U.S. Bank National Association v. Bennett

          Argued September 16, 2019

         Procedural History

         Action to foreclosure a mortgage on certain of real property of the named defendant et al., and for other relief, brought to the Superior Court in the judicial district of Hartford, where the defendant Money Market Mortgage, LLC, et al. were defaulted for failure to plead; thereafter, the named defendant filed counterclaims; subsequently, the court, Dubay, J., granted the plaintiff's motion for summary judgment as to liability on the complaint and as to the counterclaims, and the named defendant appealed to this court; thereafter, this court granted, in part, the plaintiff's motion to dismiss the appeal; subsequently, the court, Dubay, J., rendered a judgment of strict foreclosure, and the named defendant filed an amended appeal. Affirmed.

          Maria K. Tougas, for the appellant (named defendant).

          Zachary Grendi, for the appellee (plaintiff).

          Alvord, Prescott and Flynn, Js.

          OPINION

          FLYNN, J.

         The defendant Dalphine Bennett^[1] appeals from the entry of a judgment of strict foreclosure in favor of the plaintiff, U.S. Bank National Association as trustee, successor in interest to Bank of America, National Association, as trustee, successor by merger to LaSalle Bank, National Association, as trustee for Bear Stearns Asset Backed Securities Trust 2005-4, Asset-Backed Certificates, Series 2005-4. The defendant claims that the court improperly (1) granted the plaintiff's motion for summary judgment as to the defendant's counterclaims alleging (a) vexatious litigation and (b) abuse of process; and (2) failed to hold an immediate hearing in damages following the entry of summary judgment as to liability only, which violated Practice Book § 17-50. We disagree and, accordingly, affirm the judgment of the trial court.

         The following facts and procedural history are relevant to the defendant's claims on appeal. In January, 2016, the plaintiff commenced a foreclosure action against the defendant in which it alleged that a 2004 note was in default and that it sought to accelerate the balance due on the note, to declare the note to be due in full, and to foreclose on the mortgage securing the note. The defendant filed an answer, special defenses, and a two count counterclaim alleging vexatious litigation and abuse of process. The counterclaims centered on a previous 2009 foreclosure action brought by Bank of America on the same 2004 note against the same defendant.

         The plaintiff filed a motion for summary judgment as to liability only on the foreclosure complaint and on the counterclaims. The defendant filed an objection in which she argued, inter alia, that genuine issues of material fact exist as to her counterclaims. The defendant attached to her motion a JDNO notice^[2] from the 2009 foreclosure action, which indicated that a show cause hearing had been scheduled for March 18, 2013. At the hearing in the 2009 action, a transcript of which was also attached to the defendant's motion, the court had inquired as to the status of the case, and the plaintiff's counsel had indicated that he was waiting on documents from Bank of America. In the 2009 action, the court then ordered the matter dismissed. By an order dated March 18, 2013, in the 2009 action the court stated: ‘‘Any motions to open the judgment must state in the first paragraph that the matter needs to be referred to the presiding judge. Motions to open will only be considered by the court when the plaintiff moves for judgment.''

         In the present action, on September 7, 2018, the court granted the plaintiff's motion for summary judgment and entered judgment in favor of the plaintiff as to liability on the foreclosure complaint and against the defendant on her counterclaims. On September 20, 2018, the defendant appealed from the court's decision granting the plaintiff's motion for summary judgement as to liability only. The plaintiff filed a motion to dismiss the appeal, arguing that the court's decision rendering summary judgment as to liability only on the foreclosure complaint was not a final judgment and that the claims on appeal from the judgment on the counterclaim were frivolous. This court ordered the motion ‘‘granted as to the portion of the appeal challenging the granting of summary judgment as to liability only on the complaint and denied as to any portion of the appeal challenging the granting of summary judgment on the defendant's counterclaim.''

         On December 10, 2018, the plaintiff filed a motion for a judgment of strict foreclosure. The defendant filed a ‘‘motion for stay/objection to motion for judgment of strict foreclosure'' in which she requested a discretionary stay pursuant to Practice Book § 61-11 (f) to the extent that the pending appeal did not trigger the automatic stay provisions of Practice Book § 61-1 (a). The trial court denied the defendant's motion and rendered a judgment of strict foreclosure. The defendant, thereafter, amended her appeal, in which she challenged the judgment of strict foreclosure and summary judgment as to liability only.

         I

         The defendant first claims that the court improperly granted the plaintiff's motion for summary judgment as to her counterclaims. We disagree.

         We set forth our well established standard for reviewing a grant of summary judgment. ‘‘Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmov-ing party. . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. . . . A material fact . . . [is] a fact which will make a difference in the result of the case. . . . ...