Wells Fargo Bank, N.A v. Ferraro

          Argued October 8, 2019

         Procedural History

         Action to foreclose a mortgage on certain real property owned by the named defendant et al., and for other relief, brought to the Superior Court in the judicial district of Ansonia-Milford, where Wilmington Trust, National Association, as trustee for MFRA Trust 2015-2, was substituted as the plaintiff; thereafter, the court, Hon. John W. Moran, judge trial referee, granted the substitute plaintiff's motion for summary judgment asto liability; subsequently, the court granted the substitute plaintiff's motion for a judgment of strict foreclosure and rendered judgment thereon, from which the named defendant et al. appealed to this court. Reversed; further proceedings.

          William J. Whewell, with whom, on the brief, was Dorian D. Arbelaez, for the appellants (named defendant et al.).

          Benjamin T. Staskiewicz, for the appellee (substi- tute plaintiff).

          Elgo, Devlin and Sheldon, Js.

          OPINION

          PER CURIAM.

         The defendants Thomas J. Ferraro and Danielle Ferraro^[1] appeal from the judgment of strict foreclosure rendered by the trial court in favor of the substitute plaintiff, Wilmington Trust, National Association, as trustee for MFRA Trust 2015-2.^[2] The defendants claim that the trial court erred when it granted summary judgment as to liability in favor of the plaintiff after it held an evidentiary hearing, and weighed and relied on the evidence adduced at that hearing, in resolving an issue of material fact in favor of the plaintiff. We reverse the judgment of the trial court.

         On July 1, 2013, the original plaintiff, Wells Fargo Bank, N.A. (Wells Fargo), filed this foreclosure action alleging that the defendants had executed a promissory note and mortgage on certain property in its favor and that the defendants had defaulted on the note. The plaintiff thereafter filed a motion for summary judgment as to liability only on the foreclosure complaint against the defendants, arguing that there was no genuine issue as to any material fact and, therefore, that it was entitled to judgment as a matter of law. In response, the defendants filed an objection on the ground that a genuine issue of material fact existed as to whether Wells Fargo had complied with the notice provisions of the Emergency Mortgage Assistance Program (EMAP), General Statutes § 8-265cc et seq.^[3]

         On July 12, 2018, the court held an evidentiary hearing ‘‘limited to a singular issue by virtue of the defendants' objection to [the] plaintiff's motion for summary judgment dated May 14, 2018, raising an objection based on a-whether it was proper service of the EMAP notice.''^[4] At that hearing, the plaintiff presented the live testimony of two witnesses and introduced five exhibits into evidence in support of its contention that it had complied with the notice provisions of EMAP. Both of the defendants testified that they did not receive an EMAP notice.

         At the conclusion of the hearing, the court held in relevant part: ‘‘Based on the credible testimony and the evidence, the court finds that there has been full compliance with [General Statutes §] 8-265ee.'' On that basis, the court determined that there was no genuine issue of material fact and thus granted summary judgment as to liability only in favor of the plaintiff. The court thereafter granted the plaintiff's motion for judgment of strict foreclosure, from which the defendants now appeal.

         On appeal, the defendants claim that the trial court improperly permitted, considered and relied on live testimony from witnesses at an evidentiary hearing on the plaintiff's motion for summary judgment. We agree.

         This court's decision in Magee Avenue, LLC v. Lima Ceramic Tile, LLC, 183 Conn.App. 575, 579-80, 193

         A.3d 700 (2018), is dispositive of the defendants' claim on appeal. In holding that the trial court improperly permitted and considered live testimony during the hearing on the motion for summary judgment, the court in Magee Avenue, LLC, set forth the following reasoning: ‘‘The fundamental purpose of summary judgment is preventing unnecessary trials. . . . If evidentiary presentations and testimony were to be permitted, the intent to reduce litigation costs by way of the summary judgment procedure would be undermined, and there may as well be a trial on the merits. . . . A summary judgment should be summary; that is, made ina prompt, simple manner without a full-scale trial. ...