Deutsche Bank Trust Co. Americas v. Degennaro

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DEUTSCHE BANK TRUST COMPANY AMERICAS,
TRUSTEE v. LYNN DEGENNARO ET AL.
(AC 35149)
Beach, Robinson and Flynn, Js.*
Argued December 2, 2013—officially released April 29, 2014
(Appeal from Superior Court, judicial district of
Ansonia-Milford, Hon. John W. Moran, judge trial
referee.)
Steven P. Kulas, for the appellant (named defendant).
Marissa Delinks, with whom, on the brief, was
Andrew L. Baldwin, for the appellee (substitute
plaintiff).
Opinion
BEACH, J. The defendant Lynn DeGennaro1 appeals
from the judgment of strict foreclosure following the
summary judgment rendered in favor of the named
plaintiff, Deutsche Bank Trust Company Americas, as
trustee.2 The defendant claims that the trial court erred
in (1) granting the plaintiff’s motion for summary judg-
ment as to liability, and (2) rendering a judgment of
strict foreclosure. We affirm the judgment of the trial
court.
The following facts and procedural history are rele-
vant to this appeal. In 2010, the plaintiff brought an
action alleging that in December, 2003, the defendant
executed a promissory note in the amount of $154,700 in
favor of American Mortgage Network, Inc. (American),
which note was secured by a mortgage granted to Mort-
gage Electronic Registration Systems, Inc., as nominee
for American on property located at 9 East Hill Road,
Oxford, and that the defendant was in default on that
note. The defendant filed an answer and special
defenses, which included a defense of loan modifica-
tion. The plaintiff filed a motion for summary judgment
as to liability only, and submitted evidence in support
of its motion. The defendant filed an objection to the
motion for summary judgment and submitted evidence
in support of her objection.
The court granted the plaintiff’s motion for summary
judgment as to liability. The court found that the defen-
dant had obtained a loan in the amount of $154,700 on
December 8, 2003, and executed a promissory note
in favor of American. The defendant also executed a
mortgage dated December 8, 2003, as security for the
repayment of the promissory note. The court deter-
mined that ‘‘[b]y her own admission, the defendant has
defaulted on payment due under the promissory note,’’
and, accordingly the court found that there was no
genuine issues of fact regarding liability. The court fur-
ther determined that none of the defendant’s special
defenses had merit. The plaintiff filed a motion for judg-
ment of strict foreclosure, which the court granted. This
appeal followed.
I
The defendant first claims that the court erred in
granting the plaintiff’s motion for summary judgment
as to liability. We disagree.
‘‘The standard of review of motions for summary
judgment is well settled. Practice Book § 17-49 provides
that summary judgment shall be rendered forthwith if
the pleadings, affidavits and any other proof submitted
show that there is no genuine issue as to any material
fact and that the moving party is entitled to judgment
as a matter of law. In deciding a motion for summary
judgment, the trial court must view the evidence in the
party moving for summary judgment has the burden of
showing the absence of any genuine issue of material
fact and that the party is, therefore, entitled to judgment
as a matter of law. . . . On appeal, we must determine
whether the legal conclusions reached by the trial court
are legally and logically correct and whether they find
support in the facts set out in the memorandum of
decision of the trial court. . . . Our review of the trial
court’s decision to grant [a moving party’s] motion for
summary judgment is plenary.’’ (Internal quotation
marks omitted.) Hopkins v. Balachandran, 146 Conn.
App. 44, 51, 76 A.3d 703 (2013).
‘‘In seeking summary judgment, it is the movant who
has the burden of showing the nonexistence of any
issue of fact. . . . To satisfy his burden the movant
must make a showing that it is quite clear what the
truth is, and that excludes any real doubt as to the
existence of any genuine issue of material fact. . . .
[I]t is only [o]nce [the] [movant’s] burden in establishing
his entitlement to summary judgment is met [that] the
burden shifts to [the] [nonmovant] to show that a genu-
ine issue of fact exists justifying a trial.’’ (Citation omit-
ted; internal quotation marks omitted.) Romprey v.
Safeco Ins. Co. of America, 310 Conn. 304, 319–20, 77
A.3d 726 (2013).
