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Connecticut Appellate Enforced Mortgage Where Witness Not Present at Closing

Posted By USFN, Tuesday, October 15, 2019

by Jeffrey M. Knickerbocker, Esq.
Bendett & McHugh, P.C.
USFN Member (CT, MA, NE, NH, RI, VT)

The borrower in Wells Fargo Bank, N.A. v. Fratarcangeli, 192 Conn.App. 159 (2019), argued that her mortgage was unenforceable because only one witness was present when she executed and delivered the mortgage to lender.  Requirement to convey land are found in Conn. Gen. Stat. § 47-5, which states in part, “(a) All conveyances of land shall be: (1) In writing; (2) if the grantor is a natural person, subscribed, with or without a seal, by the grantor with his own hand ... and (4) attested to by two witnesses with their own hands.”

The borrower alleged that at the closing there was a notary, and the notary supplied a false witness in an effort to validate the mortgage.  The borrower further alleged that such conduct constituted fraud and rendered the mortgage unenforceable.

The trial court granted the Plaintiff’s motion to strike the borrower’s claims with regard to the witnesses at the execution of the mortgage deed.  In Connecticut, a motion to strike is similar to a motion to dismiss under Fed.R.Civ.P. 12(b)(6).  Like the federal motion to dismiss, the motion to strike is based solely on pleadings with no consideration to the evidence. 

The trial court, and the appellate court in upholding the trial court’s decision, relied on Connecticut’s validating statute.  That statute, which is found at Conn. Gen. Stat. § 47-36aa, provides, in part, ‘“(a) Conveyancing defects. Any deed, mortgage ... or other instrument made for the purpose of conveying, leasing, mortgaging or affecting any interest in real property in this state recorded after January 1, 1997, which instrument contains any one or more of the following defects or omissions is as valid as if it had been executed without the defect or omission unless an action challenging the validity of that instrument is commenced and a notice of lis pendens is recorded in the land records of the town or towns where the instrument is recorded within two years after the instrument is recorded ... (2) The instrument is attested by one witness only or by no witnesses ....”  The appellate court found that the language of the statute was “plain and unambiguous.”  The appellate court found that other statutes had an exception for fraud, but the validating statute had no such exception.  Based on the fact that the statute does not have an exception to fraud, the court found that the validating statute applied to this action. The appellate court further upheld the trial court’s granting of the Plaintiff’s motion to strike the allegations concerning the execution of the mortgage.

This is an important case in Connecticut because some trial courts had refused to strike similar defenses based on allegations of fraud.  This appellate court decision establishes that having a witness added after the loan closing does not automatically invalidate the mortgage deed.  While the appellate court has applied the validating statute to this case, at closing a mortgagee would be well served by having two witnesses at a closing for a new mortgage. 

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