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Connecticut Housing Finance Authority v. Alfaro

Appellate Court of Connecticut

March 8, 2016

CONNECTICUT HOUSING FINANCE AUTHORITY
v.
ASDRUBAL ALFARO ET AL

         Argued December 8, 2015.

          Action to foreclose a mortgage on certain real property owned by the named defendant, and for other relief, brought to the Superior Court in the judicial district of Fairfield, where the defendant Bank of America, N.A., was defaulted for failure to appear; thereafter, the defendant Rosibel Aguero was defaulted for failure to plead; subsequently, the plaintiff withdrew the action as to all defendants; thereafter, the court, Tyma, J., denied the named defendant's motion for attorney's fees; subsequently, the court denied the named defendant's motion to reargue, and the named defendant appealed to this court.

          SYLLABUS

         The plaintiff sought to foreclose a mortgage on certain real property of the defendant A, who challenged the plaintiff's standing to commence this action by way of a special defense filed with his answer. The plaintiff filed a motion for summary judgment, which A opposed on the same ground. The plaintiff then withdrew its motion for summary judgment and, thereafter, withdrew the action as to all of the parties pursuant to its statutory (§ 52-80) right to withdraw an action. Subsequently, the trial court denied A's motion for attorney's fees that was filed pursuant to the statute (§ 42-150bb) providing for the recovery of attorney's fees by a consumer who successfully defends an action based on a consumer contract. A appealed to this court, claiming that he was entitled to attorney's fees as the prevailing party because the plaintiff withdrew its action on the basis of his defense alleging lack of standing. Held that the trial court properly concluded that A had failed to prove that his defense was the reason that the plaintiff withdrew its action and, therefore, he was not entitled to recover attorney's fees under § 42-150bb; in order for a party to successfully defend an action for purposes of § 42-150bb, it must prevail on the merits of its answer or special defenses and here, there was no evidence in the record from which the trial court could have found that A prevailed on the merits of his defense challenging the plaintiff's standing, as the plaintiff withdrew the action prior to any hearing on the merits, and A offered no evidence at the hearing on the motion for attorney's fees to prove that the plaintiff withdrew the action in response to his defense.

         Peter V. Lathouris, with whom was Richard M. Breen, for the appellant (named defendant).

         Michael G. Tansley, with whom was Mary Barile Pierce, for the appellee (plaintiff).

         Gruendel, Lavine and Prescott, Js. PRESCOTT, J. In this opinion the other judges concurred.

          OPINION

Page 1257

          [163 Conn.App. 589] PRESCOTT, J.

          The defendant Asdrubal Alfaro[1] appeals from the judgment of the trial court denying his motion for an award of attorney's fees pursuant to General Statutes § 42-150bb.[2] On appeal, the defendant claims that the court improperly denied his motion for attorney's fees because it found that he did not successfully defend the foreclosure action instituted by the plaintiff, Connecticut Housing Finance Authority, who withdrew the action as a matter of right. We affirm the judgment of the trial court.

         The following facts and procedural history are relevant to this appeal. In May, 2004, the defendant executed a promissory note (note) for $216,500 payable to Guaranty Residential Lending, Inc. The note was secured by a mortgage on property located at 465 Greenwood Street in Bridgeport. On June 27, 2012, the plaintiff initiated this foreclosure action against the defendant, alleging that the mortgage had been assigned to it and that the defendant had defaulted on the note.

          [163 Conn.App. 590] On December 26, 2012, the defendant filed his answer with special defenses, one of which provided that the plaintiff lacked standing to bring and maintain this action because it was not a person or entity entitled to enforce the note and mortgage. On March 14, 2013, the plaintiff filed a motion for summary judgment, to which the defendant objected. In his objection, the defendant argued that the plaintiff lacked standing to bring this action because the plaintiff cannot prove that it is the holder of the note as it does not have possession of the original note; it only has possession of a copy of the original note, which does not contain any assignment to the plaintiff from Guaranty Residential Lending, Inc.

         On April 24, 2013, the plaintiff withdrew its motion for summary judgment. Subsequently, on June 4, 2013, before any hearing on the merits was held, the plaintiff withdrew its foreclosure action as a matter of right pursuant to General Statutes § 52-80.[3] ...


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