WELLS FARGO BANK, N.A.
NICOLE M. FRATARCANGELI ET AL.
March 18, 2019
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.
L. Seymour, for the appellant (named defendant).
H. Lampert, with whom, on the brief, was Arthur C. Zinn, for
the appellee (substitute plaintiff).
DiPentima, C. J., and Moll and Norcott, Js.
defendant, Nicole M. Fratarcangeli,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.
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.
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.
17, 2017, the defendant filed an answer and eight special
defenses. 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). Rather, Salerno
subsequently had her husband ‘‘witness''
the defendant's signature, outside of the defendant's
presence and without the defendant's knowledge.
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.
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. 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. 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.
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 ...