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Nationstar Mortgage, LLC v. Mollo

Court of Appeals of Connecticut

April 10, 2018

NATIONSTAR MORTGAGE, LLC
v.
CLIFFORD W. MOLLO

          Argued January 11, 2018

         Procedural History

         Action to foreclose a mortgage on certain of the defendant's real property, and for other relief, brought to the Superior Court in the judicial district of New Britain, where the defendant filed a counterclaim; thereafter, the court, Dunnell, J., granted the plaintiff's motion for summary judgment as to liability only; subsequently, the court, Abrams, J., granted the plaintiff's motion for a judgment of strict foreclosure and rendered judgment thereon, from which the defendant appealed to this court. Reversed in part; appeal dismissed in part; further proceedings.

          Ridgely W. Brown, with whom, on the brief, was Benjamin Gershberg, for the appellant (defendant).

          Shawn M. Masterson, for the appellee (plaintiff).

          Lavine, Keller and Harper, Js.

          OPINION

          KELLER, J.

         The defendant, Clifford W. Mollo, appeals from the judgment of strict foreclosure rendered by the trial court in favor of the plaintiff, Nationstar Mortgage, LLC. The defendant sets forth five claims that may be distilled as follows: (1) the judgment of strict foreclosure was improper because the court lacked authority to render summary judgment as to liability on the note and mortgage, and (2) the trial court erroneously determined that his special defenses and counterclaim were legally insufficient and/or failed to establish any genuine issue of material fact. Specifically, the defendant's first claim is that procedurally, the court lacked authority to grant summary judgment because the plaintiff failed to file any motion or memorandum of law attacking the legal sufficiency of his special defenses or counterclaim and failed to submit any competent evidence to establish that there was no genuine issue of material fact with respect to the issues raised in them. With respect to the second claim, the defendant argues that the court's decision granting summary judgment as to liability in favor of the plaintiff was clearly erroneous in that he presented uncontroverted evidence that demonstrated that genuine issues of material fact exist with respect to his special defenses of unclean hands, fraudulent inducement and equitable estoppel, and his counterclaim under the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. In addition, the defendant claims that the plaintiff failed to demonstrate that any defect in pleading his unclean hands defense and the CUTPA counterclaim could not be cured by repleading. We agree with the defendant that the court lacked authority to grant the motion for summary judgment as to liability because the plaintiff failed to file any motion or memorandum of law attacking the legal sufficiency of the special defenses and failed to submit any competent evidence to establish that there was no genuine issue of material fact with respect to the issues raised in them. Accordingly, we reverse the judgment rendered by the trial court on the plaintiff's complaint.[1] In light of our conclusion that the court did not render a final judgment with respect to the defendant's counterclaim, we dismiss the portion of the appeal challenging the purported judgment on the counterclaim for lack of subject matter jurisdiction.[2]See General Statutes § 52-263; Practice Book § 61-4; State v. Curcio, 191 Conn. 27, 30, 463 A.2d 566 (1983).

         The following facts and procedural history are relevant to our analysis. On June 26, 2007, the defendant executed a promissory note, entitled ‘‘Adjustable Rate Note, '' in favor of First National Bank of Arizona (FNB Arizona) in the original principal amount of $261, 000. To secure his obligations under the note, the defendant granted a mortgage to Mortgage Electronic Registration Systems, Inc., as nominee for FNB Arizona in his real property known as 109 Lyon Road in Burlington. The mortgage was assigned by an assignment of mortgage to the plaintiff on February 15, 2013. This assignment of the mortgage was recorded on March 11, 2013, in Volume 321 at page 656 of the town of Burlington land records. The plaintiff claims that, on or about October 1, 2012, the defendant defaulted on his payment obligations under the note. On April 22, 2013, the plaintiff initiated the present action to foreclose its mortgage and alleged that it was the owner of the note and mortgage executed by the defendant on June 26, 2007, in favor of FNB Arizona.[3] The defendant filed a disclosure of defense on May 8, 2014, and a motion to strike on July 16, 2014.[4] In response to the motion to strike, on February 6, 2015, the plaintiff filed a request for leave to file an amended complaint and an amended complaint, to which the defendant did not object. See Practice Book § 10-60 (a) (3). On March 25, 2015, prior to the defendant's filing an answer to the amended complaint, the plaintiff filed its first motion for summary judgment, to which the defendant did not respond. On December 16, 2015, the plaintiff filed a second motion for summary judgment. On December 21, 2015, the defendant filed a request for an extension of time in which to respond to this motion.

