2009 Ct. Sup. 11834
No. CV08 5006746SConnecticut Superior Court Judicial District of Ansonia-Milford at Milford
July 10, 2009
RULING RE MOTION TO OPEN JUDGMENT (#119)
JOHN W. MORAN, Judge Trial Referee.
Citicorp Trust Bank, FSB held a mortgage dated August 10, 2005 and recorded in Volume 1423 at Page 397 of the West Haven Land records. Said mortgage was of the subject property identified as 197 Highland Street, West Haven, Connecticut and from Carl J. Tart and Gloria M. Tart.
This said mortgage, according to the West Haven Land Records, was subordinate to a Home Equity Loan of Credit mortgage from the Tarts in favor of RBS Citizens National Association dated January 14, 2005 and recorded April 1, 2005. Although this line of credit was paid down to zero from the proceeds of the Citicorp Trust Bank, FSB, mortgage, the line of credit was never cancelled and mortgage securing said line of credit was never released. There is no evidence before this court the line of credit was cancelled or requested to be cancelled nor a release of mortgage requested or sought.
Citicorp Trust Bank, FSB foreclosed its mortgage in a Mortgage Foreclose proceeding initiated and concluded in the New Haven Superior Court.[1] Citicorp Trust Bank, FSB obtained a judgment of strict foreclosure and took legal title to the subject property on August 12, 2008.[2] The legal effect of the judgment of strict foreclosure and taking title pursuant thereto was that the Citicorp Trust Bank FSB mortgage from the Tarts was subsumed in the strict foreclosure judgment and said mortgage no longer exists.
RBS Citizens National Association has commenced a mortgage foreclosure proceeding in the Milford Superior Court seeking to foreclose the aforementioned mortgage from Carl J. Tart and Gloria Tart dated January 14, 2005 and recorded April 1, 2005 and recorded in the West Haven Land Records Volume 1398, Page 239 (CV08 5006746S, Returnable August 26, 2008).
RBS Citizens National Association has named Citicorp Trust Bank CT Page 11835 FSB as a subordinate lien holder by virtue of that mortgage from the Tarts dated August 10, 2005 and recorded in Volume 1423, Page 397 of the West Haven Land Records. Citicorp Trust Bank FSB has filed an appearance through counsel.
The Milford Superior Court’s matter most recently went to a judgment of strict foreclosure on March 30, 2009 setting a law day of July 27, 2009.
The defendant, Citicorp Trust Bank FSB has filed a motion to open judgment dated May 19, 2009, filed May 20, 2009 (#119).
The defendant, Citicorp Trust Bank FSB claims: “(1) that at the closing of the Defendant’s loan a check was issued to pay off the Plaintiff’s loan in accordance with a payoff letter received from Plaintiff.”
The Court’s response to this claim is that it appears to be true that the Tarts paid off their credit balance to RBS Citizen’s National Association in full but that the line of credit was never cancelled or terminated nor was the mortgage securing said line of credit released. Therefore this mortgage is still outstanding and legally viable.
“(3) The plaintiff’s mortgage did not adequately describe the property that was being encumbered by Plaintiff’s mortgage.
The Court respectfully disagrees with such claim. The mortgaged premises were adequately described. See Standards of Title 10.1 included in RBS Citizen’s National Association Objection to Open Judgment dated June 4, 2009 (#122).
“(2) Defendant’s mortgage is prior to Plaintiff’s mortgage under the doctrine of equitable subrogation.”
This is the crux of the defendant’s Citicorp Trust Bank FSB argument. But the answer is simple. Its “mortgage” does not legally exist. As previously explained, its “mortgage” was subsumed in its title. It is axiomatic that one cannot hold a mortgage on its own real estate.
Therefore, the Defendant’s Citicorp Trust Bank, FSB motion to reopen judgment is denied.
CT Page 11837