Wilmington Savings Fund Society, FSB v. Schulz

Syllabus

The plaintiff bank sought to foreclose a mortgage on certain real property owned by the named defendant, S. S had executed a promissory note that was secured by the mortgage in favor of a predecessor bank. After S defaulted, another bank, B Co., became the holder of the note and the assignee of the mortgage. The original note, however, was lost while in the custody of B Co.'s loan servicer, C Co. Thereafter, B Co. assigned the mortgage to the plaintiff. After the plaintiff commenced the present foreclosure action, it filed a motion for summary judgment as to liability with attached exhibits, including sworn affidavits executed on behalf of C Co. by three of its employees, H, B, and G. The trial court granted the plaintiff's motion for summary judgment and rendered a judgment of strict foreclosure. S appealed to the Appellate Court, which affirmed the trial court's judgment. On the granting of certification, S appealed to this court, claiming, inter alia, that the plaintiff's secondary evidence in support of its motion for summary judgment was insufficient to prove that no genuine issue of material fact existed as to the plaintiff's ownership of the debt underlying the mortgage. Held: The Appellate Court improperly upheld the trial court's decision to grant the plaintiff's motion for summary judgment and the judgment of strict foreclosure, as the plaintiff failed to demonstrate that there was no genuine issue of material fact with respect to its ownership of the debt underlying the mortgage, and, accordingly, the Appellate Court's judgment was reversed, and the case was remanded with direction to reverse the trial court's judg- ment of strict foreclosure and for further proceedings. When a promissory note has been lost or misplaced, the plaintiff's ownership of the debt underlying the mortgage, which must be established prior to fore- closure, may be established through secondary evidence, such as an affidavit. Pursuant to the rules of practice (§ 17-46) and Connecti