Deutsche Bank National Trust Co. v. Ponger , 191 Conn. App. 76 ( 2019 )

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DEUTSCHE BANK NATIONAL TRUST COMPANY,
TRUSTEE v. JOSEPH R. PONGER ET AL.
(AC 41014)
DiPentima, C. J., and Moll and Sullivan, Js.
Syllabus
The plaintiff bank sought to foreclose a mortgage on certain real property
owned by the defendant T and her former spouse, P. T and P had
executed a mortgage deed, and P had executed a note in favor of a
predecessor in interest of the plaintiff. The note was later assigned to
the plaintiff. After P failed to make payments pursuant to the note, the
plaintiff advised him that the note and mortgage were in default, and
mailed notice of the default addressed to him, but not to T, at the address
of the property at issue, at which P no longer lived at the time that the
plaintiff mailed the notice to him there. In the absence of a cure of the
default, the plaintiff thereafter elected to accelerate the amount due
under the note. T claimed that the plaintiff had failed to provide her
with proper notice of the default and acceleration of the note when it
sent notice to the property that was addressed to P. The trial court
rendered judgment of strict foreclosure for the plaintiff, concluding,
inter alia, that the notice of default and acceleration was sent to T as
a joint tenant of the mortgaged property and a joint obligor on the
mortgage deed. On T’s appeal to this court, held that the trial court
properly rendered judgment of strict foreclosure for the plaintiff, as
that court correctly concluded that the notice requirement under the
mortgage was satisfied because notice to one joint tenant or joint obligor
constitutes notice to the other; because T conceded that, at all relevant
times, she and P were joint tenants with respect to the subject property,
it was not in dispute that T and P continued as joint obligors under the
mortgage, and T did not dispute that her signature was on the mortgage,
notice to P constituted notice to T.
Argued November 29, 2018—officially released July 2, 2019
Procedural History
Action to foreclose a mortgage on certain real prop-
erty of the named defendant et al., and for other relief,
brought to the Superior Court in the judicial district of
Stamford-Norwalk, where the court, Mintz, J., granted
the plaintiff’s motion for summary judgment as to liabil-
ity as against the named defendant; thereafter, the
court, Hon. A. William Mottolese, judge trial referee,
accepted the parties’ stipulation of facts, and the matter
was tried to the court, Hon. A. William Mottolese, judge
trial referee; judgment of strict foreclosure, from which
the defendant Theresa Ponger appealed to this court.
Affirmed.
Colin B. Connor, for the appellant (defendant The-
resa Ponger).
Christopher J. Picard, for the appellee (plaintiff).
Opinion
SULLIVAN, J. The defendant Theresa Ponger appeals
from a judgment of strict foreclosure rendered by the
trial court.1 On appeal, the defendant’s principal claim is
that the court erred when it concluded that the plaintiff,
Deutsche Bank National Trust Company, as Trustee, in
Trust, for Registered Holders of Long Beach Mortgage
Loan Trust 2006-WL3, Asset-Backed Certificates, Series
2006-WL3, had provided notice of default and accelera-
tion to her when it sent notice to the subject property
addressed to her former spouse, Joseph R. Ponger
(Ponger), who no longer resided at the property.
Because the court correctly held that the notice require-
ment under the mortgage was satisfied because notice
to one joint tenant or joint obligor constitutes notice
to the others, we affirm the judgment of the trial court.
The parties stipulated to the following relevant facts.
On September 7, 2005, Ponger executed a note in favor
of Long Beach Mortgage Company in the principal
amount of $420,000. The note was endorsed in blank
and supplied to the plaintiff prior to the commencement
of this action. Also on September 7, 2005, Ponger and
the defendant executed a mortgage deed in favor of
Long Beach Mortgage Company on property located at
23 Macintosh Road, Norwalk. The mortgage was
recorded in the Norwalk land records on September
13, 2005.2 The plaintiff is the present holder of the note.
On or about December 6, 2013, by letter addressed
to Ponger at 23 Macintosh Road, Norwalk, Connecticut
06857, the plaintiff advised him that the note and mort-
gage were in default due to his failure to make the
required monthly payments.3 Notice of the aforemen-
tioned default was not addressed to the defendant.4 In
the absence of a cure of the default, the plaintiff elected
to accelerate the amount due under the note. On April
15, 2014, the plaintiff provided Ponger and the defen-
dant notice of their rights under the General Statutes
as they relate to the Emergency Mortgage Assistance
Program. See General Statutes § 8-265cc et seq. The
record further indicates that Ponger failed to make pay-
ments pursuant to the note from July 1, 2013, to the
date of the joint stipulation, May 9, 2017.
