WELLS FARGO BANK, N.A.
v.
Sandra CALDRELLO
Argued
February 5, 2019
Appeal
from the Superior Court in the judicial district of New
London, where the defendant filed a counterclaim; thereafter,
the court, Cosgrove, J.
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[Copyrighted Material Omitted]
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Sandra
Caldrello, self-represented, the appellant (defendant).
William
J. Hanlon, with whom, on the brief, was David M. Bizar, for
the appellee (plaintiff).
Keller,
Elgo and Harper, Js.
OPINION
KELLER,
J.
[192
Conn.App. 4] The self-represented defendant,[1] Sandra
Caldrello, appeals from the judgment of strict foreclosure
rendered in favor of the plaintiff, Wells Fargo Bank, N.A.
The defendant claims that[2] (1) the court erred in concluding
that a genuine issue of material fact did not exist with
respect to the plaintiffs standing to foreclose the mortgage
and rendering summary judgment as to liability in favor of
the plaintiff, (2) after the court granted the motion for
summary judgment with respect [192 Conn.App. 5] to liability
but prior to the time that it rendered judgment of strict
foreclosure, the court deprived her of her right to conduct
additional discovery and her right to a new trial related to
the fact that, following the rendition of summary judgment,
the plaintiff attached a blank endorsement to the note at
issue in this action, and (3) the court erred in granting the
plaintiffs motion to strike two counts of her counterclaim
alleging violations of the Connecticut Unfair Trade Practices
Act (CUTPA),
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General Statutes § 42-110a et seq., and the Truth in Lending
Act (TILA),[3] 15 U.S.C. § 1601 et seq. We affirm the
judgment of the trial court.
The
following undisputed facts and procedural history are
relevant to this appeal. On September 12, 2012, the plaintiff
commenced this foreclosure action. The complaint alleged that
on February 9, 2007, the defendant signed a promissory note
in the amount of $480,000 in favor of the World Savings Bank,
FSB (World Savings). The note was secured with a mortgage on
property owned by the defendant known as 939 Pequot Avenue in
New London. The plaintiff alleged that it was the party
entitled to collect the debt evidenced by the note and the
party entitled to enforce the mortgage, as it is the
successor by merger to the original mortgagee, World Savings,
that the defendant was in default on her obligations under
the note, and that it had exercised its right to accelerate
the debt and to commence this action.
Prior
to rendering summary judgment as to liability in favor of the
plaintiff, the court, Cosgrove, J. ,[4] granted [192
Conn.App. 6] the plaintiffs motion to strike the defendants
revised counterclaim. The circuitous procedural journey to
the striking of the defendants counterclaim commenced on
February 11, 2015, when the defendant filed her first of many
sets of counterclaims and associated "supplements"
and "addenda." On May 20, 2015, after the plaintiff
had previously filed a series of requests for the defendant
to revise her counterclaim, the defendant filed a revised
counterclaim containing thirty-two counts.
On
August 4, 2015, the plaintiff moved to strike all thirty-two
counts of the revised counterclaim. On October 23, 2015, the
defendant filed a "Defendants Addendum to
Counterclaims." The plaintiff moved to strike the
addendum, arguing that the defendant had failed to satisfy
the requirements of Practice Book § 10-60 and had improperly
amended her revised counterclaim. Judge Cosgrove granted the
plaintiffs motion to strike the addendum on December 4,
2015, simultaneously overruling the defendants objection to
the plaintiffs motion to strike her addendum.
On
January 5, 2016, Judge Cosgrove issued a memorandum of
decision striking the defendants revised counterclaim. On
January 20, 2016, the defendant filed a counterclaim
containing thirty-one repleaded counts. The plaintiff again
moved to strike all of the counts of the counterclaim. On May
3, 2016, Judge Cosgrove granted in part the plaintiffs
motion, striking all but one of the defendants repleaded
counts as legally insufficient or as asserting claims on
which relief may not be granted in the form of a judgment on
a counterclaim. The court did not strike count twenty-nine,
however, which alleged breach of contract.[5]
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In its
January 5, 2016 memorandum of decision, the court agreed with
the plaintiffs argument that in ruling [192 Conn.App. 7] on
the motion to strike, it could address the plaintiffs
argument that the statutes of limitations applicable to the
CUTPA and TILA causes of action barred those claims. Although
a claim that an action is barred by the lapse of the statute
of limitations usually must be pleaded as a special defense,
and not raised by a motion to strike; see Forbes v.
