Christiana Trust v. Lewis , 184 Conn. App. 659 ( 2018 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
CHRISTIANA TRUST, A DIVISION OF WILMINGTON
SAVINGS FUND SOCIETY, FSB, TRUSTEE v.
WALTER J. LEWIS, JR., ET AL.
(AC 39985)
Lavine, Moll and Flynn, Js.
Syllabus
The plaintiff, C Co., sought to foreclose a mortgage on certain real property
owned by the defendant L, following L’s default on his mortgage pay-
ments and failure to cure the default. Prior to trial, L requested to
participate in the foreclosure mediation program, but the parties were
unsuccessful in reaching an amicable resolution. In response to C Co.’s
amended complaint, L filed an answer and special defenses. Thereafter,
C Co. filed a motion for summary judgment as to liability. In support
of its motion, C Co. submitted a copy of the note and mortgage and an
affidavit of its servicing agent’s contested foreclosure specialist, stating
that C Co. is the holder of the note and mortgage and that L defaulted
on his payments. L filed an objection to the motion for summary judg-
ment on the ground that there was a genuine issue of material fact as
to whether the mortgage was valid because the signature purporting to
be his on the mortgage had been forged. In support of his objection, L
attached an affidavit in which he stated that he had reviewed the mort-
gage submitted in connection with the motion for summary judgment
and that he had not signed the mortgage. The trial court granted the
motion for summary judgment as to liability, concluding first that L had
abandoned his special defenses because in his objection he did not
dispute the evidence presented by Co. and contested only the validity
of the mortgage. In addition, the court concluded that L’s affidavit was
insufficient to create a genuine issue of material fact with regard to the
validity of the mortgage given his explicit and implicit recognition that
the mortgage was valid. The court reasoned that during his 2011 bank-
ruptcy proceeding, L had made two judicial admissions that the mortgage
was valid and that L’s participation in the foreclosure mediation program
constituted an implicit recognition of the validity of the mortgage. Fol-
lowing the assignment of the subject mortgage to W Co., the trial court
granted C Co.’s motion to substitute W Co. as the plaintiff. Thereafter,
the trial court granted W Co.’s motion for a judgment of strict foreclosure
and rendered judgment thereon. On L’s appeal to this court, held that
the trial court improperly granted C Co.’s motion for summary judgment
as to liability, as a genuine issue of material fact existed as to whether
the signature on the subject mortgage was that of L: L’s statements in
his affidavit in support of his opposition to the motion for summary
judgment that he had reviewed the mortgage submitted in connection
with the motion and that he had not signed the mortgage contradicted
the evidence submitted by C Co. in support of its motion that he had
executed and delivered a valid mortgage, called into question the validity
of the mortgage and gave rise to a genuine issue of material fact as to
the authenticity of the signature on the mortgage, and contrary to W
Co.’s contention that the trial court properly deemed L’s statements in
his 2011 bankruptcy proceeding to be judicial admissions that were
binding on the court, because those statements did not occur in the
context of the present proceeding, they were not judicial admissions
but, instead, were evidentiary admissions to be accepted or rejected
by the trial court; moreover, the trial court improperly considered L’s
participation in the foreclosure mediation program as admissible evi-
dence relating to the issue of the validity of the mortgage, as the statute
(§ 49-31l [c] [8]) governing the foreclosure mediation program makes
clear that a party’s participation in the program does not result in a
waiver of any rights of the mortgagee or mortgagor.
Argued May 14—officially released September 11, 2018
Procedural History
Action to foreclose a mortgage on certain of the
named defendant’s real property, and for other relief,
brought to the Superior Court in the judicial district of
Middlesex, where the court, Aurigemma, J., granted the
plaintiff’s motion for summary judgment as to liability;
thereafter, Wilmington Savings Fund Society, FSB, as
trustee for Normandy Mortgage Loan Trust, Series 2015-
17, was substituted as the plaintiff; subsequently, the
court granted the substitute plaintiff’s motion for a judg-
ment of strict foreclosure and rendered judgment
thereon, from which the named defendant appealed to
this court. Reversed; further proceedings.
Albert L. J. Speziali, with whom, on the brief, was
Francis R. Sablone, for the appellant (named
defendant).
Andrea C. Sisca, with whom was Michael J. Jones,
for the appellee (substitute plaintiff).
