August 2, 2016
by Lindsey Goergen
Hunt Leibert – USFN Member (Connecticut)
Recently the U.S. District Court for the District of Connecticut denied a defendant-borrower’s motion for summary judgment and granted the plaintiff’s cross-motion for summary judgment. [Santander Bank v. Harrison, Civil No. 3:15cv1730 (D. Conn. July 1, 2016)].
The borrower asserted that the plaintiff lacked standing. The borrower’s motion for summary judgment had initially been filed as a motion to dismiss, which the court converted under Federal Rule 12(d) to a motion for summary judgment and permitted the plaintiff to file a cross-motion for summary judgment prior to any other responsive pleading or answer being filed.
The borrower claimed that Santander Bank lacked standing to bring the foreclosure action based upon her receipt of two letters from the plaintiff dated October 22, 2014 and February 9, 2015. The 2014 letter indicated that the plaintiff was unable to locate her loan in their computer system based upon the address and loan number that the borrower provided. The 2015 letter stated (erroneously) that the plaintiff had sold the loan on November 1, 2009. In fact, the plaintiff had owned the loan since 2007, as had been testified to by a vice president of Santander Bank in the course of a prior state court deposition.
In finding that the plaintiff owned the loan despite the letters, the court relied upon an affidavit from the plaintiff, which explained how the misstatements in the letters were made. The court noted that Santander Bank also presented undisputed evidence of its current ownership of the note. The court therefore found that the letters failed to create a sufficient issue of fact with respect to ownership.
In granting the plaintiff’s cross-motion for summary judgment, the court applied the standard as set forth in the case of GMAC Mortgage, LLC v. Ford, 144 Conn. App. 165, 176 (2013), that stated: “In order to establish a prima facie case in a mortgage foreclosure action, the plaintiff must prove by a preponderance of the evidence that it is the owner of the note and mortgage, that the defendant mortgagor has defaulted on the note and that any conditions precedent to foreclosure, as established by the note and mortgage, have been satisfied.”
Having found ownership of the note in denying the borrower-defendant’s motion, the court went on to find that the defendant had defaulted on the note and that the plaintiff had complied with all conditions precedent to foreclosure as set forth in the note and mortgage.
Editor’s Note: The author’s firm represented the plaintiff in the case summarized in this article.
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