CT Supreme Court Reverses Foreclosure Judgment Based on Insufficient Lost Note Affidavit
The Connecticut Supreme Court recently reversed a foreclosure judgment based on a lost note affidavit, holding that the three affidavits submitted in support of the plaintiff bank’s motion for summary judgment were each either inadmissible or lacking in sufficient detail and clarity to prove ownership of the debt underlying the mortgage.
As background, in 2007, the defendant borrowers executed a promissory note payable to a bank and secured by a mortgage. The defendants had been in default since March 1, 2010. The bank subsequently merged, and a second bank became the note holder and owner of the underlying debt in 2012. During the time that the second bank was the note holder, the original note was “lost, mislaid, misfiled, or destroyed” in the custody of the second bank’s servicer. The second bank then assigned the mortgage to the plaintiff bank in 2020, and filed an action to foreclose the same year.
In 2021, the plaintiff bank moved for summary judgment. In support, the plaintiff attached, among other documents, the mortgage and assignment. The plaintiff also provided three sworn affidavits from the servicer who lost the note. The first affidavit attached a copy of the note and stated that the second bank was the note holder on or before March 6, 2012, and that the note was lost while in the servicer’s possession. The other two affidavits made multiple statements concerning the plaintiff’s authority to foreclose the mortgage. The trial court rendered judgment of foreclosure, and the appellate court affirmed.
The Connecticut Supreme Court noted that because the plaintiff proceeded on only the equitable remedy of foreclosure, the plaintiff was required to prove that it was the owner of the debt and mortgage. The Court found that the servicer’s affidavits were not competent because of the affiants’ lack of personal knowledge, and because they were not sufficiently clear.
The first affidavit purported to provide evidence of plaintiff’s ownership of the debt, but it lacked an attestation of personal knowledge and failed to indicate that she was basing her assertions on qualifying business records. The second affidavit demonstrated personal knowledge of the defendants’ loan but did not include factual information to support bare assertions of the plaintiff’s ownership of the debt and entitlement to enforce it. The third affidavit only established that the second bank was the noteholder in 2012, and it did not show that the plaintiff subsequently became the noteholder.
Accordingly, the Connecticut Supreme Court found that the evidence the plaintiff bank presented was insufficient to show that there was no genuine issue of material fact with respect to its ownership of the note. It therefore reversed and directed that the trial court should reverse its judgment of foreclosure.
