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Wells Fargo Bank, N. A. v. Fitzpatrick

Court of Appeals of Connecticut

May 21, 2019

WELLS FARGO BANK, N.A.
v.
JAMES R. FITZPATRICK ET AL.

          Argued December 12, 2018

         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 Fairfield, where the court, Hon. Richard P. Gilardi, judge trial referee, granted the plaintiff's motion to cite in Carbone Financing Services, LLC, as a party defendant; thereafter, the named defendant et al. were defaulted for failure to plead; subsequently, the court, Hon. Alfred J. Jennings, Jr., judge trial referee, granted the motion filed by the named defendant et al. to open the default; thereafter, the court, Hon. Alfred J. Jennings, Jr., judge trial referee, granted the plaintiff's motion to dismiss the counterclaim filed by the named defendant et al.; subsequently, the court, Hon. Alfred J. Jennings, Jr., judge trial referee, denied the motion to dismiss filed by the named defendant et al. and granted in part the plaintiff's motion for a judgment of strict foreclosure and rendered a judgment of foreclosure by sale, from which the named defendant et al. appealed to this court. Affirmed.

          Bryan L. LeClerc, for the appellants (defendants).

          David M. Bizar, with whom was J. Patrick Kennedy, for the appellee (plaintiff).

          Keller, Elgo and Bright, Js.

          OPINION

          ELGO, J.

         The defendants, James R. Fitzpatrick and Marsha A. Fitzpatrick, [1] appeal from the judgment of foreclosure by sale rendered by the trial court in favor of the plaintiff, Wells Fargo Bank, N.A. On appeal, the defendants claim that the court improperly (1) denied their motion to dismiss and rendered judgment of foreclosure by sale because the plaintiff did not comply with the terms of the note and mortgage, namely, compliance with the notice requirements, and (2) concluded that the defendants had not proved their special defense of laches. We affirm the judgment of the trial court.

         The following facts and procedural history are relevant to the present appeal. On January 31, 2003, the defendants executed and delivered a promissory note payable to World Savings Bank, FSB, in the original principal amount of $315, 000. The loan was secured by a mortgage deed on the property. The mortgage deed was executed and delivered on January 31, 2003. Effective December 31, 2007, World Savings Bank, FSB, was renamed Wachovia Mortgage, FSB (Wachovia).

         The defendants have been in default on the note and mortgage deed since March 1, 2009. On May 13, 2009, Wachovia sent a letter to the defendants at the property address by first class mail and certified mail, notifying them that the loan was in default and advising them of the amount required to cure the default and its intent to accelerate if the default was not cured (2009 letter). When the defendants failed to cure the default, Wachovia elected to accelerate the balance due on the note, declare the note due in full, and foreclose the mortgage deed securing the note. Wachovia commenced a foreclosure action against the defendants on July 27, 2009 (first foreclosure action). Berchem Moses, P.C. (Berchem Moses), [2] filed an appearance on behalf of the defendants on August 4, 2009. Effective November 1, 2009, Wachovia converted to a national bank with the name Wells Fargo BankSouthwest, National Association, and merged with and into the plaintiff.[3] The first foreclosure action was in foreclosure mediation for approximately two years; the mediation period was terminated by the court on September 29, 2011. The first foreclosure action subsequently was dismissed for dormancy on May 8, 2014.

         On June 19, 2014, the law firm formerly known as Hunt Leibert Jacobson, P.C., acting in its capacity as counsel to the plaintiff, sent a letter by certified mail, return receipt requested, to Berchem Moses notifying them, inter alia, that the note was in default (2014 letter). The 2014 letter listed the plaintiff as the creditor, the loan number, and the property address and stated, in relevant part: ‘‘Dear BERCHEM MOSES & DEVLIN PC: We are writing to you as counsel for BERCHEM MOSES & DEVLIN PC, MARSHA A FITZPATRICK*. Please be advised that this office represents WELLS FARGO BANK, N.A., who is the holder of a certain Note (the ‘Note') and Open-End Mortgage (the ‘Mortgage') made by you originally in favor of WORLD SAVINGS BANK, FSB dated January 31, 2003 in the original principal amount of $315, 000.00. This is to advise you that the above-referenced Note and Mortgage is in DEFAULT because installments of principal and interest have not been paid when due. The amount of payments and other charges due is $218, 906.08 as of July 19, 2014 (Please see attached itemization). If the full amount needed to bring the loan current has not been paid on/or before said date, WELLS FARGO BANK, N.A. will declare all sums secured by the mortgage immediately due and payable (technically called acceleration) without further demand.'' A memo sent with the 2014 letter to Berchem Moses provided in relevant part: ‘‘Pursuant to the language in the mortgage deed you signed, the Lender is required to advise you that you have the right to reinstate after acceleration and the right to assert in court the non-existence of a default or any other defense of Borrower to acceleration and foreclosure and sale. If the default is not cured on or before the date specified in the notice, Lender at its option may require immediate payment in full of sums secured by the Mortgage without further demand and may invoke any of the remedies permitted by Applicable Law.''

         The defendants failed to cure the default and the plaintiff elected to accelerate the balance due on the note, to declare the note due in full, and to institute foreclosure of the mortgage deed securing the note. The plaintiff then commenced the present foreclosure action against the defendants on September 26, 2014. On October 21, 2014, Berchem Moses entered an appearance on behalf of the defendants. On September 16, 2016, the plaintiff's motion to default the defendants for failure to plead was granted. On that same date, the defendants filed a motion to open the default and filed their answer with three special defenses and a counter-claim.[4] The defendants' motion to open the default was granted on September 28, 2016.

         The action was tried to the court on July 18, 2017. At the close of the plaintiff's case, the defendants moved to dismiss the case ‘‘based upon the plaintiff's failure to establish a prima facie case, specifically their failure to establish a notice of default against the defendants, which is a condition precedent to the foreclosure.'' After a recess, the court denied the defendants' motion to dismiss. The court, relying on Mortgage Electronic Registration Systems, Inc. v. Goduto, 110 Conn.App. 367, 955 A.2d 544, cert. denied, 289 Conn. 956, 961 A.2d 420 (2008), considered the 2009 letter and the 2014 letter jointly as substantively affording the defendants the requisite notice in paragraph twenty-two of the mortgage deed. The court further noted the absence of any prejudice to the defendants, and that the 2014 letter was sent to the defendants' counsel within approximately thirty days of the dismissal of the first foreclosure case. In its memorandum of decision, the court concluded that the plaintiff was entitled to a judgment of foreclosure by sale against the ...


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