Essex Savings Bank v. Navin, No. 51 61 39 (Jan. 2, 1992)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT (113) In this action for foreclosure of mortgage and other relief, plaintiff has moved for summary judgment. Defendant Jeffrey Navin has filed an objection to the motion together with a memorandum of law and supporting documents.

On motion for summary judgment, the law requires that the motion be granted if the pleadings, affidavits and other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment vs. a matter of law. Conn. Prac. BK Section 384.

Here there is no question of fact as to the existence of the debt and the execution of the promisory note as well as the mortgage deed securing the note which is sought to be foreclosed. There does not appear to be any question that the note is in default of payment and that defendant is in possession of the premises.

The sole question of fact has been raised by defendant under a special defense. He has attempted to support this defense by an affidavit and other proof. Although these documents are vague on the point, it would appear that the problem arises out of a claim that when defendant acquired title to the property in questions, there were two mortgages against the property and he acquired title subject to these mortgages. It appears that at the time of closing, when defendant acquired title to the property, he was not aware of the two prior mortgages. He assumed that he was acquiring an unencumbered title and was giving a first mortgage to plaintiff. This was not the case. CT Page 916

Defendant has cited no statutory in case law which would support a defense based on the special defense which he seeks to interpose.

There is nothing to indicate that plaintiff's actions are in violation of General Statutes Section 42-110b(a).

There is no issue as to any material question of fact and plaintiff is entitled to judgment as a matter of law.

Accordingly, summary judgment as to liability only is rendered in favor of plaintiff. Other issues will be resolved in accordance with further orders of court.

This decision is subject to plaintiff filing a reply to defendants amended special defense within two weeks from the date of the filing of this decision.

PURTILL, J. [EDITORS' NOTE: THE CASE THAT PREVIOUSLY APPEARED ON THIS PAGE HAS BEEN MOVED TO CONN. SUP. PUBLISHED OPINIONS.] CT Page 926