November 29, 2018
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.
B. Connor, for the appellant (defendant Theresa Ponger).
Christopher J. Picard, for the appellee (plaintiff).
DiPentima, C. J., and Moll and Sullivan, Js.
defendant Theresa Ponger appeals from a judgment of strict
foreclosure rendered by the trial court. 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.
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. The plaintiff is
the present holder of the note.
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. Notice of the aforementioned default was
not addressed to the defendant. 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.
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), '' 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
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. 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. We disagree.
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
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,