Jeffrey Gentes filed a brief for the Connecticut Fair
Housing Center as amicus curiae.
Opinion
MOLL, J. The defendant, Walter J. Lewis, Jr., who
is also known as Walter J. Lewis,1 appeals from the
judgment of strict foreclosure rendered by the trial
court in favor of the substitute plaintiff, Wilmington
Savings Fund Society, FSB, doing business as Christiana
Trust, as Trustee for Normandy Mortgage Loan Trust,
Series 2015-17 (substitute plaintiff). On appeal, the
defendant claims that the court improperly rendered
summary judgment, as to liability only, in favor of the
named plaintiff, Christiana Trust, a Division of Wilming-
ton Savings Fund Society, FSB, as Trustee for Stanwich
Mortgage Loan Trust, Series 2012-17 (original plaintiff),
because a genuine issue of material fact exists as to
whether the signature on the mortgage is his. We agree
and reverse the judgment of the trial court.
The following background is relevant to this appeal.
On April 15, 2014, the original plaintiff commenced this
foreclosure action against the defendant. In its amended
complaint, the original plaintiff alleged the following.
On or about September 14, 2005, the defendant exe-
cuted and delivered a note to First National Bank of
Arizona in the principal amount of $500,000. On that
same date, the defendant executed and delivered to
Mortgage Electronic Registration Systems, Inc.
(MERS), as nominee for First National Bank of Arizona,
a mortgage on property located at 21 Brush Hill Road
in Clinton (subject property). The mortgage was
assigned to Bank of America, N.A., in February, 2012,
and thereafter assigned to the original plaintiff. The
defendant defaulted on his mortgage payments and
failed to cure the default. The original plaintiff elected
to accelerate the balance due on the note and to fore-
close the mortgage on the subject property.
On May 19, 2014, the defendant requested to partici-
pate in the foreclosure mediation program. The defen-
dant participated in the mediation program, and the
parties were unsuccessful in reaching an amicable reso-
lution. On April 9, 2015, the defendant filed an answer
and special defenses, as well as a disclosure of defenses.
He raised four special defenses: unclean hands, estop-
pel, fraud, and breach of the covenant of good faith
and fair dealing.
On June 10, 2015, the original plaintiff filed a motion
for summary judgment against the defendant as to liabil-
ity only. In support of its motion, the original plaintiff
submitted, inter alia, a copy of the note and the mort-
gage and an affidavit of Robert Raulerson, a contested
foreclosure specialist for the original plaintiff’s servic-
ing agent, stating that the original plaintiff is the holder
of the note and the mortgage and that the defendant
defaulted on his payments. On July 2, 2015, the defen-
dant filed an objection to the motion for summary judg-
ment in which he argued that there was a genuine issue
of material fact as to whether the mortgage was valid.
He contended that the signature purporting to be his
on the mortgage at issue had been forged. He also
claimed that the mortgage was recorded on December
18, 2006, more than one year after the mortgage alleg-
edly was executed, i.e., September 14, 2005. In support
of his objection, the defendant attached an affidavit in
which he stated that he reviewed the mortgage submit-
ted in connection with the motion for summary judg-
ment and that he had not signed the mortgage. He
further attested that the attorney who allegedly took
his acknowledgement on the mortgage engaged in a
fraudulent mortgage scheme in December, 2006, and
January, 2007, during which time the mortgage at issue
was recorded, was convicted of crimes relating to mort-
gage fraud and had been suspended from the practice
of law.
On November 6, 2015, the original plaintiff filed a
reply to the defendant’s objection, essentially arguing
that the defendant was precluded from challenging the
validity of the mortgage. Specifically, it argued that the
defendant filed for chapter 11 bankruptcy in August,
2011, and listed as a creditor in his bankruptcy petition
the loan servicer for the mortgage at issue. The original
plaintiff also argued that during a meeting of creditors,
the defendant had admitted that there was a mortgage
on the subject property and that he had retained the
attorney whose acknowledgment appeared on the mort-
gage. It asserted that the foregoing representations con-
stituted judicial admissions that the mortgage was valid.
