U.S. BANK NATIONAL ASSOCIATION, TRUSTEE
GLYNNIS SORRENTINO ET AL
Argued, February 11, 2015
Action to foreclose a mortgage on certain real property owned by the defendant Gallery at 85 Main, LLC, and for other relief, brought to the Superior Court in the judicial district of Middlesex, where the defendants filed counterclaims; thereafter, the court, Aurigemma, J., granted the plaintiff's motion for summary judgment as to liability on the complaint and as to the defendants' counterclaims, and rendered judgment accordingly, from which the defendants appealed to this court; subsequently, this court dismissed the appeal in part.
The plaintiff bank sought to foreclose a mortgage on certain of the defendants' real property. The court referred the parties to the foreclosure mediation program, and the mediator issued a final report indicating that the parties were unable to reach any agreement. Thereafter, the defendants filed five counterclaims, one alleging that the plaintiff failed to provide the defendants with the proper loan documents in violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., and four alleging a common set of facts giving rise to certain allegedly improper conduct by the plaintiff during the foreclosure mediation proceedings. The plaintiff did not move to strike any of the counterclaims, but filed a motion for summary judgment on the counterclaims, which was supported by a memorandum of law with affidavits and other documentary evidence. In its memorandum, the plaintiff argued that the counterclaims regarding the mediation proceedings involved matters unrelated to the making, validity, and enforcement of the mortgage or note, and, as a result, were improper because the counterclaims were not part of the same transaction that was the subject of the foreclosure complaint. The defendants filed two memoranda in opposition to the plaintiff's motion for summary judgment, which focused on the issue of whether the plaintiff had standing to bring the foreclosure action. The defendants did not submit any affidavits or documentary evidence to support their opposition to summary judgment, and neither memorandum addressed the substance of the plaintiff's legal challenges to the defendants' counterclaims. Furthermore, neither memorandum argued that it was improper for the court to consider the plaintiff's claim that the counterclaims were legally insufficient in adjudicating the motion for summary judgment, or that the plaintiff had waived its right to challenge the joinder of the counterclaims by failing to file a motion to strike. The trial court granted the plaintiff's motion for summary judgment, concluding that the defendants' memoranda opposing summary judgment did not address the plaintiff's arguments regarding their counterclaims and failed to present any supporting evidence. On appeal to this court, the defendants claimed that the trial court improperly granted the motion for summary judgment with respect to the foreclosure mediation counterclaims because that court relied on the defendants' failure to submit any evidence in support of their memoranda opposing summary judgment, which they were not required to do in light of the fact that the plaintiff's evidence was unresponsive to the factual allegations in the counterclaims and, therefore, the plaintiff failed to meet its initial burden of showing the lack of a genuine issue of material fact.
1. The trial court properly rendered summary judgment in favor of the plaintiff as to the defendants' foreclosure mediation counterclaims, there having been no disputed issues of material facts relative to whether those counterclaims were legally insufficient, as the defendants clearly understood that the plaintiff's motion for summary judgment challenged the legal sufficiency of those counterclaims, which they failed to address, and the defendants could not have benefitted from an opportunity to replead those counterclaims; the defendants' counterclaims were legally insufficient because they were filed in contravention of the applicable rule of practice (§ 10-10), which, in a foreclosure action, requires that a counterclaim have a reasonable nexus to the making, validity, or enforcement of the note in order to be properly joined with the complaint, and the allegations in the defendants' counterclaims did not satisfy that transaction test, as they addressed the plaintiff's alleged improper conduct during the foreclosure mediation program, which did not begin until after the execution of the note and mortgage and the commencement of the foreclosure action, and, as a result, no permissible corrections could be repleaded to transform the counterclaims to comply with § 10-10.
2. This court found unavailing the defendants' claim that the trial court should have denied the motion for summary judgment because the plaintiff's evidence in support of that motion was unresponsive to the factual allegations in the defendants' mediation counterclaims; it was unnecessary for the plaintiff to submit evidence directly responding to the factual allegations in the counterclaims because the plaintiff was not disputing any of the factual allegations but, rather, was making a purely legal argument, relying on undisputed facts, that the mediation counterclaims were legally insufficient and improperly joined.
Hugh D. Hughes, with whom, on the brief, was John J. Carta, Jr., for the appellants (defendants).
Geraldine A. Cheverko, for the appellee (plaintiff).
Alvord, Prescott and Pellegrino, Js.
[158 Conn.App. 86] In this mortgage foreclosure action, the defendants, Glynnis Sorrentino and Gallery at 85 Main, LLC, appeal from the summary judgment on their counterclaims rendered in favor of the plaintiff, U.S. Bank National Association, as Trustee for J.P. Morgan Mortgage Acquisition Trust 2006-CH1, Asset Backed Pass-Through Certificates, Series 2006-CH1. The defendants claim that the court improperly granted the plaintiff's motion for summary judgment with respect to four of their five counterclaims because the affidavit and other evidence submitted in support of the motion for summary judgment failed to address the factual allegations underlying those counterclaims and, thus, did not [158 Conn.App. 87] demonstrate a lack of a genuine issue of material fact. The plaintiff argues on appeal, however, that the factual allegations in the counterclaims relate to activities that postdate the origination of the loan, the defendant's default and the plaintiff's commencement of this foreclosure action, and that, because they do not relate to the making, validity or enforcement of the mortgage, they fail as a matter of law. We agree with the plaintiff and, accordingly, affirm the judgment of the trial court.
The record reveals the following undisputed facts and procedural history. In February, 2006, Sorrentino executed a note in favor of Chase Bank USA, N.A., in the principle amount of $380,000. At the same time, to secure that note, Sorrentino executed a mortgage in favor of Chase Bank USA, N.A., on property located at 85 Main Street in Essex. In April, 2007, Sorrentino, by way of a quit claim deed, transferred her interest in the 85 Main Street property to Gallery at 85 Main, LLC, a limited liability company with Sorrentino as its sole member.
In June, 2009, the plaintiff filed the present action, alleging that the note was in default and seeking to [158 Conn.App. 88] foreclose the mortgage. On October 12, 2010, the court referred the parties to the foreclosure mediation program. See General Statutes § § 49-31 l through 49-31o. On May 3, 2012, the foreclosure mediator issued a final report indicating that the parties were unable to reach any agreement and referring the matter back to the court. The defendants ...