Ballaro, 31 Conn.App. 235, 239, 624 A.2d 389 (1993); see
also Practice Book § 10-50; the court determined that the
issues in this case met one of the two limited situations
where the use of a motion to strike to raise the defense of
the statute of limitations is permissible. See Forbes
v. Ballaro, supra, at 239-40, 624 A.2d 389
("where a statute gives a right of action which did not
exist at common law, and fixes the time within which the
right must be enforced, the time fixed is a limitation or
condition attached to the right— it is a limitation of
the liability itself as created, and not of the remedy
alone" [internal quotation marks omitted] ).
Noting
that the execution of the note and mortgage occurred on
February 9, 2007, Judge Cosgrove, after reviewing the
defendants myriad allegations pertaining to violations of
the two statutes,[6] determined that "[c]ounts eight
through ten [of the counterclaim] allege inaccurate material
disclosures, as opposed to a failure to provide material
disclosures [and], therefore, the defendants right to
rescind expired three years from the date of consummation or
delivery of all material disclosures. While counts eight
through ten allege inaccurate material disclosures, count
seven alleges that the closing agent failed to provide copies
of the signed closing documents. Even taking this fact in the
light most favorable to the defendant— that the closing
agent is an agent of the plaintiff and the closing documents
are material disclosures as defined by 12 C.F.R. § 1026.23
(a) (3) (ii)— the defendants claim is still [192
Conn.App. 8] barred by 15 U.S.C. § 1635 (f)s statute of
limitation[s].[7] The [defendant] fails to allege any
facts in [counts] seven or thirty regarding the transfer of
all of the defendants interest in the property or the sale
of the property, so the date of consummation remains the time
measure. More than three years elapsed between February 9,
2007 and August 31, 2012. Further, while the defendant
alleged that she has the right of rescission under recoupment
pursuant to TILA, she has not alleged recoupment as a matter
of defense, pursuant to 15 U.S.C. § 1640 (e), but rather, as
a counterclaim. Finally, equitable tolling does not apply to
[count] thirty because [§ ] 1635 (f) completely extinguishes
the right of rescission at the end of the [three] year
period. Beach v. Ocwen Federal Bank, [523 U.S. 410');">523 U.S. 410,
412, 118 S.Ct. 1408, 140 L.Ed.2d 566 (1998)]." (Footnote
added.) Judge Cosgrove concluded that the statute of
limitations pursuant to TILA expired on February 9, 2010. He
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applied the same expiration date in striking counts eight
through ten alleging CUTPA violations, noting that CUTPA, a
statutory cause of action that did not exist at common law,
also has a limitation period of three years after the
occurrence of a violation. See General Statutes § 42-110g
(f). Judge Cosgrove further concluded that the defendant had
failed to plead facts sufficient to demonstrate fraudulent
concealment, which might otherwise toll the statute of
limitations.
On
January 20, 2016, the defendant filed a thirty-one count
amended counterclaim, which she corrected by [192 Conn.App.
9] changing a date, on January 25, 2016. The plaintiff again
moved to strike the counterclaim. Judge Cosgrove struck all
of the counts of the amended counterclaim except a single
breach of contract claim, agreeing with the plaintiff that
the legal insufficiencies in the defendants prior
counterclaim had not been cured and that the defendant
improperly had used her opportunity of pleading over pursuant
to Practice Book § 10-44 to add additional
claims.[8]
On
June 15, 2016, the plaintiff filed a motion for summary
judgment as to liability on its complaint and as to the
defendants counterclaim for breach of contract. In its
memorandum of law in support of the motion, the plaintiff
argued that there were no genuine issues of material fact
regarding the defendants liability under the note and the
mortgage, and that summary judgment was proper because the
defendants counterclaim was legally insufficient.
During
the course of this litigation, the plaintiff presented to the
court and to the defendant the original promissory note and
the recorded mortgage. The original note is an adjustable
rate mortgage note, "pick-a-payment" loan signed by
the defendant and payable to World Savings. Prior to the
rendering of summary judgment, the original note had not been
endorsed in any manner and remained payable by its express
terms to "[World Savings], a federal savings bank, its
successor and/or assignees, or anyone to whom this Note is
transferred." The recorded mortgage references this
promissory note.