The present action was commenced on October 13,
2015, approximately eighteen months after the Emer-
gency Mortgage Assistance Program notice was mailed
to the subject property. On May 5, 2016, after the expira-
tion of the court approved foreclosure mediation
period, the defendant filed a timely answer asserting,
as a special defense, that the plaintiff had failed to
provide her with proper notice of default and accelera-
tion. Thereafter, on June 2, 2016, the plaintiff filed a
motion for summary judgment as to both Ponger and the
defendant. The court granted the motion with respect
to Ponger but denied the motion with respect to the
defendant. On May 16, 2017, the parties filed a joint
stipulation of facts with the court as to the remaining
issues in dispute. On September 6, 2017, the court issued
its memorandum of decision finding in favor of the
plaintiff. The court determined that ‘‘[r]esolution of this
issue is controlled squarely by Citicorp Mortgage, Inc.
v. Porto, 41 Conn. App. 598, 600–604, 677 A.2d 10
(1996),’’5 and, thus, concluded in relevant part that the
‘‘notice of default and acceleration was sent to [the
defendant] as a joint tenant of the mortgaged property
and a joint obligor on the mortgage deed.’’ Thereafter,
the court rendered judgment of strict foreclosure
against both Ponger and the defendant, and set the
law day for January 16, 2018. This appeal followed.
Additional facts and procedural history will be set forth
as necessary.
The defendant’s principal claim on appeal is that the
court erred when it concluded that the notice require-
ment provision of the subject mortgage had been satis-
fied as to the defendant when the plaintiff provided
notice addressed exclusively to Ponger.6 Specifically,
the defendant claims that, because she is a ‘‘[b]orrower’’
under the terms of the mortgage, and because the notice
provision of the mortgage requires notice of default
and acceleration to be given to the ‘‘[b]orrower,’’ the
plaintiff was required to provide her individually with
notice. The defendant further claims that the court
improperly applied the legal principles set forth in Citi-
corp Mortgage, Inc. v. Porto, supra, 41 Conn. App. 600,
because the present case is distinguishable, and, as a
result of the improper application of Citicorp Mortgage,
Inc., a necessary condition precedent to the foreclosure
action was not met.7 We disagree.
As an initial matter, we note that the defendant’s
claim presents a mixed question of law and fact. ‘‘Where
the question whether proper notice was given depends
upon the construction of a written instrument or the
circumstances are such as lead to only one reasonable
conclusion, it will be one of law, but where the conclu-
sion involves the effect of various circumstances capa-
ble of diverse interpretation, it is necessarily one of
fact for the trier.’’ (Internal quotation marks omitted.)
Sunset Mortgage v. Agolio, 109 Conn. App. 198, 202,
952 A.2d 65 (2008). Because the plaintiff claims ‘‘that
the facts found were insufficient to support the court’s
legal conclusion, this issue presents a mixed question
of law and fact to which we apply plenary review.’’
Winchester v. McCue, 91 Conn. App. 721, 726, 882 A.2d
143, cert. denied, 276 Conn. 922, 888 A.2d 91 (2005).
We begin by addressing the defendant’s claim that
the court erred when it applied the legal principles set
forth in Citicorp Mortgage, Inc., to the present case. In
Citicorp Mortgage, Inc., this court addressed whether
notice to one joint tenant constituted notice to the oth-
ers under similar, but not identical, circumstances.
There, the defendant and his spouse were living apart,
and neither the defendant nor the spouse resided at
the subject property at the time notice was delivered.
Similar to the notice provision in the present case, the
relevant notice provision provided: ‘‘Unless applicable
law requires a different method, any notice that must
be given to me under this note will be given by delivering
it or by mailing it first class to me at the property
address above or at a different address if I give the
note holder notice of my different address.’’ (Internal
quotation marks omitted.) Citicorp Mortgage, Inc. v.
Porto, supra, 41 Conn. App. 600 n.4. Unlike like the
present case, in which the defendant is a signatory
only on the subject mortgage, the defendant in Citicorp
Mortgage, Inc., was both a signatory on the note and
a signatory on the corresponding mortgage.
This court concluded that, although ‘‘proper notice
of acceleration is a necessary condition precedent to
an action for foreclosure . . . the plaintiff provided the
defendant with proper notice by mailing the notice of
acceleration to [a joint tenant of the defendant].’’ Id.,
603. This court further concluded that, ‘‘[w]hile it
appears that service of a notice upon one tenant in
common is not usually regarded as binding upon the
others, unless they are engaged in a common enterprise,
the rule is different where the relation is that of a joint
tenancy. In such a case, it is said that notice to one of
them is binding upon all. 20 Am. Jur. 2d, Cotenancy
and Joint Ownership § 113 (1995).’’ (Internal quotation
marks omitted.) Citicorp Mortgage, Inc. v. Porto, supra,
41 Conn. App. 603.
Largely informed by our Supreme Court’s decision
in Katz v. West Hartford, 191 Conn. 594, 600, 469 A.2d
410 (1983), which reaffirmed long-standing precedent
that ‘‘[i]n the case of cofiduciaries [and joint tenants]
notice to one is deemed to be notice to the other,’’
this court’s decision in Citicorp Mortgage, Inc., also
restated the long-standing principle that ‘‘[n]otice to
one of two joint obligors conveys notice to the other
with respect to matters affecting the joint obligation.
United States v. Fleisher Engineering & Construction
Co., 107 F.2d 925, 929 (2d Cir. 1939).’’ (Emphasis added.)
Citicorp Mortgage, Inc. v. Porto, supra, 41 Conn. App.
