Bayview Loan Servicing, LLC v. Frimel

         Argued May 22, 2019

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         Superior Court in the judicial district of Middlesex, Aurigemma, J.

          Michael J. Habib, with whom was Thomas P. Willcutts, Hartford, for the appellant (named defendant).

         Benjamin T. Staskiewicz, Hartford, for the appellee (plaintiff).

         Jeffrey Gentes filed a brief for the Connecticut Fair Housing Center as amicus curiae.

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

          OPINION

         BEACH, J.

         [192 Conn.App. 788] The defendant Sandra Frimel appeals from the judgment of foreclosure by sale rendered in favor of the plaintiff, Bayview Loan Servicing, LLC.^[1] On appeal, the defendant claims that the trial court erred in granting the plaintiff’s motion for summary judgment without the motion appearing on the short calendar and without permitting oral argument on the motion. We agree with the defendant and, accordingly, reverse the judgment of the trial court.

          The following facts and procedural history are relevant to the defendant’s claim on appeal. The plaintiff filed this action in February, 2011, seeking to foreclose a mortgage on the defendant’s property located at 158 Brainard Hill Road in Higganum. On December 23, 2013, the trial court, Domnarski, J., granted the plaintiff’s motion for summary judgment as to liability only. On [192 Conn.App. 789] April 28, 2014, the court, Marcus, J., rendered a judgment of foreclosure by sale. On August 18, 2014, Judge Domnarski granted the defendant’s motion to open the judgment and vacated the judgment of foreclosure by sale. On January 12, 2015, the plaintiff filed a motion for judgment of strict foreclosure. On January 23, 2015, the defendant filed an answer, a special defense, and a counterclaim.

         On June 2, 2017, the plaintiff filed a motion for summary judgment as to liability only on the complaint and as to the defendant’s special defense and counterclaim. On June 19, 2017, William B. Smith, trustee for Thomas P. Willcutts, the defendant’s former attorney, filed a letter informing the court that Willcutts had been placed on interim suspension from the practice of law and that the defendant had only recently become aware of Willcutts’ suspension. The letter also asked that the court offer "any appropriate forbearance or time in proceeding" with this matter.^[2]

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At a scheduled hearing on the plaintiff’s motion for summary judgment on July 24, 2017, the plaintiff’s counsel indicated that although she was ready to proceed with regard to the plaintiff’s motion for summary judgment, she would leave it to [192 Conn.App. 790] the court’s discretion in light of Willcutts’ suspension and the defendant’s attempts to retain another attorney.^[3] The defendant then informed the court that she was having a problem receiving her mail and that she had very recently learned of Willcutts’ suspension.^[4] In response, the court, Aurigemma, J., stated that it "will consider this matter on or after August [18, 2017]. If there’s nothing filed by your attorney, the court will grant the summary judgment. This case is six years old. The court is not inclined to give any more time. I think [August 18, 2017], is quite generous." Counsel for the plaintiff then inquired whether the court would want oral argument on August 18, 2017, or if it would consider the case on the papers on that date. In response, the court stated that "[i]f they file it and want argument, they can request argument ... on or before [August 18, 2017]; otherwise, I will take it on the papers."

         [192 Conn.App. 791] On August 18, 2017, Attorney Michael J. Habib filed an appearance on behalf of the defendant. On August 21, 2017, Habib filed an objection to the plaintiff’s motion for summary judgment. The opposition indicated that oral argument was requested.^[5] On August 29, 2017, the court granted the plaintiff’s motion for summary judgment on the basis of the parties’ written submissions and without a hearing. The court’s decision ...