The defendant argues that the court erred in granting
the plaintiff’s motion for summary judgment because
the evidence submitted with her objection to the motion
for summary judgment raised a genuine issue as to
whether there was both an oral modification and a
written modification to the terms of the loan.3 The court
found, however, that the defendant had defaulted on
payment due under the promissory note, and deter-
mined that the defendant’s defense alleging modifica-
tion was ‘‘without foundation’’ because the exhibits did
not include any modified mortgage notes or other docu-
ments that might have raised a genuine issue as to
whether there had been an effective modification.
The defendant did not create a genuine issue of mate-
rial fact by suggesting that there was an oral modifica-
tion. See Norse Systems, Inc. v. Tingley Systems, Inc.,
49 Conn. App. 582, 590, 715 A.2d 807 (1998) (‘‘[a] mate-
rial fact is a fact that will make a difference in the result
of the case’’ [internal quotation marks omitted]). In her
affidavit, the defendant states that an oral modification
was entered into. This fact, however, is not material
because, as a matter of law, an oral modification would
be ineffective.
The alleged oral modification could not have com-
plied with the statute of frauds pursuant to General
Statutes § 52-550, which provides in relevant part: ‘‘(a)
No civil action may be maintained in the following cases
unless the agreement . . . is made in writing and
signed by the party . . . to be charged . . . (4) upon
any agreement for the sale of real property or any inter-
est in or concerning real property . . . or (6) upon any
agreement for a loan in an amount which exceeds fifty
thousand dollars. . . .’’ ‘‘A modification of a written
agreement [for a loan exceeding $50,000] must be in
writing to satisfy the statute of frauds.’’ Union Trust
Co. v. Jackson, 42 Conn. App. 413, 419, 679 A.2d 421(1996);4 see also General Statutes § 52-550 (a) (no action
may be maintained upon loan agreement exceeding
$50,0000 unless agreement made in writing).
The alleged oral modification was not effective for
the additional reason that there was no evidence of
adequate consideration. ‘‘A modification of an
agreement must be supported by valid consideration
and requires a party to do, or promise to do, something
further than, or different from, that which he is already
bound to do.’’ Thermoglaze, Inc. v. Morningside Gar-
dens Co., 23 Conn. App. 741, 745, 583 A.2d 1331, cert.
denied, 217 Conn. 811, 587 A.2d 153 (1991). The defen-
dant stated in her affidavit that she was advised to
skip the July, 2009 regular payment and to make three
consecutive payments of $1456.23 in August, Septem-
ber, and October, 2009. The total payments the defen-
dant states that she was required to make under the
alleged modification total $4368.69, which is less than
the amount she was required to pay for that four month
period under the terms of the loan agreement, which,
at $1315.92 per month, totaled $5263.68. Payment of an
existing obligation does not constitute valid consider-
ation. See Willamette Management Associates, Inc. v.
Palczynski, 134 Conn. App. 58, 73, 38 A.3d 1212 (2012)
(‘‘if the undertaking by one party is simply to perform
the whole or part of what it promised in the original
contract, this will not support a promise by the other
party to perform what it had previously agreed to do
and something more; or, to put the same matter in other
words, an existing contract cannot be altered by mutual
assent by an agreement merely to give one party a right
or privilege, or subject the other party to a burden that
it did not previously have’’[internal quotation marks
omitted]).
The defendant also argues that the court improperly
granted summary judgment because a genuine issue of
material fact existed in that the terms of the note and
mortgage were modified by a ‘‘written offer from the
plaintiff to the defendant.’’ It is not clear what writing
the defendant is referring to. The written agreements
that were submitted by the parties include the original
loan agreement, a July, 2009 ‘‘trial period plan,’’ and
November, 2009 and January, 2010 repayment
agreements.
The trial period plan, which the plaintiff attached to
its supplemental memorandum in support of summary
judgment, undisputedly was entered into in July, 2009,
between the defendant and GMAC Mortgage, LLC
(GMAC),5 the loan service provider. This agreement
was labeled ‘‘Home Affordable Modification Program
Loan Workout Plan (Step One of Two-Step Documenta-
tion Process).’’ It stated that the defendant was unable
to afford her mortgage payments and that the lender,
GMAC, if conditions were met, would ‘‘provide [the
defendant] with a Loan Modification Agreement . . .
