U.S. Bank Trust, N.A. v. Dallas ( 2022 )

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APPENDIX
U.S. BANK TRUST, N.A., TRUSTEE v.
LESLEY DALLAS ET AL.*
Superior Court, Judicial District of Litchfield
File No. CV-XX-XXXXXXX-S
Memorandum filed May 24, 2021
Proceedings
Memorandum of decision on plaintiff’s motion for
summary judgment. Motion granted.
Adam L. Avallone and Frank Velardi, for the plaintiff.
Gary L. Seymour, for the named defendant.
Opinion
J. MOORE, J. The plaintiff, U.S. Bank Trust, N.A., as
Trustee for LSF9 Master Participation Trust, filed a
motion for summary judgment in this foreclosure action
on liability only on June 10, 2019 (#172). The defendant
Lesley Dallas (Dallas) filed a memorandum in opposi-
tion to the motion for summary judgment on August 7,
2019. The court conducted a remote hearing on the
motion for summary judgment on January 15, 2021. The
plaintiff filed the requisite Federal Mortgage Foreclo-
sure Moratorium Affidavit on April 20, 2021 (#185). For
the reasons set forth below, the court grants the motion
for summary judgment on liability only.
Dallas’ memorandum in opposition and her support-
ing affidavit rely solely on her two remaining special
defenses. There is nothing in the memorandum in oppo-
sition or in Dallas’ affidavit that attempts to negate or
undermine the conclusion that the plaintiff has estab-
lished a prima facie case of foreclosure.
The plaintiff has, indeed, established a prima facie
case for foreclosure by means of an affidavit submitted
by the mortgage loan servicer of the plaintiff and by
the exhibits attached thereto. The plaintiff’s affidavit
satisfies the prerequisites of General Statutes § 52-180,
as construed in RMS Residential Properties, LLC v.
Miller, 303 Conn. 224, 235–36, 32 A.3d 307 (2011), over-
ruled in part on other grounds by J.E. Robert Co. v.
Signature Properties, LLC, 309 Conn. 307, 325 n.18, 71
A.3d 492 (2013). The plaintiff’s affidavit establishes the
following facts: (1) the defendant Dallas executed and
delivered a promissory note on November 2, 2005, in
favor of the original lender, Chase Bank USA, N.A., in
the amount of $650,000; (2) through two assignments,
the plaintiff has become the payee of the note and was
in possession of the note prior to filing this lawsuit; (3)
the defendant Dallas executed and delivered a mortgage
on 1 Skiff Mountain Road, Sharon, Connecticut on
November 2, 2005, in favor of the plaintiff’s predecessor
in interest, which mortgage was recorded on December
30, 2005; (4) as of May 22, 2019, the unpaid balance of
the note is $632,361.19 plus interest, late charges and
collections costs, and this unpaid balance, although due
and payable, has not been paid; (5) the defendant Dallas
has been in default under the terms of the note and
mortgage since January 2, 2009; (6) notice of the default
was dated on or about October 15, 2009, and was sent
by first class mail, postage fully paid to the defendant
Dallas; (7) the notice set forth the default, the action
required to cure it and a date by which the default
needed to be cured; (8) the defendant Dallas did not
cure the default in timely fashion and, as a result, the
plaintiff elected to accelerate the indebtedness owed
and brought this foreclosure action; and (9) the defen-
dant Dallas has not yet cured the default. These facts
establish a prima facie case in a mortgage foreclosure
action under GMAC Mortgage, LLC v. Ford, 144 Conn.
App. 165, 176, 73 A.3d 742 (2013).
Based on the Federal Mortgage Foreclosure Morato-
rium Affidavit recently filed in court, the court finds that
the loan secured by this mortgage is not a ‘‘ ‘Federally
Backed Mortgage Loan’ ’’ as defined by 15 U.S.C. 9056
(a) (2) of the CARES Act, and is, therefore, not subject
to any federal foreclosure moratorium.
Dallas has, however, raised two special defenses and
has argued that the court must, in an equitable action
such as this foreclosure, review all of her pleadings
liberally to see if she has raised any other defenses.