In
support of its motion for summary judgment as to liability,
the plaintiff submitted an affidavit from Shae Smith, the
vice president for loan documentation for the plaintiff. In
her affidavit, Smith averred that she is [192 Conn.App. 10]
familiar with the business records maintained by the
plaintiff, which records were made at or near the time of the
event recorded by the plaintiff, that it was a regular
practice for the plaintiff to make those records and that her
knowledge was acquired from the examination of these business
records. Smith stated that the defendant executed and
delivered an adjustable rate mortgage note dated February 9,
2007, in the amount of $480,000 to World Savings. She further
stated that the plaintiff is the successor by merger to the
mortgagee. Specifically, Smith stated that on December 31,
2007, ten months after the making of the note and mortgage,
World Savings merged and changed its name to Wachovia
Mortgage, FSB (Wachovia). This transaction is documented by
correspondence annexed to Smiths affidavit from the Office
of Thrift Supervision within the United States Department of
the Treasury. Smith further stated, on the basis of her
examination of the plaintiffs business records, that, on
November 1, 2009, Wachovia converted to a National Bank named
Wells
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Fargo Bank, Southwest, N.A., and that on the same date Wells
Fargo Bank Southwest, N.A., merged into Wells Fargo Bank,
N.A., the plaintiff in this action. These conversions of
corporate names and status were documented by correspondence
from the Office of the Comptroller of the Currency annexed to
the affidavit. Smith further averred that the plaintiffs
attorney was in possession of the note at the time this
litigation was commenced and that the note had been in
default since December, 2011. Also annexed to Smiths
affidavit was a copy of a "Notice to Cure and Intent to
Accelerate" document sent to the defendant. Finally,
Smith stated that the plaintiff had not received funds
sufficient to cure the default on the defendants promissory
note.
Given
that the plaintiff claimed to hold the note by virtue of a
series of corporate mergers, name changes and conversions,
the plaintiff provided an additional [192 Conn.App. 11]
affidavit from Paul Hoff, the plaintiffs implementation
consultant, to support its motion for summary judgment. Hoff
averred that his affidavit was based on his examination of
the business records maintained by the plaintiff and,
specifically, his interpretation of the electronic records
relating to the defendants February 9, 2007 note and
mortgage to World Savings. Hoff concluded that the plaintiff
is properly identified on the loan transfer history as the
investor entity that owned the defendants note.
In its
memorandum of law in support of its motion for summary
judgment, the plaintiff argued that it had established with
competent evidence a prima facie case of liability in a
mortgage foreclosure action through the affidavits of Smith
and Hoff, and the documentation attached to them, which
established that (1) there was a loan, evidenced by the note,
payable to World Savings; (2) the plaintiff was and, since
prior to the commencement of the foreclosure action, had been
the party entitled to collect the debt evidenced by that
note; (3) the defendant was in default; and (4) the
indebtedness due under the note had been accelerated. The
plaintiff asserted that it had standing to foreclose on the
mortgage because, as evidenced by the Hoff affidavit and its
supporting exhibits, the plaintiff not only was in possession
of the original note, but had the rights of the original
holder of the note, World Savings, by operation of the
federal merger statute, 12 U.S.C. § 215a (e)
2006.[9]
[192
Conn.App. 12] In her objection to the plaintiffs motion for
summary judgment, relevant to standing, the defendant argued
that the plaintiff failed to provide any documents that
proved it was the owner of the note and had not met its
burden to prove standing. She claimed that the plaintiff was
defrauding the court with false assertions of ownership of
the note. She questioned
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whether the affiants, Smith and Hoff, actually had personal
knowledge of the facts to which they had
attested.[10] Her primary argument concerned a
transaction whereby World Savings transferred or sold the
note to its subsidiary, World Loan Company (World Loan), on
May 3, 2007. She asserted that Wachovia, which formerly was
known as World Savings, could not have reacquired ownership
of the note without World Loan having first endorsed the
note, and that there was no endorsement attached to the note
at the time the plaintiff commenced the foreclosure action.
She also claimed that there was no evidence that World
Savings or Wachovia had transferred the note. She further
argued that the Federal Home Loan Bank of San Francisco took
title to and [192 Conn.App. 13] owned the note by virtue of a
Uniform Commercial Code financing statement, which was filed
to establish a security interest in the assets of World Loan.
The defendant argued, as well, that she had received a letter
on May 2, 2012, from the plaintiffs counsel, stating in
relevant part: "This office has been retained by
Wachovia Mortgage, a Division of [the plaintiff], the
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