as set forth in Section 3, that would amend and supple-
ment (1) the Mortgage on the Property, and (2) the Note
secured by the Mortgage.’’ Section 3 of the agreement
provided for a ‘‘Trial Period Payment’’ plan in which
the defendant would pay $1453.26 monthly for August,
September, and October, 2009. The trial period payment
plan provided that the defendant expressly understood
that the ‘‘[p]lan is not a modification of the Loan Docu-
ments and that the Loan Documents will not be modi-
fied unless and until (i) [the defendant] meet[s] all of
the conditions required for modification, (ii) [the defen-
dant] receive[s] a full and executed copy of a modifica-
tion agreement, and (iii) the Modification Effective Date
has passed.’’ The agreement also stated: ‘‘I further agree
and understand that the Lender will not be obligated
or bound to make any modification of the Loan Docu-
ments if I fail to meet any one of the requirements under
this Plan.’’
On July 31, 2009, the defendant filed for bankruptcy.
By letter dated October 16, 2009, the plaintiff’s counsel
returned the defendant’s check dated September 22,
2009, in the amount of $1453.26 and made payable to
GMAC, to the defendant’s counsel.6 By letter dated
October 16, 2009, the plaintiff notified the defendant
that she was in default on the loan, and unless full
payment of past due amounts was received, the loan
would be accelerated, the obligation declared due, and
foreclosure proceedings begun. The letter stated: ‘‘This
is a demand for payment of the total amount due and
owing as of the date of this letter, which is as follows
. . . total amount due $4493.25.’’ The letter indicated
that the defendant ‘‘may cure the default by paying the
total amount due . . . within thirty (30) days from
receipt of this letter. . . . Payments must be made in
certified funds or cashier’s check. If funds tendered are
not honored for any reason, the default will not be
cured. . . . Unless we receive full payment of all past-
due amounts, we will accelerate the maturity of the
loan, declare the obligation due and payable without
further demand, and begin foreclosure proceedings.’’
The defendant offered no evidence before the trial court
that she had repaid the amount due within thirty days.
Rather, the defendant attached as an exhibit to her
opposition to summary judgment, a repayment
agreement, dated November 28, 2009, which provided
that ‘‘[t]here is an outstanding debt to the Lender pursu-
ant to a note and mortgage or deed of trust or equivalent
security instrument . . . executed on 12/08/03, in the
original principal amount of $15,4700.00. . . . The
account is presently in default for non-payment to
Lender of the 08/01/09 installment and all subsequent
monthly payments due on the Mortgage for principal,
interest, escrows and charges.’’ The defendant signed
this agreement,7 admitting to being in default on the
note and mortgage.
The November, 2009 repayment agreement provided
in paragraph 5 for a payment schedule in which GMAC
agreed to ‘‘suspend, but not terminate foreclosure activ-
ity on the default account’’ provided that the defendant
executed the agreement and paid monthly installments
of $930. Paragraph 9 of the agreement provided: ‘‘Cus-
tomer understands and agrees that all other provisions,
covenants and agreements set forth in the Mortgage
shall remain in full force and effect during the duration
of this Agreement and thereafter, and this Agreement
shall not constitute a modification or extension of
the Mortgage.’’ (Emphasis added.) The January, 2010
repayment agreement also contained the same language
as that in paragraphs 58 and 9 of the November 2009
repayment agreement. According to the clear language
of the repayment agreements, agreed to by the defen-
dant, those agreements were not modifications of the
original loan agreement, but merely suspended foreclo-
sure proceedings. See Connecticut National Bank v.
Rehab Associates, 300 Conn. 314, 319, 12 A.3d 995 (2011)
(interpretation of definitive contract language is ques-
tion of law subject to plenary review by this court).
The defendant has not directed us to any language in
any written agreement that provides that the note and
mortgage had been modified.
The defendant, then, did not submit evidence suffi-
cient to create a genuine issue of material fact as to
whether there had been a modification of the original
mortgage note or the existence of a default. The clear
and unambiguous meaning of the 2009 documents effec-
tively provided for a brief suspension of foreclosure
activity to give the defendant the conditional opportu-
nity to renegotiate. The documents clearly and
expressly did not modify the obligations set forth in
the original loan agreement. Accordingly, there is no
genuine issue of material fact as to whether the original
loan agreement was modified, and, therefore, the court
did not err in granting the plaintiff’s motion for summary
judgment as to liability.
II
The defendant next claims that the court erred in
rendering a judgment of strict foreclosure. We disagree.
