December 8, 2015.
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.
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.
V. Lathouris, with whom was Richard M. Breen, for the
appellant (named defendant).
G. Tansley, with whom was Mary Barile Pierce, for the
Lavine and Prescott, Js. PRESCOTT, J. In this opinion the
other judges concurred.
Conn.App. 589] PRESCOTT, J.
defendant Asdrubal Alfaro appeals from the judgment of the
trial court denying his motion for an award of attorney's
fees pursuant to General Statutes §
42-150bb. 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.
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.
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
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. ...