Novastar Mortgage, Inc. v. Mendoza, No. Cv99 169865s (Jun. 22, 2000)

2000 Conn. Super. Ct. 8000

• Court: Connecticut Superior Court
• Decided: June 22, 2000
• Docket: No. CV99 169865S
• Status: Unpublished

Opinion

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION RE: MOTION FOR SUMMARY JUDGMENT (#122) The plaintiff, Novastar Mortgage, Inc. (Novastar), moves for summary judgment as to liability only against the defendants, Cesar M. Mendoza and Mendoza a/k/a Ysidora Mendoza a/k/a Indalecia Ysidora Mendoza, Isadora I. (the Mendozas) on the grounds no genuine issue of material facts exists and it is entitled to judgment as a matter of law. "It is well established that the exercise of an acceleration clause is proper upon an event of default as provided for and controlled by the terms of the note and the mortgage deed." CHFA v. John Fitch Court AssociatesLtd. Partnership, 49 Conn. App. 142, 150, 713 A.2d 900, cert. denied247 Conn. 908, 719 A.2d 901 (1998). Moreover, the "use of `shall' in the note creates a condition precedent that must be satisfied prior to foreclosure." Northwest Savings, F.A. v. Scherban, 47 Conn. App. 225,228, 702 A.2d 659 (1997), cert. denied, 244 Conn. 907, 714 A.2d 2 (1998). Here, the mortgage document provides in relevant part: "Lender shall give notice to Borrower prior to acceleration . . . . The notice shall further inform Borrower of the right to reinstate after acceleration . . .". Novastar's notice did not inform the Mendozas of the right to reinstate but rather stated "the loan will be reinstated only if you comply with certain conditions and pay certain costs." The language of Novastar's notice did not inform the Mendozas of their right to reinstate the note and mortgage. See Citicorp Mortgage, Inc. v.Castaldi, Superior Court, judicial district of New Haven at Meriden G.A. 7, Docket No. 243752 (August 11, 1995, Silbert, J.) ("Given the drastic nature of the foreclosure remedy, the requirements set forth in the note ought to be strictly construed."). Consequently, a genuine issue of material fact exists as to whether Novastar properly exercised the acceleration clause in the mortgage. Accordingly, the court denies Novastar's motion for summary judgment.

RODRIGUEZ, J.

EXHIBIT D August 18, 1998

NOTICE OF INTENT TO FORECLOSE Isadora I. Mendoza Cesar Mendoza 22-24 Dolsen Place Stamford, CT 06902

RE: Loan No. 0000009753 22-24 Dolsen Place Stamford, CT 06902 CT Page 8002

RETURN RECEIPT REQUESTED

Dear Mortgagors:

Your loan is in default. Scheduled installments of principal, interest, taxes and insurance for 07-01-98 and thereafter have not been paid. Please understand that we report delinquent mortgage payments to the major credit bureaus. This will affect your credit rating.

Please be aware that if this is a VA loan and you are an original veteran borrower or other liable obligor, we will notify the Veteran's Administration of our intent to foreclose.

A total of $4,345.24, including late charges, together with any paymentswhich may fall due in the meantime, must be paid no later than 09-17-98 to cure this breach of the loan agreement. Failure to do so may result in: (1) acceleration of the full principal balance (immediately due) and (2) the mortgage property being referred for foreclosure action.

After acceleration, the loan will be reinstated only if you comply with certain conditions and pay certain costs. Detailed information regarding the right of reinstatement and the terms of granting a reinstatement is available to you by calling or writing our office. You have the right under law to bring a court action to assert the non-existence of default or any other defense to acceleration and sale.

We regret that it has become necessary to take this step leading to acceleration of the loan balance and foreclosure. We trust that you realize the seriousness of the situation and will make every effort to cure the default. Please contact our office at 1-888-289-1208 if you need to discuss your account. You may be eligible for homeowner's counseling. Please call the Credit Counseling Center at 1-800-388-2227 for more information.

Sincerely,

Cynthia Best Loan Counselor

94 HUNGERFORD STREET * HARTFORD, CT which has the address of 22-24 DOLSEN PLACE, STAMFORD Connecticut 06902 ("Property Address") (Zip Code)

Initials: CT Page 8003

CONNECTICUT — Single Family — FNMA/FHLMC UNIFORM INSTRUMENT VMP-SR(CT)(9219) Form 3007 9/98 Amended 6/91 CTVDEED 401 CTVDEED

Page 1 of 5