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Bayview Loan Servicing, LLC v. Park City Sports, LLC

Court of Appeals of Connecticut

April 10, 2018

BAYVIEW LOAN SERVICING, LLC
v.
PARK CITYSPORTS, LLC, ET AL.

          Submitted on briefs January 9, 2018

         Procedural History

         Action to foreclose a mortgage on certain of the named defendant's real property, and for other relief, brought to the Superior Court in the judicial district of Fairfield, where the defendant William McCarthy et al. were defaulted for failure to appear and the defendant Fairfield County Bank was defaulted for failuretoplead; thereafter, the court, Bellis, J., denied the petition to participate in the foreclosure mediation program filed by the defendant Robert P. Carter; subsequently, the court, Hon. Alfred J. Jennings, Jr., judge trial referee, granted the plaintiff's motion for summary judgment as to liability; thereafter, the court, Hon. Richard P. Gilardi, judge trial referee, granted the plaintiff's motion for a judgment of strict foreclosure and rendered judgment thereon, from which the named defendant et al. appealed to this court. Affirmed.

          Charles C. Hallas, for the appellants (named defendant et al.).

          Benjamin T. Staskiewicz, for the appellee (plaintiff).

          Lavine, Bright and Pellegrino, Js.

          OPINION

          BRIGHT, J.

         The defendants, Park City Sports, LLC (Park City) and Robert P. Carter, [1] appeal from the trial court's judgment of strict foreclosure rendered in favor of the plaintiff, Bayview Loan Servicing, LLC. On appeal, the defendants claim that the trial court (1) lacked subject matter jurisdiction over the foreclosure action due to the plaintiff's failure to comply with a standing order of the Superior Court, (2) improperly granted the plaintiff's motion for summary judgment as to liability, (3) improperly determined that the defendants' special defenses were legally insufficient, and (4) improperly denied Carter's petition to participate in the foreclosure mediation program. We affirm the judgment of the trial court.

         The following facts and procedural history are relevant to this appeal. On August 13, 2004, Park City, through its manager, Carter, executed a promissory note, pursuant to which it promised to pay to the order of InterBay Funding, LLC (InterBay), the principal sum of $390, 000. The note was secured by a mortgage on 1382-1386 Park Avenue in Bridgeport in favor of InterBay. There are four units in the building located on the property: a four bedroom residential apartment and three commercial storefronts. Carter, in his individual capacity, executed a guarantee agreement for the note in favor of InterBay. Thereafter, InterBay assigned the mortgage on the subject property, and endorsed the note, to the plaintiff.

         Beginning on December 1, 2012, and every month thereafter, Park City failed to make monthly payments due pursuant to the note. As a result, the plaintiff commenced this foreclosure action in November, 2013. The defendants filed an answer in April, 2014. On January 21, 2015, the plaintiff filed the operative revised complaint seeking foreclosure of the mortgage on the property. On March 24, 2015, the plaintiff moved for summary judgment as to liability only. Subsequently, on April 15, 2015, the defendants filed an amended answer and special defenses, alleging, inter alia, that the plaintiff had (1) failed to credit the defendants' payments properly, (2) submitted an inaccurate affidavit regarding the defendants' eligibility for federal loss mitigation programs (federal loss affidavit), and (3) violated the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq.[2] On that same day, the defendants filed an objection to the motion for summary judgment and an accompanying memorandum of law.

         In their memorandum of law in opposition to summary judgment, the defendants challenged whether the plaintiff had standing to bring this action. The defendants claimed that the plaintiff had failed to establish the chain of endorsements of the note that was made payable to the original lender, InterBay. In support of their opposition, the defendants submitted Carter's affidavit that essentially recited the allegations in their special defenses, but they did not submit any documentary evidence to support the conclusory statements in Carter's affidavit. The affidavit also stated that the subject property is Carter's principal residence, which the plaintiff, in its federal loss affidavit, had denied. Following a hearing on April 20, 2015, the plaintiff filed a supplemental affidavit and accompanying exhibits establishing the chain of endorsements for the note. In their supplemental memorandum of law in opposition to summary judgment, the defendants asserted various issues with regard to the plaintiff's supplemental affidavit and accompanying exhibits, but they did not submit any counter affidavits or accompanying documentation in support of their claims.

         On September 23, 2015, the trial court, Hon. Alfred J. Jennings, Jr., judge trial referee, granted the motion for summary judgment. In its order, the court concluded that the plaintiff had established a prima facie case for its foreclosure action. Specifically, the court found that the plaintiff's affidavit and accompanying exhibits established that the plaintiff was the owner of the note and mortgage at the time that the action was commenced, that Park City had defaulted on the note beginning on December 1, 2012, and that the plaintiff had sent the required notice of default before commencing the foreclosure action. The court further concluded that the defendants failed to establish that there were any issues of material fact concerning their special defenses. Although the court determined that there was an issue of fact as to the accuracy of the plaintiff's federal loss affidavit because the affidavit provided that the subject property is not ‘‘owner-occupied, '' the court concluded that the plaintiff could correct this error prior to obtaining a judgment of strict foreclosure.

         Following the court's order granting the motion for summary judgment, the plaintiff filed a new federal loss affidavit on September 30, 2015. On October 28, 2015, the plaintiff filed a motion for a judgment of strict foreclosure, which the court, Hon. Richard P. Gilardi, judge trial referee, granted on November 16, 2015. The court rendered a judgment of strict foreclosure with the law days commencing on March 15, 2016. This appeal followed.[3]

         I

         The defendants claim that the court lacked subject matter jurisdiction over the plaintiff's foreclosure action due to the plaintiff's alleged failure to comply with the standing order of the Superior Court that required that the plaintiff file a fully executed copy of the Judicial Branch form entitled ‘‘AFFIDAVIT Federal Loss Mitigation Programs, '' form JD-CL-114, with its foreclosure complaint.[4] See Mortgage Foreclosure Standing Order Federal Loss Mitigation Programs, form JD-CV-117. We disagree.

         ‘‘Although the term is sometimes loosely used, ‘jurisdiction' in proper usage is the power in a court to hear and determine the cause of action presented to it. . . . It is axiomatic that [a court's] jurisdiction is derived from the constitutional or statutory provisions by which it is created, and can be acquired and exercised only in the manner prescribed. Thus, the determination of the existence and extent of [a court's] jurisdiction depends upon the terms of the statutory or constitutional provisions in which it has its source.'' (Citation omitted; emphasis altered; internal quotation marks omitted.) Deutsche Bank National Trust Co. v. Cornelius, 170 Conn.App. 104, 115, 154 A.3d 79, cert. denied, 325 Conn. 922, 159 A.3d 1171 (2017). ‘‘[B]ecause [a] determination regarding a trial court's subject matter jurisdiction is a question of law, our review is plenary.'' (Internal quotation marks omitted.) Housing Authority v. Rodriguez, 178 Conn.App. 120, 126, 174 A.3d 844 (2017).

         ‘‘The last page of the Practice Book pertaining to Superior Court Standing Orders explains: ‘Standing Orders are provided on the Judicial Branch website for the convenience of the bench and bar. They are not adopted by the Superior Court judges and are not Practice Book rules.' Additionally, at the top of the form that sets forth the uniform standing orders, it is stated in bold type: ‘Unless otherwise ordered by the Court, these are the Standing Orders for Foreclosures by Sale.' . . . One can infer from these published caveats that the uniform standing orders do not carry the weight of statutes or rules of practice, but, rather, that the court ...


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