BANK OF AMERICA, N.A.
WILLIAM GONZALEZ ET AL.
October 24, 2018
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).
Lavery filed a brief for the Connecticut Fair Housing Center
as amicus curiae.
Sheldon, Prescott and Pellegrino, Js.
defendant William Gonzalezappeals 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. We disagree with the defendant and,
accordingly, affirm the judgment of the trial court.
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.
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. 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. 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.
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
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.
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