The court will consider the issues raised by each of her
special defenses, and then the argument about other
equitable special defenses, seriatim.
The first special defense is entitled, ‘‘Residential
Mortgage Fraud.’’ This special defense, read generously,
essentially makes two kinds of allegations. The first
pertains to documents and alleges that the original
lender and the existing plaintiff (called the plaintiff
and the substitute plaintiff, respectively, in the special
defense) ‘‘knowingly and wilfully omitted mandatory
disclosure documents, and forged, fabricated and robo-
signed documents they knew were untrue,’’ that the
original lender and that the plaintiff ‘‘knowingly, inten-
tionally and wilfully’’ did so ‘‘to deceive, mislead and
induce’’ Dallas to enter into the loan. The second is a
very vague allegation that the original lender and the
plaintiff made false representations that Dallas relied
on to her detriment. As a result of this misconduct,
‘‘foreclosure cannot be had.’’
The second remaining special defense is entitled,
‘‘Fraud in the Inducement.’’ This special defense alleges
that the plaintiff is liable for the actions of its predeces-
sor lender, that the plaintiff, its predecessor and their
agents deliberately either made false statements to Dal-
las or deceitfully omitted to tell Dallas important facts
about the loan, and that Dallas reasonably relied on
these statements or omissions to her detriment.
In sum, the special defenses aver that some docu-
ments were ‘‘forged, fabricated and robo-signed,’’ that
some documents were not given to the defendant and
that someone on behalf of the plaintiff made false repre-
sentations that Dallas relied on to her detriment.
It is hornbook law that ‘‘ ‘the moving party for sum-
mary judgment has the burden of showing the absence
of any genuine issue as to all the material facts, which,
under applicable principles of substantive law, entitle
him to a judgment as a matter of law. The courts hold
the movant to a strict standard. 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.
. . . When documents submitted in support of a motion
for summary judgment fail to establish that there is no
genuine issue of material fact, the nonmoving party
has no obligation to submit documents establishing the
existence of such an issue. . . . Once the moving party
has met its burden, however, the opposing party must
present evidence that demonstrates the existence of
some disputed factual issue.’ ’’ Ramirez v. Health Net
of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576(2008); see also Baldwin v. Curtis, 105 Conn. App. 844,
850–51, 939 A.2d 1249 (2008).
In this case, as set forth above, the plaintiff has estab-
lished a prima facie case for foreclosure. It is incumbent
on Dallas to not only claim that there is a genuine issue
of material fact in regard to her special defenses, but
also to provide evidence in support of that claim.
Such evidence may be in the form of an affidavit.
Affidavits must be based on personal knowledge, set
forth facts that would be admissible in evidence, and
show affirmatively that the affiant is competent to tes-
tify. Practice Book § 17-46; Barrett v. Danbury Hospi-
tal, 232 Conn. 242, 251, 654 A.2d 748 (1995). Affidavits
that fail to meet the criteria of Practice Book § 17-46
are defective and may not be considered to support the
judgment. Defects in affidavits include such things as
assertions of facts or conclusory statements. See Hos-
kins v. Titan Value Equities Group, Inc., 252 Conn.
789, 793–94, 749 A.2d 1144 (2000); Gupta v. New Britain
General Hospital, 239 Conn. 574, 596–97, 687 A.2d 111(1996). ‘‘Mere statements of legal conclusions . . . are
not sufficient to raise the issue [of material fact].’’
United Oil Co. v. Urban Redevelopment Commission,
158 Conn. 364, 377, 260 A.2d 596 (1969).
The only potential source of evidence filed by Dallas
in her effort to raise a genuine issue of material fact is
her own affidavit, which is appended to her memoran-
dum in opposition to this motion. Paragraph 6 of Dallas’
affidavit sets forth her claim of forgery. In this para-
graph, Dallas swears that, at some time after the closing,
someone ‘‘supplied a bogus ‘chicken scratch signature’
on my mortgage documents above the ‘WITNESS’ line
with no name attached beneath [it] in a ridiculous
attempt to try and make it look as if there was a witness
present at closing. . . . I have no idea who signed it,
and I stress again . . . at no time was this supposed
‘chicken scratch witness’ present at my home for my
closing, and at no later time did this ‘chicken scratch
witness’ ever appear before me to confirm that I had
executed the mortgage.’’