         In the operative motion for summary judgment and memorandum of law in support thereof, the plaintiff alleged that there were no genuine issues as to any material fact set forth in the complaint, as it is the current holder of the note and mortgage and the defendant is in default under the terms of the note and mortgage. Attached to the plaintiff's motion was the following documentation, which purported to set forth a prima facie case for foreclosure against the defendant: copies of the note, the mortgage and its adjustable rate rider, the assignment of the mortgage to the plaintiff, and an affidavit from Tina Marie Braune, a document execution specialist employed by the plaintiff who averred that the defendant remains in default of the terms and obligations of the mortgage.

         On March 14, 2016, the plaintiff's motion for summary judgment appeared on the short calendar for argument. Three days prior to this short calendar, on March 11, 2016, the defendant filed an answer, special defenses and counterclaim and at the same time, an objection to the motion for summary judgment. The objection was untimely, as Practice Book (2016) § 17-45 then required that ‘‘[a]ny adverse party shall at least five days before the date the motion is to be considered on the short calendar file opposing affidavits and other available documentary evidence. Affidavits, and other documentary proof not already a part of the file, shall be filed and served as are pleadings.''[5]

         In his answer, the defendant denied that the plaintiff was entitled to any relief and further denied that the plaintiff could satisfy its burden of proving that it was entitled to the equitable remedy of foreclosure. He also brought a counterclaim that alleged violations of CUTPA as a result of the use of a ‘‘bait and switch teaser note and option [adjustable rate mortgage] negative amortization loan designed to fail, '' a fraudulent assignment of the mortgage, ‘‘part of an ongoing fraudulent scheme of the plaintiff to ‘robo-sign' mortgage loan documents, '' and illegal attempts by the plaintiff to exclude the defendant from possession of the premises by use of force. He claimed an entitlement to a set off against any debt that is claimed to be due by the plaintiff in the amount of any damages arising from his CUTPA counterclaim. In addition, the defendant pleaded three special defenses: unclean hands, fraudulent inducement and equitable estoppel.

         In objecting to the motion for summary judgment, the defendant filed a comprehensive ‘‘memorandum of law in support of objection to motion for summary judgment'' in which he argued that his special defenses and counterclaim were legally sufficient and that there remained genuine issues of material fact with respect to his claims. Attached to his memorandum, and relevant to this appeal, are the defendant's own affidavit attesting to misleading and fraudulent misrepresentations on the part of FNB Arizona at the time he signed the note and mortgage, a truth-in-lending disclosure statement that the defendant alleges failed to disclose the alternative payment schedules provided in the adjustable rate mortgage, [6] and the detailed affidavit of a purported expert, Randall Huinker, who opined that ‘‘[t]he facts and circumstances regarding this loan indicate that it meets the criteria for predatory lending outlined in an [Office of the Comptroller of the Currency] Advisory Letter.''

         When the short calendar hearing concerning the motion for summary judgment commenced, counsel for the defendant was not present. Counsel for the plaintiff objected to the court entertaining the defendant's objection to summary judgment because his written objection was not timely filed and he only had been able to glance at it before he left his office to come to court. In the alternative, the plaintiff argued that if the court were to consider the defendant's objection, the plaintiff should be allowed sufficient time to amend its motion for summary judgment accordingly. The court, despite noting that the terms of the mortgage were ‘‘ridiculous'' and ‘‘harsh, '' and further indicating it did not know whether the mortgage, alleged by the defendant to be predatory in nature, was illegal as a matter of law, overruled the objection and granted the motion for summary judgment as to liability only.

         Later that day, while counsel for the plaintiff was still present, counsel for the defendant arrived and the court indicated that it would rehear argument. After hearing further argument, mostly from the defendant, the court again overruled the defendant's objection and permitted its decision granting summary judgment in favor of the plaintiff to stand.[7] The court made only passing references to the defendant's special defenses and at no time during the hearing did it make any reference to the defendant's counterclaim. The court ...


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