2006 Ct. Sup. 6733
No. CV 04-0569833Connecticut Superior Court Judicial District of New London at New London
April 7, 2006
MEMORANDUM OF DECISION RE MOTIONS FOR SUMMARY JUDGMENT IN FORECLOSURE PROCEEDING
CLARANCE J. JONES, JUDGE.
In this action substitute plaintiff Bank of New York, to which the mortgage and note were assigned, seeks a judgment of strict foreclosure of the defendant’s property at 7 Chestnut Lane in Ledyard, Connecticut. The action is based upon the plaintiff’s claim of non-payment of the note on critical dates. In an Affidavit of Debt, dated July 21, 2004, the plaintiff shows an indebtedness of $142,625.30. The Affidavit of Appraisal discloses a fair market value of the property on July 8, 2004 of $145,000.
Defendant Alfonso Agolio filed a seven-count Counterclaim, six counts of which were stricken pursuant to a motion to strike. In the one remaining Counterclaim captioned Breach of Contract, the defendant argues that the plaintiff breached the mortgage contract in one or more of the following ways:
1) it failed to provide him with a notice of default as required in the note;
2) it failed to provide notice of acceleration as required in the note;
3) it failed to honor its forbearance of his February 2004 mortgage payment;
4) it failed to allow to reinstate said mortgage;
5) it failed to provide workout assistance;
6) it initiated the present action even though he was not three months behind on the mortgage payments.
Cross Motions for Summary Judgment
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On December 5, 2005 plaintiff Bank of New York filed a Motion for Summary Judgment as to Liability only, to which it attached inter alia an Affidavit of Debt, a copy of the defendant’s Answer dated December 22, 2004, and a copy of the defendant’s Counterclaim. Defendant Alfonso Agolio also filed a Motion for Summary Judgment. In his motion the defendant contends that he did not refuse to pay the appropriate principal and interest payments, and that since the note was not in default at the time that the plaintiff sent a written notice of default, judgment should enter in his favor.
The court first shall address the defendant’s motion for summary judgment on his counterclaim. In doing so the court also will consider the plaintiff’s opposing arguments, affidavits and documents. A counterclaim in a foreclosure action must relate to the making, validity or enforcement of the note. New Haven Savings Bank v. LaPlace, 66 Conn.App. 1, 9 (2001). In this case the defendant argues that enforcement is premature because he was not in default in his installment payments.
Standard for Reviewing Summary Judgment Motions
The court will now discuss the standard of review for granting summary judgment. “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.” Conn. Practice Book § 17-49, Miller v. United Technologies Corp., 233 Conn. 732, 744-45 (1995). It is the law that “[t]he 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 judgment as a matter of law.” (citations omitted), Gaynor v. Payne, 261 Conn. 585, 590-91 (2002). In order to defeat a motion for summary judgment the opposing party must show the existence of a genuine issue of material fact. Appleton v. Board of Education, 254 Conn. 205, 209 (2000).
Review of Affidavits, Documents and Pleadings
In an affidavit attached to his motion Alfonso Agolio acknowledges signing the note and mortgage deed to Sunset Mortgage for refinancing his house at 7 Chestnut Lane in Ledyard, Connecticut. The affidavit attests that after his live-in CT Page 6735 girlfriend passed away in November of 2003, he told an employee of Sunset Mortgage of his need to pay funeral expenses, and that the employee granted to him a forbearance of the February 2004 mortgage payment. The defendant further asserts that he made timely mortgage payments for December 2003 and January 2004, and that pursuant to the forbearance agreement he did not make the February 2004 payment. According to the affidavit, the defendant made his next mortgage payment on March 8, 2004, prior to the expiration of the monthly grace payment period.
In an affidavit submitted by the servicing agent of substitute plaintiff Bank of New York, the plaintiff attests that the defendant failed to make mortgage payments due for April 1, 2004 and for each month thereafter, although he was notified in writing of the default and given an opportunity to cure it. The plaintiff refers the court to Exhibit D which is a copy of the letter sent to the defendant. Dated March 4, 2004, the letter informed the defendant that he is in default for non-payment for the period of February 1, 2004 through March 31, 2004, plus late charges, for a total of $2,514.17. The letter further advised him that
[t]o cure the default, on or before April 3, 2004, Countywide (the servicing agent) must receive the amount of $2,514.17 plus any additional regular monthly payment or payments, late charges, fees and charges, which become due on or before April 3, 2004. (Emphasis added.)
Id.
From the affidavits submitted the court finds that the defendant responded to the March 4, 2004 letter by issuing a check, dated April 1, 2004, in the amount of $1,281.60. Certainly this check is less than the amount demanded.[1] He maintains his position that the February 2004 payment was not due because that payment was forborne.
In its affidavit the servicing agent states that since the defendant did not cure the default it accelerated the unpaid balance of the Note.
Bank of New York argues that any alleged forbearance extended by the bank employee does not make sense for the reason that it does not suggest when the amount forborne later would be paid. CT Page 6736 The Bank points out that no consideration was given for the claimed forbearance. Furthermore the Bank maintains that the Statute of Frauds prohibits enforcing an agreement for “any interest in or concerning real property” which is not in writing. Connecticut General Statutes Section 52-550. Clearly calling for the enforcement of a forbearance agreement as to a mortgage payment “concerns real property.” The Bank cites the following cases as supportive of its position: The Glastonbury Bank and Trust Company v. Corbett Construction Co, Inc., Superior Court, Judicial District of New London, at New London (No. CV 521355; Walsh, J.), and GE Capital Mortgage Services, Inc. v. Rumbin et al., Superior Court, Judicial District of Ansonia-Milford, at Milford (No. CV 980064715, Curran, J.).
This court finds that the Statue of Frauds and case law disallow the recognition of the claimed “forbearance agreement” for the reason that Alfonso Agolio has not shown it to be in written form. The law requires that any such agreement, to be enforceable, must be in writing.
Accordingly, inasmuch as Agolio Alfonso has not submitted affidavits or other proof showing the existence of a genuine issue of material fact as to whether the February 2004 mortgage payment was paid, and/or the default in non-payment was cured, the court finds that the affidavits and proof provided by the plaintiff Bank establishes that the default existed and was not cured.[2]
Conclusion
Accordingly, the court enters the following rulings:
1] The Motion for Summary Judgment filed by substitute plaintiff Bank of New York as to liability only is granted.
2] The Motion for Summary Judgment filed by Alfonso Agolio is denied.
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