NORTH AMERICAN MORTGAGE CO. v. SIERPINA, No. CV01-0182757 S (Aug. 9, 2006)

NORTH AMERICAN MORTGAGE COMPANY v. MICHAEL SIERPINA ET AL.,

2006 Ct. Sup. 14654
No. CV01-0182757 SConnecticut Superior Court Judicial District of Stamford-Norwalk at Stamford
August 9, 2006

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT (NO. 129)
ALFRED J. JENNINGS, JUDGE.

In this foreclosure action the plaintiff mortgagee has moved for summary judgment as to liability only pursuant to Practice Book § 17-50.[1] The defendant property owner Michael Sierpina objects on the basis of special defenses he has filed, claiming (1) that the plaintiff failed to provide him with proper notice of default and an opportunity to cure as per provisions of the note and mortgage, and (2) that the mortgage transaction was illegally consummated pursuant to the federal truth-in-lending statute[2] in that the appropriate disclosure statement and a right of rescission were not provided to him at the time of closing. The plaintiff has submitted an affidavit of a representative of the plaintiff familiar with the books and records of the plaintiff as they apply to the mortgage transaction with the defendants which states that the plaintiff is the holder of the note and mortgage, defendants signed the loan documents, the loan is in default for failure to make the monthly payments due for July 2000 and every month thereafter, that the defendants were duly notified of their default and given an opportunity to cure but failed and neglected to cure the default, and that the unpaid balance of the note has been accelerated by the lender. The defendant Mr. Sierpina has filed an affidavit in opposition to the motion which states only that he does not recall receiving “proper notice of default,”[3]
does not recall receiving or signing a truth-in-lending statement, and does not recall receiving or signing a notice of right of rescission. The plaintiff argues that the notice of default was in substantial compliance with any notice requirements of the loan documents and in any event was proper because it was actually received by the defendant, and that no truth-in-lending disclosure statement or notice of right of rescission were required in this mortgage transaction.

Practice Book § 17-49 “provides that summary judgment shall be CT Page 14655 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 that the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.” (Citations omitted; internal quotation marks omitted.) Barrett v. Montesano, 269 Conn. 787, 791-92, 849 A.2d 839 (2004).

It is not necessary for the Court to reach the issues whether or not a notice of default addressed to the borrower at the wrong address is a “proper” notice of default or whether or not truth-in-lending disclosure and rescission notices were required for this transaction, because those issues are no longer part of this case. Each of those issues are premised on facts which are consistent with the allegations of the complaint but purport to show, notwithstanding, that the plaintiff has no cause of action. As such, they must be pleaded by special defense. Practice Book §10-50. In fact they were pleaded by defendant Michael Sierpina as special defenses on November 7, 2001, but in response to plaintiff’s Motion to Strike dated October 24, 2002 (No. 124), those two special defenses were stricken by order of this Court (Mintz, J.) on February 10, 2003 and the defendant did not thereafter file any substitute pleading within the fifteen day limit of Practice Book § 10-44.[4] The issues of notice of default and truth-in-lending compliance are therefore out of the case, and the statements of the defendant Michael Sierpina in his affidavit are therefore not statements of material facts.

Since the defendant has not challenged the factual claims set forth in the plaintiff’s affidavit as to the ownership and signature of the note and mortgage, failure to make monthly payments, acceleration of the debt, and unpaid balance due, the Court finds that the plaintiff has met its burden of showing that there is no issue of material fact and that the plaintiff is entitled to judgment of foreclosure as a matter of law; and that the defendant Michael Sierpina has failed to establish an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. CT Page 14656

The Motion for Summary Judgment is therefore Granted.

SO ORDERED.

[1] Practice Book § 17-50 provides that a summary judgment, interlocutory in character, may be rendered on the issue of liability alone.

[2] 15 U.S.C. § 1601 et seq.

[3] The defendant admits, however, that he recalls receiving a letter which “purported” to be a proper notice of default. In his memorandum of law he claims that the notice sent was improper because it was addressed to him at 29 Haig Avenue, Stamford, Connecticut whereas it should have been addressed to him at 27 Haig Avenue.

[4] After the argument of this motion for summary judgment defendant Michael Sierpina did purport to re-file the stricken special defenses, and add a counterclaim related to those special defenses, on May 23, 2006, but the Court (Holden, J.) sustained the plaintiff’s objection to the filing of that pleading on July 10, 2006 (No. 135) and that filing therefore is not before the Court in deciding this notion for summary judgment. Having been filed after oral argument without the Court’s permission it would not be considered in any event.

CT Page 14657