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Bank of New York v. Savvidis

Court of Appeals of Connecticut

July 25, 2017

BANK OF NEW YORK, TRUSTEE
v.
ATHINA SAVVIDIS ET AL.

         SYLLABUS

          Argued April 25, 2017

          Joseph DaSilva, Jr., with whom, on the brief, was Marc J. Grenier, for the appellants (named defendant et al.).

          Jonathan A. Adamec, for the appellee (plaintiff).

          DiPentima, C. J., and Keller and Graham, Js.

         The plaintiff bank, as trustee, sought to foreclose a mortgage on certain real property owned by the defendant mortgagors. Following the trial court's rendering of a judgment of strict foreclosure, the plaintiff filed a notice with the court that the defendants had commenced a bankruptcy proceeding, thereby staying the judgment. Thereafter, the bankruptcy court issued an order granting the plaintiff relief from the automatic stay, and the plaintiff filed a motion with the trial court to reenter the judgment and to reset the law days. In support of its motion, the plaintiff submitted an updated calculation of debt with an attached affidavit of debt from its servicing agent, B. The calculation of debt was less than the calculation of debt that the plaintiff previously had submitted approximately two years earlier, despite the accrual of interest. At the hearing on the plaintiff's motion, the defendants' counsel argued that the court should not rely on B's affidavit in calculating the outstanding debt. The trial court inquired of counsel as to how the defendants were harmed by the more advantageous updated calculation of debt, and whether counsel had any basis on which to challenge B's affidavit. In response, counsel stated that B's affidavit was inconsistent with the prior affidavit and he requested an evidentiary hearing on the matter, but indicated that he would not offer any evidence to contradict B's affidavit. Thereafter, the trial court declined counsel's request for an evidentiary hearing, reentered the judgment of strict foreclosure, reset the law days, and calculated the outstanding debt relying on B's affidavit. On appeal, the defendants challenged the trial court's reliance on B's affidavit in calculating their outstanding debt.

         Held that the trial court properly relied on B's affidavit in calculating the outstanding debt, the defendants on appeal having failed to articulate any colorable claim of prejudice by the court's decision: although the updated calculation of debt with B's attached affidavit was inconsistent with the one that the plaintiff previously had submitted, the updated calculation of debt was less than the prior calculation of debt, and the defendants did not rebut the plaintiff's contention that there was effectively no harm to them; moreover, the trial court did not abuse its discretion in declining to conduct an evidentiary hearing on the matter in light of the defendants' affirmation that they would not offer any additional evidence to challenge the figures set forth in B's affidavit.

         Procedural History

         Action to foreclose a mortgage on certain real property owned by the named defendant et al., brought to the Superior Court in the judicial district of Stamford-Norwalk, where the defendants were defaulted for failure to plead; thereafter, the court, Adams, J., granted the plaintiff's motion for ajudgment of strict foreclosure and rendered a judgment of foreclosure by sale; subsequently, the court, Mintz, J., granted the motion to open the judgment filed by the named defendant et al. and rendered a judgment of strict foreclosure; thereafter, the court, Povodator, J., granted the plaintiff's motion to reenter the judgment and to reset the law days, and the named defendant et al. appealed to this court. Affirmed.

          OPINION

          GRAHAM, J.

         The defendants Athina Savvidis and Anastasios Savvidis[1] appeal from the judgment of strict foreclosure reentered by the trial court in favor of the plaintiff, Bank of New York, as trustee, [2] following the lifting of a bankruptcy stay. On appeal, the defendants contend that the trial court improperly relied on an affidavit furnished by the plaintiff in calculating the outstanding debt. We affirm the judgment of the trial court.

         This appeal concerns real property owned by the defendants and known as 106B Comstock Hill Avenue in Norwalk (property). On April 14, 2003, the defendants executed a promissory note (note) in favor of America's Wholesale Lender[3] in the principal amount of $550, 000. The note was secured by a mortgage deed on the property (mortgage).

         On October 3, 2006, the plaintiff commenced this foreclosure action in its capacity as owner and holder of the note and mortgage. The operative complaint, the plaintiff's January 31, 2007 amended complaint, alleged in relevant part that the note was in default, that the defendants had been provided written notice thereof, and that the defendants had failed to cure that default. Accordingly, the plaintiff sought to ‘‘declare [the] note to be due in full and to foreclose the mortgage securing said note.'' Over the next decade, multiple judgments of foreclosure were entered by the trial court, only to be stayed by the filing of bankruptcy petitions by the defendants under title 11, chapter 13, of the United States Code. See U.S. Bank National Assn., Trustee v. Works, 160 Conn.App. 49, 52, 124 A.3d 935 (filing of bankruptcy petition pursuant to title 11 operates ‘‘as an automatic stay of the plaintiff's foreclosure action''), cert. denied, 320 Conn. 904, 127 A.3d 188 (2015).

         Relevant to this appeal are the events subsequent to the rendering of a judgment of strict foreclosure by the court on June 8, 2015. On September 9, 2015, the plaintiff, in accordance with General Statutes § 49-15 (b), [4]filed a notice that the defendants had commenced yet another bankruptcy proceeding, thereby staying the judgment of foreclosure recently reentered by the trial court. On January 7, 2016, the United States Bankruptcy Court for the District of Connecticut issued an order granting relief from that automatic stay ‘‘to permit the [plaintiff] to exercise [its] rights, if any, with respect to [the property] in accordance with applicable non-bankruptcy law.'' The plaintiff thereafter filed ...


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