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Bank of America, N.A. v. Grogins

Court of Appeals of Connecticut

April 30, 2019

BANK OF AMERICA, N.A.
v.
DAVID GROGINS, EXECUTOR (ESTATE OF ANNA S.GROGINS), ET AL.

          Argued December 6, 2019

         Procedural History

         Action to foreclose a mortgage on certain real property owned by the named defendant et al., and for other relief, brought to the Superior Court in the judicial district of Stamford-Norwalk, where the defendant Malcolm L. Grogins, trustee of the Susan Grogins Trust, et al. were defaulted for failure to appear; thereafter, the named defendant et al. were defaulted for failure to disclose a defense; subsequently, the court, Mintz, J., granted the plaintiff's motion for a judgment of strict foreclosure and rendered judgment thereon; thereafter, U.S. Bank Trust, N.A., was substituted as the plaintiff; subsequently, the court, Hon. Kevin Tierney, judge trial referee, denied the motion to open the judgment of strict foreclosure filed by the named defendant et al., and the named defendant et al. appealed to this court. Affirmed.

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

          Robert J. Wichowski, for the appellee (substitute plaintiff).

          DiPentima, C. J., and Sheldon and Pellegrino, Js.

          OPINION

          DiPENTIMA, C. J.

         In this foreclosure action, the defendants, David Grogins, executor of the estate of Anna S. Grogins, and David Grogins and Malcolm L. Grogins, trustees of the Susan Grogins Trust, [1] appeal from the trial court's denial of their motion to open the judgment of strict foreclosure rendered in favor of the substitute plaintiff, U.S. Bank Trust, N.A., as trustee for LSF9 Master Participation Trust.[2] On appeal, the defendants argue that the court abused its discretion in denying their motion to open because the court improperly applied the procedural requirements set forth in General Statutes § 52-212[3] and, in so doing, erroneously found that there was no good cause to open the judgment of strict foreclosure. We disagree and, accordingly, affirm the judgment of the trial court.

         The following facts and procedural history are relevant to this appeal. On July 30, 2014, Bank of America, N.A., as the original plaintiff, commenced this action against the defendants. According to the allegations in the complaint, the decedent, Anna S. Grogins, ‘‘owed Countrywide Bank, FSB [Countrywide] $625, 250, as evidenced by a promissory note for said sum, '' dated July 19, 2007. The note was secured by a mortgage on the premises known as 21 River Ridge Court in Stamford. The mortgagee was identified as Mortgage Electronic Registration, Inc., as nominee for Countrywide. On November 5, 2009, this mortgage was assigned to BAC Home Loan Servicing, LP (BAC), which Bank of America, N.A., subsequently acquired. Prior to Anna S. Grogins' death, the note and mortgage were in default for nonpayment of the principal and interest due on October 1, 2010. Anna S. Grogins died on December 16, 2010. The complaint further alleged that David Grogins, executor, ‘‘may claim an interest in [the] premises by virtue of being the executor of the estate of Anna S. Grogins, '' and that David Grogins and Malcolm L. Grog-ins, trustees, were the current owners of record.

         On April 8, 2015, Malcolm L. Grogins, State of Connecticut, Department of Revenue Services, and Bank of America, N.A., were defaulted for failure to appear. On April 27, 2015, the court, Mintz, J., defaulted David Grogins for failure to disclose a defense and rendered judgment of strict foreclosure. The law day was set for July 28, 2015. On July 27, 2015, David Grogins filed for bankruptcy, which stayed the foreclosure proceedings.

         Following the termination of the bankruptcy stay, the substitute plaintiff filed a motion to open the judgment, to make new findings, to reenter judgment after termination of the bankruptcy stay and to award additional attorney's fees and costs. Judge Mintz granted the substitute plaintiff's motion and set a new law day for June 28, 2016.

         On June 13, 2016, the defendants filed a motion to open the judgment. The defendants' motion to open was an official court form, JD-CV-107, that cited General Statutes §§ 52-212, 52-212a, and 52-259c, and Practice Book §§ 17-4 and 17-43. Appended to the defendants' motion to open was an ‘‘explication'' that alleged that David Grogins and Malcolm L. Grogins, as individuals, had occupied the residence subject to the foreclosure action since its purchase in the early 2000s. The explication also alleged that David Grogins had been sick intermittently during the pendency of the foreclosure action and that his illness, coupled with ‘‘the history of the loan, '' constituted ‘‘good cause for [why] the defaults [had] occurred . . . .'' Further, the defendants asserted that they had a good faith belief that a defense existed to the substitute plaintiff's complaint, specifically, that the subject loan ‘‘was part of the [HSSL (High Speed Swim Lane loan program)] at [Bank of America].''

         On June 27, 2016, Judge Mintz heard oral argument on the defendants' motion to open and decided that the matter warranted a full hearing before Judge Tierney. Judge Mintz then sua sponte opened the judgment of strict foreclosure and set a new law day for July 19, 2016. Following a brief hearing on July 11, 2016, the court, Hon. Kevin Tierney, judge trial referee, sua sponte opened the judgment of strict foreclosure and set a new law day for August 2, 2016. Shortly thereafter, on July 29, 2016, Judge Tierney held an evidentiary hearing on the defendants' motion to open.

         The hearing was held over a series of nonconsecutive days, starting on July 29, 2016, and ending on February 7, 2017. The defendants called several witnesses who testified to matters concerning alleged predatory lending practices and fraudulent behavior during the procurement of the original loan. The defendants did not present any evidence regarding the illness of David Grogins, which purportedly had prevented him from properly defending the foreclosure action, nor did they offer any other evidence to explain their failure to disclose a defense prior to default. Indeed, the attorney who represented David Grogins early ...


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