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Bank of New York Mellon v. Horsey

Court of Appeals of Connecticut

June 5, 2018

THE BANK OF NEW YORK MELLON, SUCCESSORTRUSTEE
v.
WADE H. HORSEY II ET AL.

          Argued January 30, 2018

         Procedural History

         Action to foreclose a mortgage on certain real property of the named defendant et al., and for other relief, brought to the Superior Court in the judicial district of Hartford, where The Bank of New York Mellon, successor trustee, was substituted as the plaintiff; thereafter, the court, Robaina, J., granted the substitute plaintiff's motion for summary judgment as to liability; subsequently, the court, Noble, J., dismissed the action for failure to prosecute with reasonable diligence; thereafter, the court, Dubay, J., granted the substitute plaintiff's motion to open the judgment; subsequently, the court, Dubay, J., granted the substitute plaintiff's motion for a judgment of strict foreclosure and rendered judgment thereon, from which the named defendant appealed to this court. Affirmed.

          Wade H. Horsey II, self-represented, the appellant (named defendant).

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

          Prescott, Elgo and Bright, Js.

          OPINION

          PRESCOTT, J.

         The defendant, Wade H. Horsey II, [1]appeals from the judgment of strict foreclosure rendered in favor of the substitute plaintiff, The Bank of New York Mellon, as Successor Trustee for JPMorgan Chase Bank, N.A., as Trustee for Novastar Mortgage Funding Trust, Series 2005-2 Novastar Home Equity Loan Asset-Backed Certificates, Series 2005-2. The defendant claims on appeal that the trial court improperly (1) granted the substitute plaintiff's motion to open a disciplinary judgment of dismissal because it disregarded the standard set forth in General Statutes § 52-212 and Practice Book § 17-43; (2) exhibited bias against the defendant; (3) failed to ensure that the defendant timely received a preliminary statement of the substitute plaintiff's monetary claim in accordance with Practice Book § 23-18 (b); (4) rendered summary judgment as to the defendant's liability; (5) declined to dismiss the foreclosure action pursuant to Practice Book § 17-9; (6) failed to consider his argument that ‘‘bifurcation'' of the note and mortgage had rendered them unenforceable; (7) failed to address the issue of the substitute plaintiff's standing to prosecute this action; and (8) failed to consider whether the substitute plaintiff had engaged in fraud upon the court. The defendant's claims either are unpreserved, inadequately briefed, or fail to persuade us that the court's actions constitute reversible error. Accordingly, we affirm the judgment of strict foreclosure and remand the case to the trial court for the purpose of setting new law days.

         The record reveals the following relevant facts and procedural history. The original plaintiff, The Bank of New York Mellon, as Successor Trustee under Novastar Mortgage Funding Trust 2005-2, commenced this action in September, 2009. Its complaint contained two counts. Count one sought to foreclose on a mortgage that the defendant had executed in 2005 on property in Avon as security for a note in the principal amount of $390, 000.[2] The original plaintiff alleged that it was the holder of the note and mortgage and that the note was in default for nonpayment. Count two sought reformation of the mortgage in order to correct a minor defect in the property description.

         On April 23, 2010, the original plaintiff filed a motion for a judgment of strict foreclosure and a motion to default the defendant for failure to appear. Soon thereafter, it also filed an appraisal, an affidavit of debt, a foreclosure worksheet and other documents necessary to obtain a foreclosure judgment. The court clerk defaulted the defendant for failure to appear on May 3, 2010. On that same day, however, the defendant filed an appearance as a self-represented party along with a request to participate in the court-sponsored foreclosure mediation program. The default was set aside and the court granted the defendant's request for mediation. See Practice Book § 17-20 (d) (default automatically set aside if defaulted party files appearance before judgment on default is rendered).

         Foreclosure mediation began and continued through the end of 2010. Over the following year and a half, the parties filed a number of motions related to discovery. On September 26, 2012, the original plaintiff assigned the mortgage to the substitute plaintiff, which the court substituted into the action for the original plaintiff on November 19, 2012.

         The defendant filed an answer to the complaint and a disclosure of defense on October 9, 2013. In his answer, the defendant admitted to executing the note and mortgage but denied the allegations that he was in default on the note or had been provided proper notice of default. The defendant did not assert any special defenses or raise any counterclaims. In his disclosure of defense, the defendant indicated that he reserved the right to dispute the amount of the debt.

         No further activity in the action occurred until April 17, 2015, at which time the defendant filed a motion pursuant to Practice Book § 14-3 asking the court to render a judgment of dismissal on the ground that the substitute plaintiff had failed to prosecute the action with reasonable diligence. The court, Vacchelli, J., issued an order on May 6, 2015, denying the defendant's motion, but directing the substitute plaintiff to move for summary judgment or to take some other action to advance the case within sixty days. The court indicated that, if the substitute plaintiff failed to comply, the court would entertain a renewed motion to dismiss.

         The substitute plaintiff filed a motion for summary judgment as to liability only on December 21, 2015. Along with its motion, the substitute plaintiff submitted copies of the note, the mortgage and assignments, and an affidavit averring, inter alia, that the substitute plaintiff was the holder of the note and the mortgagee of record, the note was in default, notice of the default had been sent to the defendant, and the default had not been cured. The defendant filed an objection to the motion for summary judgment on February 29, 2016.[3]He did not attach an affidavit or any other evidence that disputed factually the summary judgment submissions of the substitute plaintiff.[4]

         When the defendant filed his objection to the motion for summary judgment, he also filed a motion renewing his request for a judgment of dismissal pursuant to Practice Book § 14-3, noting that the substitute plaintiff had not filed its motion for summary judgment within the sixty day time period established by the court's May 6, 2015 order. The substitute plaintiff filed an objection to the motion to dismiss, arguing that dismissal was not an appropriate remedy at that juncture because the defendant had not established that he was prejudiced by the delay and the parties were now ‘‘postured to litigate the matter in short order.''

