Deutsche Bank Trust Co. Americas v. Degennaro
Deutsche Bank Trust Co. Americas v. Degennaro
Opinion of the Court
Opinion
The defendant Lynn DeGennaro
The following facts and procedural history are relevant to this appeal. In 2010, the plaintiff brought an action alleging that in December, 2003, the defendant executed a promissory note in the amount of $154,700 in favor of American Mortgage Network, Inc. (American), which note was secured by a mortgage granted to Mortgage Electronic Registration Systems, Inc., as nominee for American on property located at 9 East Hill Road, Oxford, and that the defendant was in default on that
The court granted the plaintiffs motion for summary judgment as to liability. The court found that the defendant had obtained a loan in the amount of $154,700 on December 8, 2003, and executed a promissory note in favor of American. The defendant also executed a mortgage dated December 8, 2003, as security for the repayment of the promissory note. The court determined that “[b]y her own admission, the defendant has defaulted on payment due under the promissory note,” and, accordingly the court found that there was no genuine issues of fact regarding liability. The court further determined that none of the defendant’s special defenses had merit. The plaintiff filed a motion for judgment of strict foreclosure, which the court granted. This appeal followed.
I
The defendant first claims that the court erred in granting the plaintiffs motion for summary judgment as to liability. We disagree.
“The standard of review of motions for summary judgment is well settled. Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party moving for summary judgment has the burden of
“In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. ... To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact. . . . [I]t is only [o]nce [the] [movant’s] burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] [nonmovant] to show that a genuine issue of fact exists justifying atrial.” (Citation omitted; internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 319-20, 77 A.3d 726 (2013).
The defendant argues that the court erred in granting the plaintiffs motion for summary judgment because the evidence submitted with her objection to the motion for summary judgment raised a genuine issue as to whether there was both an oral modification and a written modification to the terms of the loan.
The defendant did not create a genuine issue of material fact by suggesting that there was an oral modification. See Norse Systems, Inc. v. Tingley Systems, Inc., 49 Conn. App. 582, 590, 715 A.2d 807 (1998) (“[a] material fact is a fact that will make a difference in the result of the case” [internal quotation marks omitted]). In her affidavit, the defendant states that an oral modification was entered into. This fact, however, is not material because, as a matter of law, an oral modification would be ineffective.
The alleged oral modification could not have complied with the statute of frauds pursuant to General Statutes § 52-550, which provides in relevant part: “(a) No civil action may be maintained in the following cases unless the agreement ... is made in writing and signed by the party ... to be charged ... (4) upon any agreement for the sale of real property or any interest in or concerning real property ... or (6) upon any agreement for a loan in an amount which exceeds fifty thousand dollars. . . .” “A modification of a written agreement [for a loan exceeding $50,000] must be in writing to satisfy the statute of frauds.” Union Trust Co. v. Jackson, 42 Conn. App. 413, 419, 679 A.2d 421 (1996);
The defendant also argues that the court improperly granted summary judgment because a genuine issue of material fact existed in that the terms of the note and mortgage were modified by a “written offer from the plaintiff to the defendant.” It is not clear what writing the defendant is referring to. The written agreements
The trial period plan, which the plaintiff attached to its supplemental memorandum in support of summary judgment, undisputedly was entered into in July, 2009, between the defendant and GMAC Mortgage, LLC (GMAC),
The November, 2009 repayment agreement provided in paragraph 5 for a payment schedule in which GMAC agreed to “suspend, but not terminate foreclosure activity on the default account” provided that the defendant executed the agreement and paid monthly installments of $930. Paragraph 9 of the agreement provided: “Customer understands and agrees that all other provisions, covenants and agreements set forth in the Mortgage shall remain in full force and effect during the duration of this Agreement and thereafter, and this Agreement shall not constitute a modification or extension of the Mortgage.” (Emphasis added.) The January, 2010 repayment agreement also contained the same language as that in paragraphs 5
The defendant, then, did not submit evidence sufficient to create a genuine issue of material fact as to whether there had been a modification of the original
II
The defendant next claims that the court erred in rendering a judgment of strict foreclosure. We disagree.
“The standard of review of a judgment of foreclosure by sale or by strict foreclosure is whether the trial court abused its discretion. ... In determining whether the trial court has abused its discretion, we must make every reasonable presumption in favor of the correctness of its action. . . . Our review of a trial court’s exercise of the legal discretion vested in it is limited to the questions of whether the trial court correctly applied the law and could reasonably have reached the conclusion that it did. . . . Where a foreclosure defendant’s liability has been established by summary judgment, all that remains for the court to determine at the judgment hearing is the amount of the debt and the terms of the judgment.” (Citation omitted; internal quotation marks omitted.) GMAC Mortgage, LLC v. Ford, 144 Conn. App. 165, 186, 73 A.3d 742 (2013).
