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Deutsche Bank National Trust Co. v. Ponger

Appellate Court of Connecticut

July 2, 2019

DEUTSCHE BANK NATIONAL TRUST COMPANY, Trustee
v.
Joseph R. PONGER et al.

         Argued November 29, 2018

         Appeal from the Superior Court, Judicial District of Stamford-Norwalk, Mintz, J., A. William Mottolese, Judge Trial Referee.

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

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

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

          OPINION

         SULLIVAN, J.

Page 496

          [191 Conn.App. 77] The defendant Theresa Ponger appeals from a judgment of strict foreclosure rendered by the [191 Conn.App. 78] 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 [191 Conn.App. 79] 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

Page 497

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 [191 Conn.App. 80] 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 [191 Conn.App. 81] 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, ...


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