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HSBC Bank USA, N.A. v. Karlen

Appellate Court of Connecticut

January 7, 2020

HSBC BANK USA, NATIONAL ASSOCIATION, TRUSTEE
v.
GERARD M. KARLEN ET AL.

         Argued October 25, 2019

         

          Appeal from the Superior Court in the judicial district of Stamford-Norwalk, where the court, Randolph, J. Genuario, J., rendered a judgment of foreclosure by sale, from which the named defendant et al. appealed to this court.

         COUNSEL:

          Thomas P. Willcutts, with whom, on the brief, was Michael J. Habib, for the appellants (named defendant et al.).

          Sean R. Higgins, for the appellee (plaintiff).

          Judges: Elgo, Bright and Devlin, Js. BRIGHT, J. In this opinion the other judges concurred.

         OPINION

Page 858

         [195 Conn.App. 171] BRIGHT, J.

          The defendants Gerard M. Karlen and Carla Rivers Karlen[1] appeal from the judgment of foreclosure by sale rendered by the trial court in favor of [195 Conn.App. 172] the plaintiff, HSBC Bank USA, National Association, as Trustee for Wells Fargo Asset Securities Corporation, Mortgage Pass-Through Certificates, Series 2007-2. On appeal, the defendants claim that the trial court improperly granted the plaintiff's motion for summary judgment as to liability.[2] We reverse the judgment of the trial court.

Page 859

          In 2014, the plaintiff commenced the underlying foreclosure action against the defendants with regard to property located at 10 Pheasant Lane in Westport. The plaintiff alleged the following facts in its complaint. On November 2, 2006, the defendants executed and delivered to Mortgage Electronic Registration Systems, Inc., as nominee for Wall Street Mortgage Bankers, Ltd., doing business as Power Express, a note for a loan in the original principal amount of $800,000, which was secured by a mortgage on the property.[3] The note was thereafter affected by a loan modification agreement dated effective November 17, 2010. The mortgage subsequently was assigned to the plaintiff by virtue of an assignment of mortgage dated February 2, 2012, and the plaintiff is the holder of the note. The note was in default, and the plaintiff elected to accelerate the balance due and declared the note to be due in full. When payment was not made, the plaintiff filed this action to foreclose the mortgage that secured the note.

         [195 Conn.App. 173] In their answers and in a later disclosure of defenses, the defendants denied the essential allegations of the plaintiff's complaint and alleged defenses, including lack of jurisdiction, lack of standing, misapplied payments, and the lack of a contract between the parties.

          On May 17, 2016, the plaintiff filed a motion for summary judgment as to liability. Attached to the plaintiff's motion was the affidavit of Diane F. Duckett, the vice president of loan documentation for Wells Fargo Bank, N.A., the servicing agent for the plaintiff. Duckett averred that the defendants executed a promissory note dated November 2, 2006, in the amount of $800,000, with the first payment being due on or about January 1, 2007, and the final payment being due on December 1, 2036. She further averred that the note was endorsed in blank and that the plaintiff was in possession of the note when this foreclosure was commenced in 2014. Duckett averred that the defendants executed a mortgage, also on November 2, 2006, conveying the property to Mortgage Electronic Registration Systems, Inc., as nominee for Wall Street Mortgage Bankers, Ltd., doing business as Power Express, which thereafter was assigned to the plaintiff in an assignment dated January 31, 2012. Duckett averred that the " unpaid balance of the note [was] $846,894.50 plus interest from [April 1, 2013]," and that the defendants had failed to make their May 1, 2013 payment or any payment thereafter. Duckett attached a copy of the November 2, 2006 note and mortgage to her affidavit. She also attached the January 31, 2012 assignment and a default letter sent by the plaintiff to the ...


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