‘‘The standard of review of a judgment of foreclosure
by sale or by strict foreclosure is whether the trial court
abused its discretion. . . . In determining whether the
trial court has abused its discretion, we must make
every reasonable presumption in favor of the correct-
ness of its action. . . . Our review of a trial court’s
exercise of the legal discretion vested in it is limited
to the questions of whether the trial court correctly
applied the law and could reasonably have reached
the conclusion that it did. . . . Where a foreclosure
defendant’s liability has been established by summary
judgment, all that remains for the court to determine
at the judgment hearing is the amount of the debt and
the terms of the judgment.’’ (Citation omitted; internal
quotation marks omitted.) GMAC Mortgage, LLC v.
Ford, 144 Conn. App. 165, 186, 73 A.3d 742 (2013).
On October 10, 2012, after a hearing concerning the
plaintiff’s debt and the value of the property, the court
rendered a judgment of strict foreclosure. The debt
amounted to $146,736.52, and the fair market value of
the property was determined to be $130,000. The plain-
tiff had submitted into evidence a July 24, 2012 appraisal
that valued the property at $130,000. The defendant
stated at the hearing that, according to various affidavits
by the plaintiff’s appraisers, the property had been val-
ued at $100,000 in March, 2010, $120,000 in May, 2011,
and $130,000 in July, 2012. The defendant argued that,
in light of the economic recession, the later increased
value was not credible.9
The defendant argues that the court erred in
determining the fair market value of the property. She
contends that ‘‘[m]indful of these economic times, the
court should have required more specific evidence of
the value of the subject property.’’ The defendant fur-
ther argues that ‘‘the proposed value submitted by the
plaintiff was not credible.’’ The court had before it the
July, 2012 affidavit from the plaintiff’s appraiser
assessing the fair market value of the property to be
$130,000. The court’s finding in this regard was not
clearly erroneous. Accordingly, we cannot conclude
that the court abused its discretion in rendering a judg-
ment of strict foreclosure.
The judgment is affirmed and the case is remanded
for the purpose of setting new law days.
In this opinion the other judges concurred.
* The listing of the judges reflects their seniority status on this court as
of the date of oral argument.
1
Lynn DeGennaro is also known as Lynsie Justine DeGennaro. Mortgage
Electronic Registration Systems, Inc., was also named as a defendant in
this action. DeGennaro is the only defendant involved in this appeal, and,
for the sake of clarity, we refer in this opinion to her as the defendant.
2
On October 10, 2012, the court granted the named plaintiff’s motion to
substitute Deutsche Bank Trust Company Americas, as Trustee for RALI
2004-QS6, as the plaintiff. For convenience, we refer in this opinion to the
named plaintiff and the substitute plaintiff collectively as the plaintiff.
3
The defendant also argues that she ‘‘consistently denied’’ that she had
defaulted on the terms of the mortgage. To the extent that the defendant’s
argument in this regard relies on the existence of a loan modification, it
fails because we conclude that there is no genuine issue of material fact as
to the nonexistence of a valid loan modification agreement. Furthermore,
the defendant asserts in her appellate brief that she denied in her answer
that she was in default. A denial in an answer does not by itself create a
genuine issue of material fact. See Busconi v. Dighello, 39 Conn. App. 753,
770–72, 668 A.2d 716 (1995), cert. denied, 236 Conn. 903, 670 A.2d 321 (1996).
4
As recognized in Union Trust Co. v. Jackson, supra, 42 Conn. App. 419,
the statute of frauds may be avoided by partial performance, or equitable
reliance. No sufficient facts in avoidance were offered in this case.
5
The plaintiff submitted as an exhibit attached to its motion for summary
judgment an assignment of the mortgage from Mortgage Electronic Registra-
tion Systems, Inc., to the plaintiff. This evidence was undisputed.
6
The plaintiff argued in its memorandum of law supporting its motion
for summary judgment that the defendant failed to make payments beginning
in September, 2009, and failed to cure her default.
7
The January, 2010 repayment agreement generally contained the same
language.
8
Paragraph 5 of the January, 2010 repayment agreement did not specify
an amount due per month, but, nonetheless, did specify that in return for
certain monthly payments GMAC agreed to ‘‘suspend, but not terminate
foreclosure activity on the default account.’’
9
Additionally, the defendant appears to claim that the court erred by
ascribing too high a value. In the context of strict foreclosure, it is difficult
to see how an overly generous assessment of fair market value could harm
the defendant.