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Bank of America, N.A. v. Gonzalez

Court of Appeals of Connecticut

January 29, 2019


          Argued October 24, 2018

         Procedural History

         Action to foreclose a mortgage on certain real property of the named defendant, and for other relief, brought to the Superior Court in the judicial district of Fairfield and tried to the court, Hon. Michael Hartmere, judge trial referee; judgment of strict foreclosure, from which the named defendant appealed to this court.

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

          Pierre-Yves Kolakowski, for the appellee (plaintiff).

          David Lavery filed a brief for the Connecticut Fair Housing Center as amicus curiae.

          Sheldon, Prescott and Pellegrino, Js.


          PELLEGRINO, J.

         The defendant William Gonzalez[1]appeals from the judgment of strict foreclosure rendered by the trial court in favor of the plaintiff, Bank of America, N.A. On appeal, the defendant claims that the court erred by concluding that he had failed to satisfy his burden of proving that the mortgage broker was an agent or employee of the original mortgagee and concluding, on that basis, that he had failed to prove any of his special defenses, all of which were based on the alleged conduct of the broker. The defendant further claims that the trial court incorrectly concluded that he had failed to sustain his burden of proving that the mortgage was unconscionable.[2] We disagree with the defendant and, accordingly, affirm the judgment of the trial court.

         The following facts and procedural history are relevant to the resolution of the defendant's claims on appeal. The plaintiff filed this action in August, 2013, seeking to foreclose a residential mortgage on property located at 80 Oakwood Street in Bridgeport. According to the complaint, on March 20, 2006, the defendant executed the mortgage in favor of Mortgage Electronic Registration Systems, Inc., as nominee for Mortgage Capital Group, LLC (Mortgage Capital), as security for a $267, 750 promissory note payable to the order of Mortgage Capital. The complaint alleged that the note was in default and that the plaintiff, which was in possession of the note, was exercising its option to declare the entire balance of the note due and payable.

         On June 25, 2015, the defendant filed an amended answer and six special defenses. The special defenses alleged fraudulent inducement, negligent misrepresentation, equitable estoppel, unconscionability, duress and unclean hands. Each of the special defenses alleged misconduct by David J.Bigley, an alleged employee and/ or agent of the original lender and mortgagee, Mortgage Capital.[3] On May 5, 2016, the plaintiff filed its reply, denying each of the defendant's special defenses. Following a trial on April 18 and 19, 2017, the court rendered a judgment of strict foreclosure.[4] In its oral decision, the court found that the plaintiff had presented prima facie evidence to support the judgment of strict foreclosure. The court rejected the defendant's special defenses, finding that the defendant had not satisfied his burden of proving that Bigley was an agent or employee of Mortgage Capital. The defendant then filed the present appeal.

         We first set forth our standard of review. ‘‘The standard of review of a judgment of . . . strict foreclosure is whether the trial court abused its discretion. . . . In determining whether the trial court has abused its discretion, we must make every reasonable presumption in favor of the correctness of its action. . . . Our review of a trial court's exercise of the legal discretion vested in it is limited to the questions of whether the trial court correctly applied the law and could reasonably have reached the conclusion that it did.'' (Internal quotation marks omitted.) Bank of New York Mellon v. Talbot, 174 Conn.App. 377, 382, 165 A.3d 1253 (2017).

         ‘‘In order to establish a prima facie case in a mortgage foreclosure action, the plaintiff must prove by a preponderance of the evidence that it is the owner of the note and mortgage, that the defendant mortgagor has defaulted on the note and that any conditions precedent to foreclosure, as established by the note and mortgage, have been satisfied.'' (Internal quotation marks omitted.) U.S. Bank, N.A. v. Foote, 151 Conn.App. 620, 632, 94 A.3d 1267, cert. denied, 314 Conn. 930, 101 A.3d 952 (2014). In its decision, the trial court noted that there was no disagreement that the plaintiff had established a prima facie case. On appeal, the defendant has not challenged the plaintiff's standing as the owner of the note and mortgage or the defendant's default on the note. We, therefore, limit our review to the issues raised by the defendant concerning his special defenses.

         ‘‘Where the plaintiff's conduct is inequitable, a court may withhold foreclosure on equitable considerations and principles. . . . [O]ur courts have permitted several equitable defenses to a foreclosure action. [I]f the mortgagor is prevented by accident, mistake or fraud, from fulfilling a condition of the mortgage, foreclosure cannot be had . . . .'' (Internal quotation marks omitted.) Hirsch v.Woermer, 184 Conn.App. 583, 588, 195 A.3d 1182, cert. denied, 330 Conn. 938, 195 A.3d 384 ...

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