On January 7, 2016, the court issued its decision grant-
ing the original plaintiff’s motion for summary judg-
ment, as to liability only, against the defendant. The
court first concluded that the defendant had abandoned
his special defenses because in his objection he did not
dispute the evidence presented by the original plaintiff
and contested only the validity of the mortgage. With
regard to the validity of the mortgage, the court stated
that during the defendant’s 2011 bankruptcy proceed-
ing, the defendant made two judicial admissions that
the mortgage was valid, and that his affidavit was not
sufficient to overcome those binding admissions. The
court also reasoned that the defendant’s participation
in the foreclosure mediation program constituted an
implicit recognition of the validity of the mortgage. The
court thereupon concluded that the defendant’s affida-
vit, in which he attested that the signature on the mort-
gage is not his, was insufficient to create a genuine
issue of material fact given his explicit and implicit
recognition that the mortgage was valid.2
On May 20, 2016, the original plaintiff filed a motion
to substitute, in which it stated that it had assigned
the mortgage to the substitute plaintiff, and attached
thereto a copy of the assignment. On June 6, 2016, the
court granted the motion to substitute. On December
5, 2016, the substitute plaintiff filed a motion for a
judgment of strict foreclosure. On December 19, 2016,
the court granted the motion, determined the amount
of debt, and set the law day as January 23, 2017. This
appeal followed.
‘‘The standards governing our review of a trial court’s
decision to grant a motion for summary judgment are
well established. 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 seeking summary judgment has the burden of
showing the absence of any genuine issue [of] material
facts which, under applicable principles of substantive
law, entitle him to a judgment as a matter of law . . .
and the party opposing such a motion must provide an
evidentiary foundation to demonstrate the existence of
a genuine issue of material fact. . . . A material fact
. . . [is] a fact which will make a difference in the result
of the case. . . . Finally, the scope of our review of
the trial court’s decision to grant the plaintiff’s motion
for summary judgment is plenary.’’ (Internal quotation
marks omitted.) Romprey v. Safeco Ins. Co. of America,
310 Conn. 304, 312–13, 77 A.3d 726 (2013).
‘‘In order to establish a prima facie case in a mortgage
foreclosure action, the plaintiff must prove by a prepon-
derance of the evidence that it is the owner of the
note and mortgage, that the defendant mortgagor has
defaulted on the note and that any conditions precedent
to foreclosure, as established by the note and mortgage,
have been satisfied. . . . Thus, a court may properly
grant summary judgment as to liability in a foreclosure
action if the complaint and supporting affidavits estab-
lish an undisputed prima facie case and the defendant
fails to assert any legally sufficient special defense.’’
(Internal quotation marks omitted.) Bank of America,
N.A. v. Aubut, 167 Conn. App. 347, 359, 143 A.3d 638(2016).
The defendant claims that the court improperly
granted the original plaintiff’s motion for summary judg-
ment because a genuine issue of material fact exists as
to whether his signature on the mortgage was forged.
He contends that his affidavit, filed in connection with
his objection, in which he attested that the signature
on the mortgage is not his, was sufficient to demonstrate
the existence of a genuine issue of material fact regard-
ing the authenticity of the signature. In contrast, the
substitute plaintiff argues that the court properly deter-
mined that there was no genuine issue of material fact
as to the validity of the mortgage. The substitute plaintiff
further argues that the fact that the defendant signed
a foreclosure mediation certificate in which he repre-
sented that his primary residence was subject to the
mortgage and participated in mediation in an attempt
to negotiate a short sale supports the court’s determina-
tion that the defendant implicitly recognized that the
mortgage was valid.3 We agree with the defendant.
‘‘To oppose a motion for summary judgment success-
fully, the nonmovant must recite specific facts . . .
which contradict those stated in the movant’s affidavits
and documents.’’ (Internal quotation marks omitted.)
Yancey v. Connecticut Life & Casualty Insurance Co.,
68 Conn. App. 556, 559, 791 A.2d 719 (2002). Here, the
defendant provided an evidentiary foundation to dem-
onstrate the existence of a genuine issue of material
fact.
In his affidavit, the defendant contradicted the evi-
dence submitted by the original plaintiff in support of
its motion for summary judgment that he had executed
and delivered a valid mortgage, namely, the note, the
mortgage and an affidavit from the original plaintiff’s
loan servicer attesting that the defendant had executed
the mortgage. In his affidavit, the defendant stated that
he ‘‘reviewed the mortgage attached to the plaintiff’s
memorandum of law,’’ and ‘‘[t]he signature that appears
on that mortgage is not mine; I did not sign it.’’ The
foregoing statements call into question the validity of
the mortgage and give rise to a genuine issue of material
fact as to the authenticity of the signature on the
mortgage.