603–604. Despite the foregoing, the defendant claims
that the trial court misapplied the aforementioned stan-
dards because, unlike the defendant in Citicorp Mort-
gage, Inc., who was both a signatory on the note and
corresponding mortgage, she was not a signatory on
the subject note. We find the defendant’s claim unper-
suasive.
In a recent decision, this court addressed a similar
claim. See Citibank, N.A. v. Stein, 186 Conn. App. 224,
199 A.3d 57 (2018), cert. denied, 331 Conn. 903, 202
A.3d 373 (2019).8 In Citibank, N.A., the defendant
argued that, because he was a signatory on the subject
mortgage but not a signatory on the corresponding note,
notice to his former spouse, who was the sole signatory
on the note, was not effective as to him. Id., 250 n.21.
This court held that, because the defendant signed the
mortgage instrument, thereby pledging the property as
security for the debt obligation created by the note,
which was signed by the former spouse, the defendant
was a joint obligor as to the mortgage and that the notice
provided to his former spouse, despite their contrasting
endorsements, satisfied the notice requirements under
the mortgage. Id., 249–50, 250 n.21.
Critically, at oral argument before this court, the
defendant conceded that, at all relevant times, she and
Ponger were joint tenants with respect to the subject
property.9 See Katz v. West Hartford, supra, 191 Conn.
600. Furthermore, it is not in dispute that the defendant
and Ponger continued as joint obligors under the sub-
ject mortgage. See Citicorp Mortgage, Inc. v. Porto,
supra, 41 Conn. App. 603–604. Further still, the defen-
dant has not challenged the stipulation or otherwise
disputed that her signature is on the mortgage. Accord-
ingly, we conclude that the present case falls squarely
within the ambit of this court’s decision in Citicorp
Mortgage, Inc., and, therefore, the notice to Ponger
constituted notice to the defendant.
The judgment is affirmed and the case is remanded
for the purpose of setting new law days.
In this opinion the other judges concurred.
1
Joseph R. Ponger was also a defendant at trial but does not appeal from
the judgment of strict foreclosure. In this opinion, we refer to Theresa Ponger
as the defendant and to Joseph R. Ponger as Ponger. Several subsequent
encumbrancers also were named as defendants, but they are not parties to
this appeal.
2
By virtue of assignments of the mortgage from Long Beach Mortgage
Company to Deutsche Bank National Trust Company, as Trustee for Long
Beach Mortgage Trust 2006-WL3, dated April 7, 2010, and recorded June 11,
2010, in volume 7200 at page 113 of the Norwalk land records, and thereafter
from Deutsche Bank National Trust Company, as Trustee for Long Beach
Mortgage Trust 2006-WL3 to the plaintiff, dated August 20, 2015, and recorded
October 9, 2015, in volume 8244 at page 101 of the Norwalk land records,
the plaintiff became the mortgagee of record.
3
The notice provision of the subject mortgage provides in relevant part:
‘‘Any notice to Borrower provided for in this Security Instrument shall be
given by delivering it or by mailing it by first class mail unless applicable
law requires use of another method. The notice shall be directed to the
Property Address or any other address Borrower designates by notice to
Lender.’’ The subject mortgage defines the ‘‘[b]orrower’’ as ‘‘Joseph Ponger
and Theresa Ponger.’’
4
Relatedly, the defendant claims that the court erred when it concluded
that the plaintiff’s admission that notice was not individually addressed to
the defendant did not preclude judgment of strict foreclosure. Because the
plaintiff’s admission is not legally significant as to the defendant’s claim on
appeal, we decline to address it.
5
The principal issue before the trial court essentially was identical to the
issue now presented on appeal, namely, whether the plaintiff was required
to provide the defendant with individual notice of default and acceleration
pursuant to the notice provision in the subject mortgage.
6
In addition, the defendant claims that, even assuming arguendo that she
received the notice sent by the plaintiff to Ponger, the notice failed to comply
with certain requirements set forth in the mortgage deed and, thus, was
deficient. The defendant failed to raise this distinct claim before the trial
court and, therefore, we decline to review it. See DiMiceli v. Cheshire, 162
Conn. App. 216, 229–30, 131 A.3d 771 (2016) (‘‘Our appellate courts, as a
general practice, will not review claims made for the first time on appeal.
We repeatedly have held that [a] party cannot present a case to the trial
court on one theory and then seek appellate relief on a different one . . . .
[A]n appellate court is under no obligation to consider a claim that is not
distinctly raised at the trial level. . . . [B]ecause our review is limited to
matters in the record, we [also] will not address issues not decided by the
trial court.’’ [Internal quotation marks omitted.]).
7
Additionally, in her brief the defendant argues that the court erred when
it concluded that she and Ponger were joint tenants as to the subject prop-
erty. At oral argument, however, the defendant conceded that, at all relevant
times, she remained a joint tenant to the subject property.
8
Citibank, N.A. v. Stein, supra, 186 Conn. App. 224, was officially released
two days prior to oral argument. We note that neither the plaintiff nor the
defendant chose to submit invited post argument memoranda to address
its relevancy. See Practice Book § 67-10.
9
See footnote 7 of this opinion.