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Bayview Loan Servicing, LLC v. Frimel

Court of Appeals of Connecticut

September 17, 2019

BAYVIEW LOAN SERVICING, LLC
v.
SANDRA FRIMEL ET AL.

          Argued May 22, 2019

         Procedural History

         Action to foreclose a mortgage on certain of the named defendant's real property, and for other relief, brought to the Superior Court in the judicial district of Middlesex, where the named defendant filed a counterclaim; thereafter, the court, Aurigemma, J., granted the plaintiff's motion for summary judgment as to liability on the complaint and as to the counterclaim; subsequently, the court denied the named defendant's motion to reargue and for reconsideration; thereafter, the court, Domnarski, J., rendered a judgment of foreclosure by sale, from which the named defendant appealed to this court; subsequently, the court, Aurigemma, J., denied the named defendant's motion for articulation; thereafter, this court granted the named defendant's motion for review but denied the relief requested therein. Reversed; further proceedings.

          Michael J. Habib, with whom was Thomas P. Will-cutts, for the appellant (named defendant).

          Benjamin T. Staskiewicz, 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.

         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 Roadin Higganum. On December 23, 2013, the trial court, Domnarski, J., granted the plaintiff's motion for summary judgment as to liability only. On 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] 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 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.''

         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 stated: ‘‘Absent opposition. The motion for summary judgment was filed in June. It appeared on the calendar on [July 24, 2017]. At that time the defendant's attorney was suspended from practice. The court stated that it would not consider the motion until August 18, 2017, thereby giving the defendant or her attorney time to file something in opposition to the motion for summary judgment. As of August 18, 2017, there was nothing filed in opposition. The defendant's new attorney filed a one page objection to the [motion for] summary judgment on August 21, 2017, but filed no memorandum of law and filed no evidence or affidavit in opposition to the summary judgment motion. Given the age of this case and the unfairness to the plaintiff, the court finds that the defendant's conduct is motivated only by desire to delay proceedings and, in the absence of anything substantive to oppose the plaintiff's [motion for] summary judgment, the same is granted.''

         On September 19, 2017, the defendant filed a motion to reargue and for reconsideration, [6] contending that the court's order granting the plaintiff's motion for summary judgment was ‘‘against applicable law in its failure to permit the defendant to present her opposition to the plaintiff's motion, by way of argument or otherwise, and its failure to consider the same in granting the plaintiff's motion.'' That same day, the plaintiff filed an objection to the defendant's motion to reargue and for reconsideration. On October 10, 2017, the court denied the defendant's motion and sustained the plaintiff's objection thereto. On December 18, 2017, Judge Domnarski rendered a judgment of foreclosure by sale. The defendant then filed the present appeal.

         On appeal, the defendant claims that the 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. The plaintiff counters that the court acted within its discretion in scheduling the hearing on its motion for summary judgment, setting deadlines for the defendant's opposition to be filed and, ultimately, granting the motion for summary judgment. We agree ...


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