Such a claim of forging a witness’ signature or leaving
out a witness’ signature cannot create a genuine issue
of material fact under a recent Appellate Court decision.
Failure to include a witness’ signature or signatures is
remedied under General Statutes § 47-36aa, even when
there is a claim of fraud, unless the purported victim
files a lawsuit challenging the validity of the mortgage
and records a lis pendens within two years after the
mortgage is recorded. Wells Fargo Bank, N.A. v. Fratar-
cangeli, 192 Conn. App. 159, 167–68, 217 A.3d 649(2019).
As the Appellate Court put it, ‘‘[t]he express language
of § 47-36aa (a) (2) provides, inter alia, that any mort-
gage containing a conveyancing defect as a result of
being ‘attested by one witness only or by no witnesses’
is ‘as valid as if it had been executed without the defect
or omission’ unless an action challenging the validity
of the mortgage is commenced and a notice of lis pen-
dens is recorded within two years after the mortgage
is recorded. There is no language in § 47-36aa (a) that
limits the applicability of subdivision (2) or otherwise
carves out a fraud exception for instances where it is
alleged that the lack of a valid second attesting witness
resulted from a fraudulent act. We conclude that the
meaning of the validating act with regard to the question
before us is plain and unambiguous and, therefore, our
inquiry as to such meaning ends. See In re Elianah T.-
T., 326 Conn. 614, 624, 165 A.3d 1236 (2017) (‘[i]f the
legislature’s intent is clear from the statute’s plain and
unambiguous language, our inquiry ends’). Simply put,
§ 47-36aa does not contain a fraud exception, and we
do not write one into the statute. We further note that
when the legislature wants to carve out a fraud excep-
tion, it knows how to do so. See, e.g., General Statutes
§ 12-415 (f) (‘[e]xcept in the case of fraud . . . every
notice of a deficiency assessment shall be mailed within
three years after the last day of the month following
the period for which the amount is proposed to be
assessed or within three years after the return is filed,
whichever period expires later’ . . . ).
‘‘Applying the language of § 47-36aa (a) (2) to the
present case, we conclude that, in the absence of a
timely filed action specifically challenging the validity
of the mortgage at issue on the basis of an enumerated
conveyancing defect, namely, the lack of a valid second
witness as otherwise required by [General Statutes]
§ 47-5 (a), the validating act automatically cured such
defect or omission.’’ (Emphasis in original; footnote
omitted.) Wells Fargo Bank, N.A. v. Fratarcangeli,
supra, 192 Conn. App. 167–68.
Dallas has presented no evidence that she filed an
action challenging the validity of the mortgage or
recorded a lis pendens within two years of the mortgage
having been recorded, on or before December 30, 2007.
Therefore, she cannot succeed on a claim that the wit-
ness’ signature on the mortgage was forged or that the
mortgage lacked the requisite number of witnesses.
Neither can Dallas succeed on her claim that some-
one acting on behalf of the plaintiff made fraudulent
representations to her or withheld mortgage related
documents from her.
Once again, Dallas’ affidavit is the only document she
submitted in an attempt to put evidence in front of the
court. Paragraphs 3, 4, 5 and 6 detail the false statements
or omissions allegedly made to defraud Dallas. The
court will not rehash them at this point, because of
Dallas’ failure to create any genuine issue of material
fact that would serve to tie these statements to either
the plaintiff or its predecessor.
Specifically, Dallas mentions only two people who
made statements to her about the mortgage, one an
unnamed ‘‘representative from Black Dog Title,’’ the
mortgage broker, and the other an attorney named
‘‘Michael Vernile,’’ whom she terms the ‘‘bank’s attor-
ney/title representative . . . .’’ Dallas also swears that
Vernile never provided her with copies of the requisite
mortgage documents and seems to swear that either
the unnamed representative or someone else associated
with Black Dog Title never provided her with the requi-
site documents before the closing. Black Dog Title is
neither the plaintiff’s predecessor nor the plaintiff.
