Deutsche Bank National Trust Co. v. Shivers
136 Conn. App. 291
| Conn. App. Ct. | 2012Background
- March 9, 2006, Shivers executed a promissory note for $228,000 to NationPoint, secured by a mortgage in Vernon, with MERS as nominee.
- Borrower defaulted; loan balance accelerated and mortgage assigned to plaintiff, with assignment recorded in Vernon land records.
- Foreclosure action commenced December 2007 alleging plaintiff as holder of note and mortgage.
- Shivers moved to dismiss in Feb. 2009 claiming lack of standing due to post-commencement assignment; court denied.
- Second dismissal motion denied (July 2009) after arguing plaintiff failed to allege it held the note.
- February 9, 2010 plaintiff moved for summary judgment as to liability; defendant opposed; original note produced at hearing; discovery completed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether summary judgment on liability was proper | Plaintiff held the note and mortgage and established default. | Plaintiff lacked standing and genuine issues of material fact remained. | Yes; summary judgment on liability proper; no genuine issue of material fact |
Key Cases Cited
- Rockwell v. Quintner, 96 Conn.App. 221 (2006) (burdens in summary judgment; view evidence in light favorable to opponent)
- Pion v. Southern New England Telephone Co., 44 Conn.App. 657 (1997) (opponent must show genuine issues of material fact with specific facts)
- Mazurek v. Great American Ins. Co., 284 Conn. 16 (2007) (plenary review of summary judgment; standard applicable)
- Tzovolos v. Wiseman, 300 Conn. 247 (2011) (demonstrates standards for appellate review on summary judgment)
- RMS Residential Properties, LLC v. Miller, 303 Conn. 224 (2011) (holder of note presumed owner of debt; production of note establishes case; no genuine issue of material fact)