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Wells Fargo Bank, N.A. v. Melahn

Court of Appeals of Connecticut

May 1, 2018

WELLS FARGO BANK, N.A., TRUSTEE
v.
MICHAEL JOHN MELAHN ET AL.

          Argued February 5, 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 Danbury, where the named defendant was defaulted for failure to appear; thereafter, the court, Pavia, J., granted the plaintiff's motion for judgment of strict foreclosure and rendered judgment thereon; subsequently, the court, Pavia, J., opened the judgment and granted the motion to dismiss filed by the named defendant; thereafter, the court, Pavia, J., granted the plaintiff's motion to reargue and vacated its order of dismissal, and the named defendant appealed to this court, which reversed the trial court's judgment and remanded the matter for further proceedings; subsequently, the named defendant filed amended special defenses and a counterclaim; thereafter, the court, Russo, J., granted the plaintiff's motion to strike the amended special defenses and counterclaim; subsequently, the named defendant filed a motion to amend the counterclaim; thereafter, the court, Russo, J., rendered judgment on the counterclaim for the plaintiff, from which the named defendant appealed to this court. Appeal dismissed in part; affirmed in part.

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

          Marissa I. Delinks, with whom, on the brief, was Valerie N. Doble, for the appellee (plaintiff).

          Sheldon, Bright and Bear, Js.

          OPINION

          PER CURIAM.

          The defendant, Michael John Melahn, [1]appeals, specifically pursuant to Practice Book § 61-2, [2] from the judgment of the trial court rendered in favor of the plaintiff, Wells Fargo Bank, N.A., as trustee, on the defendant's second amended counterclaim. In his appellate brief, the defendant also claims to be appealing from the court's order striking his amended special defenses. We dismiss the appeal as to the striking of the special defenses, and we affirm the judgment in all other respects.

         This foreclosure case returns to us following our remand in Wells Fargo Bank, N.A. v. Melahn, 148 Conn.App. 1, 12-13, 85 A.3d 1 (2014). In that appeal, this court, despite the running of the law day, reversed the judgment of strict foreclosure and remanded the case to the trial court because the plaintiff had failed to comply with the foreclosure standing orders by giving timely notice to the defendant of certain important terms of the foreclosure judgment and the adverse consequences of his continued failure to take action. Id., 4, 12-13. Moreover, the plaintiff incorrectly had certified to the court that the required notice had been provided to the defendant when, in fact, it had not been provided. Id., 6, 12-13.

         After the case was remanded to the trial court, the defendant, on June 4, 2015, filed an answer with special defenses and a four count counterclaim, which included a count alleging no specific cause of action, a count alleging a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., a count alleging breach of contract/breach of the implied covenant of good faith and fair dealing, and a count alleging fraudulent or negligent misrepresentation. The plaintiff moved to strike the special defenses and the counterclaim, alleging, in relevant part, that all counts of the counterclaim were legally insufficient. The defendant, thereafter, consented to the granting of that motion.

         On August 28, 2015, the defendant filed an amended answer with special defenses and a four count counterclaim, which included counts for (1) tortious predatory lending and foreclosure practices, (2) a CUTPA violation, (3) breach of contract/breach of the implied covenant of good faith and fair dealing, and (4) fraudulent and negligent misrepresentation. The plaintiff again moved, in relevant part, to strike all counts of the counterclaim on the ground of legal insufficiency. On September 10, 2015, the court granted the motion to strike.

         On October 26, 2015, the defendant filed a second amended answer with special defenses and an eight count counterclaim. The alleged factual basis for the defendant's counterclaim was, in relevant part, as follows: The defendant, his wife, and his mother-in-law reside in the subject property. The defendant was non-appearing in the initial foreclosure. The plaintiff had failed to comply with the uniform foreclosure standing orders by sending a letter, via regular and certified mail, to the defendant regarding the rendering of judgment. See Wells Fargo Bank, N.A. v. Melahn, supra, 148 Conn.App. 4. The plaintiff negligently misrepresented facts that induced the defendant to enter into the mortgage and loan agreement, despite the defendant's inability to pay the loan on a long-term basis, and the plaintiff benefited from these misrepresentations. The plaintiff made several misrepresentations that it knew, or should have known, to be false, and, as a result of these misrepresentations, the defendant was harmed.

         On the basis of these alleged facts, the defendant set forth the following numbered counts in his counterclaim: (1) negligent misrepresentation, (2) intentional misrepresentation and fraud, (3) breach of contract/ breach of the implied covenant of good faith and fair dealing, (4) a violation of CUTPA, (5) wanton and reckless violation of CUTPA, (6) a violation of CUTPA, (7) a violation of CUTPA with an ascertainable loss, and (8) a violation of CUTPA with punitive damages. The plaintiff objected to the second amended answer with special defenses and counterclaim on the ground that the defendant had failed to comply with Practice Book (2015) § 10-60 (a).[3] The court sustained the objection and ordered the second amended answer with special defenses and counterclaim stricken.

         On November 12, 2015, the defendant refiled his second amended answer with special defenses and an eight count counterclaim. In response, on November 25, 2015, the plaintiff filed a motion to strike with prejudice the defendant's refiled pleading on the ground that the special defenses and each count of the counterclaim were legally insufficient. The plaintiff alleged, in relevant part, that counts one, two, four, five, six, seven, and eight of the counterclaim failed to allege required elements, and did not relate to the making, validity, or enforcement of the note and mortgage, and that they, therefore, failed the transaction test. See CitiMortgage, Inc. v. Rey, 150 Conn.App. 595, 605, 92 A.3d 278 (‘‘counterclaim must . . . have a sufficient relationship to the making, validity or enforcement of the subject note or mortgage in order to meet the transaction test, '' although it need not ‘‘directly attack the making, validity or enforcement of the subject mortgage or note''), cert. denied, 314 Conn. 905, 99 A.3d ...


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