182 Conn. App. 417
Conn. App. Ct.2018Background
- Bank (The Bank of New York Mellon as Successor Trustee) sued in 2009 to foreclose a 2005 note and mortgage; mortgage later assigned to substitute plaintiff.
- Plaintiff moved for strict foreclosure in 2010; mediation and discovery followed; summary judgment as to liability was granted in April 2016.
- After summary judgment as to liability, the case sat dormant; the court dismissed the action for failure to prosecute in August 2016.
- Plaintiff moved to open the dismissal within four months, produced updated affidavit of debt, appraisal, and the original note with endorsement, and reclaimed its original strict-foreclosure motion.
- Court granted the motion to open, denied defendant’s continuance request, calculated indebtedness, and rendered a judgment of strict foreclosure; defendant appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Motion to open disciplinary dismissal (§52-212 / PB §17-43) | Opening justified: delay due to late return of original documents beyond plaintiff's control; motion timely filed | Court should not have opened dismissal; plaintiff lacked reasonable cause for delay | Affirmed: court did not abuse discretion; plaintiff showed reasonable cause and defendant did not rebut facts |
| Summary judgment as to liability | Plaintiff produced note, mortgage, assignments, and affidavit showing holder status and default | Defendant argued fraud, standing defects, robo-signing, bifurcation, but offered no admissible evidence | Affirmed: prima facie case met; no genuine issue of material fact because defendant presented no competent evidence |
| Standing to foreclose | Plaintiff as holder produced original note with endorsement and mortgage assignments | Defendant challenged entity status and securitization/PSA compliance, alleging title defects | Affirmed: record supports plaintiff’s holder status; challenges to pooling/servicing do not, by themselves, defeat standing |
| Dismissal for failure to prosecute / noncompliance with court order (PB §14-3 / §17-19) | Plaintiff argued dismissal was unwarranted because it had reasonable cause and later moved to proceed | Defendant argued plaintiff failed to comply with May 6, 2015 order to advance case within 60 days and dismissal was required | Not reviewed on merits: defendant’s §17-19 claim inadequately briefed and §14-3 dismissal was properly opened; no reversible error found |
Key Cases Cited
- Brochu v. Aesys Technologies, 159 Conn. App. 584 (Conn. App. 2015) (disciplinary dismissals for lack of diligence and policy favoring merits)
- Equity One, Inc. v. Shivers, 310 Conn. 119 (Conn. 2013) (presumption of correctness for discretionary rulings absent adequate record)
- GMAC Mortgage, LLC v. Ford, 144 Conn. App. 165 (Conn. App. 2013) (summary judgment standard and prima facie foreclosure showing)
- Wells Fargo Bank, N.A. v. Strong, 149 Conn. App. 384 (Conn. App. 2014) (securitization/PSA challenges generally not dispositive of standing)
- Bank of America, N.A. v. Chainani, 174 Conn. App. 476 (Conn. App. 2017) (Practice Book §23-18 affidavit proof for amount of indebtedness)
- U.S. Bank, Nat. Assn. v. Schaeffer, 160 Conn. App. 138 (Conn. App. 2015) (rules for establishing holder status and presumption of ownership when note is produced)