Wells Fargo Bank, N.A. v. Fratarcangeli

          Argued March 18, 2019

         Procedural History

         Action to foreclose a mortgage on certain real property of the named defendant et al., and for other relief, brought to the Superior Court in the judicial district of Fairfield, where the defendant JPMorgan Chase Bank, N.A. was defaulted for failure to appear; thereafter, MTGLQ Investors, LP, was substituted as the plaintiff; subsequently, the named defendant filed an answer and special defenses; thereafter, the court, Hon. Alfred J. Jennings, Jr., judge trial referee, granted in part the substitute plaintiff's motion to strike the named defendant's special defenses, and the named defendant appealed to this court, which dismissed the appeal; subsequently, the matter was tried to the court, Hon. George N. Thim, judge trial referee; judgment of strict foreclosure, from which the named defendant appealed to this court. Affirmed.

          Gary L. Seymour, for the appellant (named defendant).

          Todd H. Lampert, with whom, on the brief, was Arthur C. Zinn, for the appellee (substitute plaintiff).

          DiPentima, C. J., and Moll and Norcott, Js.

          OPINION

          MOLL, J.

         The defendant, Nicole M. Fratarcangeli,^[1]appeals from the judgment of strict foreclosure rendered after a court trial in favor of the substitute plaintiff, MTGLQ Investors, LP. On appeal, the defendant claims that the court erred when it granted the substitute plaintiff's motion to strike as to her first and second special defenses of (1) illegal attestation of the mortgage deed and (2) unclean hands as to the attestation of the mortgage deed. We disagree and, accordingly, affirm the judgment of the trial court.

         The following facts and procedural history are relevant to our resolution of the defendant's claims. In its complaint, the original plaintiff, Wells Fargo Bank, N.A., alleged the following relevant facts. On March 21, 2005, the defendant executed a promissory note, in the principal amount of $535, 000, in favor of World Savings Bank, FSB (World Savings Bank). The note was secured by a mortgage executed by the defendant on real property located at 370 Wilson Road in Easton. On April 4, 2005, the mortgage deed was recorded on the Easton land records. Thereafter, the original plaintiff acquired Wachovia Mortgage, FSB, formerly known as World Savings Bank. Beginning in July, 2009, and each and every month thereafter, the defendant failed to make payments on the note. On or before April 21, 2015, the original plaintiff became the party entitled to collect the debt evidenced by the note and to enforce the mortgage. In connection with the defendant's default on the note, the original plaintiff exercised its option to declare the entire balance of the note due and payable. In July, 2016, the original plaintiff commenced this foreclosure action against the defendant.

         On December 2, 2016, the original plaintiff filed a motion for a judgment of strict foreclosure. On March 2, 2017, the original plaintiff filed a motion to substitute party plaintiff, as well as an accompanying memorandum of law in support thereof and an appended copy of its assignment of the mortgage to the substitute plaintiff. On March 20, 2017, the court granted the motion to substitute.

         On May 17, 2017, the defendant filed an answer and eight special defenses.^[2] In support of her first and second special defenses, the defendant alleged the following facts. World Savings Bank procured and paid for, as part of the closing costs, the services of a notary public, Kathleen Salerno, who conducted the closing at the defendant's home in Easton. While at the defendant's home, Salerno had the defendant execute all of the necessary closing documents, including the mortgage deed, but Salerno did not notarize those documents while at the defendant's home and did not request or provide a second attesting witness to the mortgage deed as required by General Statutes § 47-5 (a).^[3] Rather, Salerno subsequently had her husband ‘‘witness'' the defendant's signature, outside of the defendant's presence and without the defendant's knowledge.

         For her first special defense of illegal attestation of the mortgage deed, the defendant alleged that, on the basis of the foregoing factual allegations, Salerno, as an agent of World Savings Bank and a public official in her capacity as a notary public, breached her oath of office and committed acts of fraud in the execution of the mortgage deed, rendering the deed invalid and unenforceable. For her second special defense of unclean hands, relying on the same factual allegations, the defendant claimed that Salerno, as an agent of World Savings Bank, supplied a false witness in an effort to validate the mortgage and that such action constituted ‘‘a blatant dishonest attempt to validate an invalid mortgage . . . .'' The remaining special defenses are not at issue in this appeal.

         On May 31, 2017, the substitute plaintiff filed a motion to strike the defendant's special defenses, including the first and second special defenses, contesting the legal sufficiency thereof. On July 12 and 13, 2017, respectively, the defendant filed an objection and a memorandum of law in opposition to the motion to strike. On November 21, 2017, the court, inter alia, granted the substitute plaintiff's motion to strike as to the defendant's first and second special defenses.^[4] With respect to the first special defense of illegal attestation of the mortgage deed, the court granted the motion on two grounds: (1) the defect of one invalid witness was cured by operation of General Statutes § 47-36aa (validating act); and (2) a defect in a mortgage cannot be used to defeat a foreclosure action as between the original mortgagor and mortgagee, as a mortgage deed that is not properly witnessed and acknowledged is nevertheless valid as between the parties to the instrument.^[5] As to the defendant's second special defense of unclean hands, the court granted the motion to strike on the ground that the defect of one invalid witness was validated by § 47-36aa (a) (2), and Salerno's alleged fraudulent misconduct played no role in aiding the substitute plaintiff's claim for foreclosure. On December 20, 2017, the substitute plaintiff filed a reply to the defendant's non-stricken special defenses.

         On April 12, 2018, following a trial to the court, the court rendered a judgment of strict foreclosure in favor of the substitute plaintiff. This appeal followed. Additional ...