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McClancy v. Bank of America, N.A.

Court of Appeals of Connecticut

September 12, 2017

CHRISTOPHER P. MCCLANCY ET AL.
v.
BANKOF AMERICA, N.A., ET AL.

          Argued May 22, 2017

          Kenneth A. Votre, for the appellants (plaintiffs).

          Pierre-Yves Kolakowski, for the appellee (named defendant).

          DiPentima, C. J., and Alvord and Bear, Js.

         Syllabus

         The plaintiffs sought to recover damages from the defendant bank for, inter alia, breach of contract, in connection with actions purportedly taken and promises allegedly made while the plaintiffs were attempting to modify the terms of a note and mortgage they had executed in favor of the bank. The bank sent the plaintiffs correspondence stating that their modification application was under review, but then subsequently transferred its servicing rights to another company. The plaintiffs never received a modification of their loan. The trial court granted the bank's motion for summary judgment as to all claims against it and rendered judgment thereon, from which the plaintiffs appealed to this court. On appeal, they claimed, inter alia, that the trial court erred in granting summary judgment when genuine issues of material fact existed with respect to their claims for breach of contract, negligent misrepresentation, reckless misrepresentation, and violations of the Connecticut Unfair Trade Practices Act (CUTPA) (§ 42-110a et seq.).

         Held:

1. The plaintiffs' claim that the trial court improperly granted the bank's motion for summary judgment when issues of material fact existed with respect to their breach of contract claims was not reviewable, the plaintiffs having failed to brief their claim adequately.
2. The plaintiffs could not prevail on their claim that the trial court erred in failing to determine that their breach of contract claim fell within a purported promissory estoppel exception to the statute of frauds; our courts have not established a promissory estoppel exception to the statute of frauds, and even if promissory estoppel could bar a statute of frauds defense, the plaintiffs failed to provide evidence that the bank made a promise to grant a loan modification once the required documentation was submitted, as the bank never offered and the plaintiffs never accepted modification terms, and the bank represented only that it would consider the plaintiffs' modification application once the plaintiffs submitted the required documentation.
3. The trial court properly rendered summary judgment on the plaintiffs' claim of negligent misrepresentation, the plaintiffs having failed to present evidence that the bank's representation that it would evaluate their loan for a possible modification was false when made; the record showed that the bank took steps to consider the plaintiffs' modification request while it was still servicing the loan, and evidence that the bank transferred the loan before making a decision on the modification, standing alone, was insufficient to establish that its prior representation that it would consider the plaintiffs for a loan modification was false when made.
4. The trial court properly rendered summary judgment on the plaintiffs' CUTPA claim, which was based on their claim that the bank acted in bad faith in its communications with the plaintiffs as they worked to submit a loan modification request and in transferring their loan during that process; the plaintiffs failed to present evidence raising a genuine issue of material fact about whether the bank engaged in unfair or deceptive practices or violated any identifiable public policy in association with the plaintiffs' loan modification application, as this court determined that the plaintiffs failed to present evidence of a promise made by the bank to modify their loan or that the bank misrepresented facts when it promised to review the loan for a possible modification, the note and mortgage did not obligate the bank to grant a loan modification, and the mortgage expressly gave the bank the right to transfer the loan servicing rights.

         Procedural History

         Action to recover damages for, inter alia, breach of contract, and for other relief, brought to the Superior Court in the judicial district of Stamford-Norwalk, where the court, Heller, J., granted the named defendant's motion for summary judgment, from which the plaintiffs appealed to this court. Affirmed.

          OPINION

          BEAR, J.

         In this litigation arising from an attempt to modify the payment terms of a promissory note and mortgage, the plaintiffs, Christopher P. McClancy and Loretta Giannone, appeal from the summary judgment of the trial court rendered in favor of the defendant, Bank of America, N.A.[1] On appeal, the plaintiffs claim that the court erred (1) in rendering summary judgment when genuine issues of material fact existed with respect to their breach of contract claim; (2) in failing to determine that the plaintiffs' contract claim fell within an exception to the statute of frauds, General Statutes ยง 52-550; (3) in rendering summary judgment when genuine issues of material fact remained with respect to their negligent and reckless misrepresentation claims; and (4) in determining that no genuine issues of ...


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