157 Conn.App. 127
Conn. App. Ct.2015Background
- Loan originated in 1996: borrowers executed a $120,900 promissory note to Columbia National, secured by a mortgage on property in Tolland. Note later endorsed in blank and plaintiff (American Home Mortgage Servicing, later Homeward Residential) possessed the original note when suit began.
- Borrowers defaulted; plaintiff commenced foreclosure in 2011. Defendant Geoffrey N. Madow acquired the property shortly before suit.
- Plaintiff moved for summary judgment as to liability, attaching the note endorsed in blank, mortgage, an assignment, and affidavit/deposition testimony from plaintiff’s assistant secretary (Coffron).
- Defendant opposed, producing deposition excerpts in which Coffron testified that Fannie Mae owned the note, arguing plaintiff lacked ownership and authority to foreclose.
- Plaintiff replied, producing the full Coffron deposition and other materials showing plaintiff was the loan servicer and was authorized by Fannie Mae (per its servicing guide) to initiate foreclosure; court granted summary judgment as to liability and entered foreclosure by sale.
- On appeal defendant argued disputed facts remained about ownership and plaintiff’s authority to foreclose; the appellate court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff met its prima facie burden to show it could enforce the note | Plaintiff had possession of the original note endorsed in blank and an affidavit/deposition showing holder status and servicer authority | Plaintiff lacked ownership of the note (Fannie Mae owned it), so plaintiff had no right to foreclose absent owner authorization | Held for plaintiff: possession of a note endorsed in blank creates a presumption of ownership; defendant rebutted presumption but plaintiff then showed authority to enforce |
| Whether plaintiff had authority from the note owner to prosecute foreclosure when it was not owner | Coffron’s testimony and business records showed plaintiff was servicer and authorized under Fannie Mae guidelines to initiate foreclosure | Coffron’s testimony relying on business records was insufficient; plaintiff should have produced documentary history of transfers and explicit authorization | Held for plaintiff: affiant may acquire personal knowledge via business records; Coffron’s certified deposition coupled with records established servicer authority |
| Applicability of J.E. Robert requirement for documentary history of transfers | Plaintiff is both note holder and servicer; holder presumption applies, so full transfer history not required | Defendant argued J.E. Robert requires full transfer documentation, especially for servicers | Held for plaintiff: J.E. Robert’s stricter documentary rule applies to nonholder transferees/servicers, not to a holder who produced the endorsed note |
| Whether genuine issue of material fact remained precluding summary judgment | Plaintiff produced the note, affidavit, and deposition showing servicer authorization; thus no disputed material fact on authority/ownership practical effect | Defendant produced deposition excerpts suggesting Fannie Mae ownership and disputed authority | Held for plaintiff: no genuine issue of material fact; summary judgment as to liability was proper |
Key Cases Cited
- RMS Residential Properties, LLC v. Miller, 303 Conn. 224 (Conn. 2011) (note holder presumed owner; holder’s possession of note endorsed in blank establishes prima facie case)
- J.E. Robert Co. v. Signature Properties, LLC, 309 Conn. 307 (Conn. 2013) (if a plaintiff is not the owner, burden shifts to show owner vested enforcement rights; documentary-history rule applies to nonholder transferees)
- GMAC Mortgage, LLC v. Ford, 144 Conn. App. 165 (Conn. App. 2013) (an affidavit averring holder status can satisfy evidentiary burden on summary judgment)
- Wells Fargo Bank, N.A. v. Strong, 149 Conn. App. 384 (Conn. App. 2014) (standards for reviewing summary judgment in foreclosure context)
- DiPietro v. Farmington Sports Arena, LLC, 306 Conn. 107 (Conn. 2012) (appellate plenary review of summary judgment rulings)
- Zbras v. St. Vincent’s Medical Center, 91 Conn. App. 289 (Conn. App. 2006) (affidavits based on business records can support summary judgment)