         The court, Robaina, J., heard argument on the motion for summary judgment on March 21, 2016. On April 14, 2016, the court issued orders, without comment, denying the defendant's renewed motion to dismiss for lack of diligence and overruling his objection to the motion for summary judgment. The court also issued the following order granting the motion for summary judgment as to liability only: ‘‘[I]t is hereby found that no genuine issue of material fact exists as to the defendants' liability on the note and mortgage. . . . Determination of the amount of indebtedness is deferred until such time as plaintiff seeks a judgment of foreclosure.''

         On April 19, 2016, the defendant filed an appeal from the court's April 14, 2016 orders granting the motion for summary judgment as to liability and denying his motion for a disciplinary dismissal of the action. The substitute plaintiff filed with this court a motion to dismiss that appeal for lack of a final judgment. The motion was granted on May 25, 2016. See Wells Fargo Bank, N.A. v. Tarzia, 150 Conn.App. 660, 662 n.2, 92 A.3d 983 (entry of summary judgment as to liability only not final judgment for purposes of appeal), cert. denied, 314 Conn. 905, 99 A.3d 635 (2014); Deutsche Bank National Trust Co. v. Bialobrzeski, 123 Conn.App. 791, 794 n.7, 3 A.3d 183 (2010) (denial of motion to dismiss generally not appealable final judgment). On July 20, 2016, the substitute plaintiff reclaimed for the short calendar list its April 23, 2010 motion seeking a judgment of strict foreclosure.

         On August 1, 2016, the parties appeared before the court, Noble, J., on the court's dormancy docket. The court had issued a notice to appear and show cause on March 18, 2016, prior to the hearing on the motion for summary judgment, directing the parties to appear to address the status of the case and indicating that ‘‘the court may dismiss this action at the hearing.'' The court first heard from counsel for the substitute plaintiff, who indicated that the substitute plaintiff was ready to proceed to judgment but was awaiting the return of the original note and other documents necessary to secure the judgment. According to counsel, at some point, the substitute plaintiff had hired another law firm to represent it in this action, and the original documents had been transferred to that firm. The matter subsequently was transferred back to counsel's firm, but, according to counsel, the original documents had not yet been received back. Without first hearing from the defendant, the court indicated that it would give the substitute plaintiff one more chance, but if the matter did not proceed to judgment by November 14, 2016, the substitute plaintiff would be nonsuited and the matter dismissed.

         The defendant then asked the court if he could be heard. The court apologized for not giving the defendant an opportunity to speak prior to ruling. The defendant brought to the court's attention that he previously had filed a motion to dismiss for lack of diligence and that the substitute plaintiff had failed to comply with the court's order directing the substitute plaintiff to take some action to advance the case within sixty days. The substitute plaintiff responded that the same argument had been raised to and rejected by the court as part of its consideration of the motion for summary judgment and renewed motion to dismiss. Nevertheless, after confirming that the case had been on the docket since 2009, the court reversed its earlier ruling and dismissed the action.

         On August 31, 2016, the substitute plaintiff filed a motion to open and set aside the judgment of dismissal. It argued that it had filed and reclaimed a motion for a judgment of strict foreclosure prior to the court's dismissal and now had in its possession all documents necessary to proceed to a final judgment, including an updated appraisal and updated affidavit of debt. It also argued that ‘‘it would be an exercise in futility and would unduly burden the court's docket to require [it] to commence a new action.'' The substitute plaintiff filed the updated appraisal on September 6, 2016, and, on September 8, 2016, filed a new foreclosure worksheet, an updated affidavit of debt, and an affidavit regarding attorney's fees. The defendant filed an objection to the motion to open on September 6, 2016, in which he argued that the substitute plaintiff could not demonstrate that it was prevented from prosecuting the action by mistake, accident or other reasonable cause or that a good cause of action existed at the time of the judgment of dismissal.

         Both the motion to open and the reclaimed motion for a judgment of strict foreclosure appeared on the court's September 12, 2016 foreclosure docket. The court, Dubay, J., asked the defendant at the beginning of that hearing whether he was objecting to the motion to open or the motion for a judgment of strict foreclosure. The defendant replied: ‘‘I'm objecting to the motion to open because my understanding is without opening the judgment the court can't consider any other motion.'' The court acknowledged that the case had been pending for a long time but asked the defendant to explain how he had been prejudiced by that delay. The defendant answered that he had been under the strain of not knowing whether he would be able to remain in his home. The court suggested that, with respect to prejudice, the defendant actually benefitted from the delay because he was able to remain in his home for seven years without making mortgage payments. After some further discussion with the defendant, including about the nature of his defense to the foreclosure action, the court summarily granted the motion to open.

         The court then immediately turned to consideration of the motion for a judgment of strict foreclosure. It began by confirming that summary judgment as to liability previously had been rendered in this case. The defendant then requested that the court grant a two month continuance to November 16, 2016, arguing that the substitute plaintiff had filed its updated financial information after the action had been dismissed and prior to it having been opened, and the defendant claimed that he needed additional time to prepare a defense. The court denied the request, explaining to the defendant that he had had seven years to prepare and, furthermore, that it intended to set law days to commence on November 28, 2016, and, thus, the defendant would have ample time to file a motion to open any judgment it rendered ‘‘based upon whatever reasons you think it . . . should be reopened for.'' Other than arguing that the substitute plaintiff's financial documents were filed too close in time to the hearing on the motion for a judgment of strict foreclosure, the defendant did not advance any reason why the court could not determine the amount of ...


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