The substitute plaintiff argues that a mortgage con-
taining an unauthorized signature is not automatically
deemed a nullity but is enforceable under certain cir-
cumstances. Whether the mortgage is enforceable
under the circumstances of the present case is a factual
issue reserved for the trier of fact.
Although the substitute plaintiff argued in its brief
to this court that the trial court properly deemed the
defendant’s statements in his 2011 bankruptcy proceed-
ing to be judicial admissions binding on the court, the
parties now agree that such statements were not judicial
admissions but, rather, were evidentiary admissions.4
We agree. Because the defendant’s statements in the
bankruptcy proceeding did not occur in the context of
the present proceeding, they are evidentiary admissions
to be accepted or rejected by the trier of fact. ‘‘Judicial
admissions are conclusive only in the judicial proceed-
ing in which made. . . . In subsequent proceedings
such prior judicial admissions are merely evidentiary
admissions, to be used as evidence to prove a matter
in dispute in the subsequent trial.’’ C. Tait & E. Prescott,
Connecticut Evidence (5th Ed. 2014) § 8.16.3, p. 530;
see also Straw Pond Associates, LLC v. Fitzpatrick,
Mariano & Santos, P.C., 167 Conn. App. 691, 707–708,
145 A.3d 292, cert. denied, 323 Conn. 930, 150 A.3d
231 (2016).
Moreover, we conclude that the court improperly
considered the defendant’s participation in the foreclo-
sure mediation program as admissible evidence relating
to the issue of the validity of the mortgage. General
Statutes § 49-31l (c) (8), which governs the foreclosure
mediation program, makes clear that a party’s participa-
tion in the foreclosure mediation program does not
result in a waiver of any rights of the mortgagee or
mortgagor. Specifically, that subdivision provides:
‘‘None of the mortgagor’s or mortgagee’s rights in the
foreclosure action shall be waived by participation in
the foreclosure mediation program.’’ General Statutes
§ 49-31l (c) (8). Simply put, holding participation in the
foreclosure mediation program against a mortgagor by
restricting his or her ability to contest the validity of
the mortgage would run afoul of the plain language of
§ 49-31l (c) (8) and would contravene the public policy
of promoting foreclosure mediation.
In sum, we conclude that the trial court improperly
granted the motion for summary judgment as to liability
only, as a genuine issue of material fact exists as to
whether the signature on the mortgage is that of the
defendant.
The judgment is reversed and the case is remanded
for further proceedings according to law.
In this opinion the other judges concurred.
1
The complaint also named as defendants Santander Bank, N.A., formerly
known as Sovereign Bank, National Association, formerly known as Sover-
eign Bank; and Mortgage Electronic Registration Systems, Inc., as nominee
for Countrywide Home Loans, Inc. Lewis alone filed the present appeal.
Accordingly, we refer to him as the defendant.
2
On January 26, 2016, the defendant appealed from the court’s granting
of the motion for summary judgment. The original plaintiff filed a motion
to dismiss the appeal for lack of a final judgment, and this court granted
the motion.
3
The substitute plaintiff also argues that the defendant did not properly
raise the issue of forgery by way of a special defense. The substitute plaintiff
did not characterize this claim as an alternative ground for affirmance but
raised it in its brief filed in this court, and the defendant responded to the
argument in his reply brief. ‘‘Given the fact that neither party would be
prejudiced by our doing so, we treat [this claim] as if [it] had been properly
raised as . . . [an] alternate [ground] for affirmance.’’ (Internal quotation
marks omitted.) Gerardi v. Bridgeport, 294 Conn. 461, 466, 985 A.2d 328(2010). In paragraph 4 of its amended complaint, the original plaintiff
asserted that the defendant executed and delivered to MERS a mortgage
on the subject property. In his answer, the defendant denied the allegations
in paragraph 4 of the amended complaint. We conclude that the defendant’s
denial of the substitute plaintiff’s allegation that he had executed the mort-
gage was sufficient in this case. See Practice Book § 10-50 (‘‘No facts may
be proved under either a general or special denial except such as show that
the plaintiff’s statements of fact are untrue. Facts which are consistent with
such statements but show, notwithstanding, that the plaintiff has no cause
of action, must be specially alleged. . . .’’).
4
The substitute plaintiff conceded this point during oral argument before
this court.