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Wells Fargo Bank, N.A. v. Fitzpatrick

Appellate Court of Connecticut

May 21, 2019

WELLS FARGO BANK, N.A.
v.
James R. FITZPATRICK et al.

         Argued December 12, 2018

         Appeal from the Superior Court, Judicial District of Fairfield, Alfred J. Jennings, Jr., Judge Trial Referee.

Page 89

[Copyrighted Material Omitted]

Page 90

          Bryan L. LeClerc, Milford, 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.

         [190 Conn.App. 233] The defendants, James R. Fitzpatrick

Page 91

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 [190 Conn.App. 234] 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 Bank Southwest, National Association, and merged with and into the ...


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