset-Backed Certificates, Series 2006-WL3, had provided notice of default and acceleration to her when it sent notice to the subject property addressed to her former spouse, Joseph R. Ponger (Ponger), who no longer resided at the property. Because the court correctly held that the notice requirement under the mortgage was satisfied because notice to one joint tenant or joint obligor constitutes notice to the others, we affirm the judgment of the trial court.

         The parties stipulated to the following relevant facts. On September 7, 2005, Ponger executed a note in favor of Long Beach Mortgage Company in the principal amount of $420, 000. The note was endorsed in blank and supplied to the plaintiff prior to the commencement of this action. Also on September 7, 2005, Ponger and the defendant executed a mortgage deed in favor of Long Beach Mortgage Company on property located at 23 Macintosh Road, Norwalk. The mortgage was recorded in the Norwalk land records on September 13, 2005.[2] The plaintiff is the present holder of the note.

         On or about December 6, 2013, by letter addressed to Ponger at 23 Macintosh Road, Norwalk, Connecticut 06857, the plaintiff advised him that the note and mortgage were in default due to his failure to make the required monthly payments.[3] Notice of the aforementioned default was not addressed to the defendant.[4] In the absence of a cure of the default, the plaintiff elected to accelerate the amount due under the note. On April 15, 2014, the plaintiff provided Ponger and the defendant notice of their rights under the General Statutes as they relate to the Emergency Mortgage Assistance Program. See General Statutes § 8-265cc et seq. The record further indicates that Ponger failed to make payments pursuant to the note from July 1, 2013, to the date of the joint stipulation, May 9, 2017.

         The present action was commenced on October 13, 2015, approximately eighteen months after the Emergency Mortgage Assistance Program notice was mailed to the subject property. On May 5, 2016, after the expiration of the court approved foreclosure mediation period, the defendant filed a timely answer asserting, as a special defense, that the plaintiff had failed to provide her with proper notice of default and acceleration. Thereafter, on June 2, 2016, the plaintiff filed a motion for summary judgment as to both Ponger and the defendant. The court granted the motion with respect to Ponger but denied the motion with respect to the defendant. On May 16, 2017, the parties filed a joint stipulation of facts with the court as to the remaining issues in dispute. On September 6, 2017, the court issued its memorandum of decision finding in favor of the plaintiff. The court determined that ‘‘[r]esolution of this issue is controlled squarely by Citicorp Mortgage, Inc. v. Porto, 41 Conn.App. 598, 600-604, 677 A.2d 10 (1996), ''[5] and, thus, concluded in relevant part that the ‘‘notice of default and acceleration was sent to [the defendant] as a joint tenant of the mortgaged property and a joint obligor on the mortgage deed.'' Thereafter, the court rendered judgment of strict foreclosure against both Ponger and the defendant, and set the law day for January 16, 2018. This appeal followed. Additional facts and procedural history will be set forth as necessary.

         The defendant's principal claim on appeal is that the court erred when it concluded that the notice requirement provision of the subject mortgage had been satisfied as to the defendant when the plaintiff provided notice addressed exclusively to Ponger.[6] Specifically, the defendant claims that, because she is a ‘‘[b]orrower'' under the terms of the mortgage, and because the notice provision of the mortgage requires notice of default and acceleration to be given to the ‘‘[b]orrower, '' the plaintiff was required to provide her individually with notice. The defendant further claims that the court improperly applied the legal principles set forth in Citicorp Mortgage, Inc. v. Porto, supra, 41 Conn.App. 600, because the present case is distinguishable, and, as a result of the improper application of Citicorp Mortgage, Inc., a necessary condition precedent to the foreclosure action was not met.[7] We disagree.

         As an initial matter, we note that the defendant's claim presents a mixed question of law and fact. ‘‘Where the question whether proper notice was given depends upon the construction of a written instrument or the circumstances are such as lead to only one reasonable conclusion, it will be one of law, but where the conclusion involves the effect of various circumstances capable of diverse interpretation, it is necessarily one of fact for the trier.'' (Internal quotation marks omitted.) Sunset Mortgage v. Agolio, 109 Conn.App. 198, 202, 952 A.2d 65 (2008). Because the plaintiff claims ‘‘that the facts found were insufficient to support the court's legal conclusion, this issue presents a mixed question of law and fact to which we apply plenary review.'' Winchester v. McCue, 91 Conn.App. 721, 726, 882 A.2d 143, cert. denied, 276 Conn. 922, 888 A.2d 91 (2005).

         We begin by addressing the defendant's claim that the court erred when it applied the legal principles set forth in Citicorp Mortgage, Inc., to the present case. In Citicorp Mortgage, Inc., this court addressed whether notice to one joint tenant constituted notice to the others under similar, but not identical, circumstances. There, the defendant and his spouse were living apart, and neither the defendant nor the spouse resided at the subject property at the time notice was delivered. Similar to the notice provision in the present case, the relevant notice provision provided: ‘‘Unless applicable law requires a different method, any notice that must be given to me under this note will be given by delivering it or by mailing it first class to me at the property address above or at a different address if I give the note holder notice of my different address.'' (Internal quotation marks omitted.) Citicorp Mortgage, Inc. v. Porto, ...


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