Although the existence of an agency relationship and
whether a person is acting within the bounds of his
authority as an agent are factual questions; Barasso v.
Rear Still Hill Road, LLC, 81 Conn. App. 798, 805, 842
A.2d 1134 (2004); Dallas’ affidavit is totally devoid of
any evidence from which the court could find that Black
Dog Title, its unnamed representative and Vernile were
agents of the plaintiff’s predecessor, much less of the
plaintiff, and even less so that Black Dog Title was
authorized to make statements pertaining to the mort-
gage issued by the plaintiff’s predecessor. Although Dal-
las avers that she relied ‘‘in good faith to my great harm
on Chase Bank,’’ she cites to no conversations with
Chase Bank. Moreover, she provides no evidence of
any link between Chase Bank, the plaintiff’s predeces-
sor, and Black Dog Title. All that the court knows is that
Black Dog Title placed the mortgage. Finally, Dallas’
statement that Vernile was the ‘‘bank’s attorney/title
representative’’ is not supported by any facts that could
possibly show that Vernile was the agent of the plain-
tiff’s predecessor, much less of the plaintiff. The only
fact that Dallas provided about Vernile was that he was
a ‘‘Commissioner of the Superior Court.’’ (Emphasis
omitted.) Dallas’ counsel’s statements in his memoran-
dum in opposition to this motion that Vernile was the
‘‘express agent of Black Dog Title,’’ and that Black Dog
Title was ‘‘an agent of Chase Bank USA, the originating
lender,’’ are not evidence before the court, as they were
not sworn to. At best, Dallas’ statement about Vernile
and the ‘‘[b]ank’’ is the kind of unsupported legal conclu-
sion denounced by applicable case law as insufficient
to raise any kind of genuine issue of material fact.
United Oil Co. v. Urban Redevelopment Commission,
supra, 158 Conn. 377.1
A defendant seeking to invalidate a mortgage by rea-
son of claimed fraud must demonstrate that the lender
either participated in making the false representation,
was aware of the false representation or that the individ-
ual who perpetrated the alleged fraud was the agent of
the lender. See Chase Manhattan Mortgage Corp. v.
Machado, 83 Conn. App. 183, 188–89, 850 A.2d 260(2004). Dallas has failed to submit even a scintilla of
evidence in support of any one of these required alterna-
tive elements of a special defense of fraud in a foreclo-
sure action.
Therefore, insofar as Dallas’ remaining two special
defenses attempt to raise a genuine issue of material
fact as to the claims of fraudulent representations or
omissions, they fail to do so.
Dallas also argues that the court should construe her
special defenses liberally to suss out elements of the
special defenses of unclean hands and equitable estop-
pel.
There are fatal problems for Dallas with both special
defenses.
Unclean hands must be specifically pleaded. See Kos-
inski v. Carr, 112 Conn. App. 203, 209 n.6, 962 A.2d
836 (2009). Dallas failed to do so.
Equitable estoppel requires the same kind of link
between the plaintiff or its predecessor and the person
who, by means of words or actions, causes another to
believe in certain facts that the other then relied on.
See Johnnycake Mountain Associates v. Ochs, 104
Conn. App. 194, 208–209, 932 A.2d 472 (2007), cert.
denied, 286 Conn. 906, 944 A.2d 978 (2008). As with the
allegations of fraud, Dallas has failed to provide any
evidence that would link the plaintiff or its predecessor
to the words or actions of Black Dog Title’s unnamed
representative or Vernile.
For all of the above stated reasons, the court grants
the motion for summary judgment as to the issue of
liability.
* Affirmed. U.S. Bank Trust, N.A. v. Dallas, 213 Conn. App. , A.3d
(2022).
1
This affidavit stands in stark contrast to the affidavit discussed in Barasso
v. Rear Still Hill Road, LLC, supra, 81 Conn. App. 804. The affidavit submitted
in opposition to summary judgment in that case clearly stated that the
plaintiff’s brother, Ralph Barasso, ‘‘repeatedly had represented to the defen-
dants that he was an authorized agent of both the plaintiff and [the plaintiff’s
alleged business partner] . . . .’’ Id.