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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, forthe 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 judgment 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 relevant 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 Mortgage 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 modification. 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 defendant 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 determined 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 further determined that none of the defendant’s special

defenses had merit. The plaintiff filed a motion for judgment 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

light most favorable to the nonmoving party. . . . 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 genuine issue of fact exists justifying a trial.’’ (Citation omitted; 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 determined that the defendant’s defense alleging modification was ‘‘without foundation’’ because the exhibits did

not include any modified mortgage notes or other documents 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 material fact by suggesting that there was an oral modification. See Norse Systems, Inc. v. Tingley Systems, Inc.,

49 Conn. App. 582, 590, 715 A.2d 807 (1998) (‘‘[a] material 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 complied 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);4see 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 Gardens Co., 23 Conn. App. 741, 745, 583 A.2d 1331, cert.

denied, 217 Conn. 811, 587 A.2d 153 (1991). The defendant 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, September, and October, 2009. The total payments the defendant 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 consideration. 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 Documentation 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 supplement (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 Documents and that the Loan Documents will not be modified unless and until (i) [the defendant] meet[s] all of

the conditions required for modification, (ii) [the defendant] receive[s] a full and executed copy of a modification 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 Documents 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 pastdue 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 pursuant 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 activity on the default account’’ provided that the defendant

executed the agreement and paid monthly installments

of $930. Paragraph 9 of the agreement provided: ‘‘Customer 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 5

8 and 9 of the November 2009

repayment agreement. According to the clear language

of the repayment agreements, agreed to by the defendant, those agreements were not modifications of the

original loan agreement, but merely suspended foreclosure proceedings. See Connecticut National Bank v.

Rehab Associates, 300 Conn. 314, 319, 12 A.3d 995 (2011)

(interpretation of definitive contract language is question 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 sufficient 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 effectively provided for a brief suspension of foreclosure

activity to give the defendant the conditional opportunity 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 errin 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 correctness 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 plaintiff had submitted into evidence a July 24, 2012 appraisal

that valued the property at $130,000. The defendant

stated atthe hearing that, according to various affidavits

by the plaintiff’s appraisers, the property had been valued 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 further 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 judgment 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 Registration 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.