On October 10, 2012, after a hearing concerning the plaintiffs debt and the value of the property, the court rendered a judgment of strict foreclosure. The debt amounted to $146,736.52, and the fair market value of the property was determined to be $130,000. The plaintiff had submitted into evidence a July 24, 2012 appraisal
The defendant argues that the court erred in determining the fair market value of the property. She contends that “[mjindful of these economic times, the court should have required more specific evidence of the value of the subject property.” The defendant further argues that “the proposed value submitted by the plaintiff was not credible.” The court had before it the July, 2012 affidavit from the plaintiffs appraiser assessing the fair market value of the property to be $130,000. The court’s finding in this regard was not clearly erroneous. Accordingly, we cannot conclude that the court abused its discretion in rendering a judgment of strict foreclosure.
The judgment is affirmed and the case is remanded for the purpose of setting new law days.
In this opinion the other judges concurred.
Lynn DeGennaro is also known as Lynsie Justine DeGennaro. Mortgage Electronic Registration Systems, Inc., was also named as a defendant in this action. DeGennaro is the only defendant involved in this appeal, and, for the sake of clarity, we refer in this opinion to her as the defendant.
On October 10, 2012, the court granted the named plaintiffs motion to substitute Deutsche Bank Trust Company Americas, as Trustee for RALI 2004-QS6, as the plaintiff. For convenience, we refer in this opinion to the named plaintiff and the substitute plaintiff collectively as the plaintiff.
The defendant also argues that she “consistently denied” that she had defaulted on the terms of the mortgage. To the extent that the defendant’s argument in this regard relies on the existence of a loan modification, it fails because we conclude that there is no genuine issue of material fact as to the nonexistence of a valid loan modification agreement. Furthermore, the defendant asserts in her appellate brief that she denied in her answer that she was in default. A denial in an answer does not by itself create a genuine issue of material fact. See Busconi v. Dighello, 39 Conn. App. 753, 770-72, 668 A.2d 716 (1995), cert. denied, 236 Conn. 903, 670 A.2d 321 (1996).
As recognized in Union Trust Co. v. Jackson, supra, 42 Conn. App. 419, the statute of frauds may be avoided by partial performance, or equitable reliance. No sufficient facts in avoidance were offered in this case.
The plaintiff submitted as an exhibit attached to its motion for summary judgment an assignment of the mortgage from Mortgage Electronic Registration Systems, Inc., to the plaintiff. This evidence was undisputed.
The plaintiff argued in its memorandum of law supporting its motion for summary judgment that the defendant failed to make payments beginning in September, 2009, and failed to cure her default.
The January, 2010 repayment agreement generally contained the same language.
Paragraph 5 of the January, 2010 repayment agreement did not specify an amount due per month, but, nonetheless, did specify that in return for certain monthly payments GMA.C agreed to “suspend, but not terminate foreclosure activity on the default account.”
Additionally, the defendant appears to claim that the court erred by ascribing too high a value. In the context of strict foreclosure, it is difficult to see how an overly generous assessment of fair market value could harm the defendant.
Concurring Opinion
concurring. I concur with the majority opinion but write separately because, although it would not change the result in this case, I fail to see how the interlocutory summary judgment that the trial court rendered on “liability” could find the defendant personally hable for anything as a matter of law.
Section 17-50 of the Practice Book entitled “Triable Issue as to Damages Only,” provides in pertinent part:
This was an action to foreclose a mortgage, not simply a suit on a note. Although a mortgage note was signed by the defendant, Lynn DeGennaro, together with a mortgage deed, at the time of entry of the interlocutory “summary judgment on liability,” there was no legal basis to determine that the defendant had any personal liability. This is so because the court had not determined whether the judgment of foreclosure would be a strict foreclosure, which would be rendered if there were no redemption and vest title in the plaintiff mortgagee, or a foreclosure by sale at auction. If a strict foreclosure judgment and there were a redemption, there could be no future monetary liability on the defendant. If a strict foreclosure judgment, no redemption, and no plaintiffs timely deficiency motion “[a]t any time within thirty days after the time limited for redemption expired,”
Under these circumstances, although it has become very common, making a motion for interlocutory summary judgment on liability in a foreclosure case is the procedural equivalent of trying to drive a nail with the blade of a saw.
General Statutes § 49-14 (a).
D. Caron & G. Milne, Connecticut Foreclosures (5th Ed. 2011) § 10-5:2, p. 575.
Reference
- Full Case Name
- Deutsche Bank Trust Company Americas, Trustee v. Lynn Degennaro Et Al.
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- Published