180 Conn.App. 765
Conn. App. Ct.2018Background
- Park City Sports, LLC (borrower) executed a $390,000 note in 2004 payable to InterBay Funding, LLC, secured by a mortgage on a multiunit property; Robert P. Carter signed a personal guaranty and managed Park City.
- InterBay assigned the note and mortgage to Bayview Loan Servicing, LLC (plaintiff), which alleged Park City defaulted by failing monthly payments beginning December 1, 2012, and commenced foreclosure in November 2013.
- Defendants filed amended answer and special defenses alleging misapplication/miscalculation of payments, an inaccurate federal loss mitigation affidavit, and CUTPA violations; Carter also sought inclusion in the foreclosure mediation program.
- Plaintiff moved for summary judgment as to liability and submitted affidavits and documentary proof (note, mortgage, assignment, endorsements); defendants opposed with Carter’s affidavit but presented no documentary counterevidence.
- Trial court granted summary judgment on liability, found defendants’ special defenses legally insufficient, allowed plaintiff to correct its federal loss affidavit, and later entered a judgment of strict foreclosure; defendants appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Subject-matter jurisdiction based on compliance with Judicial Branch standing order (federal loss affidavit) | Standing orders are discretionary and nonjurisdictional; any deficiency does not oust jurisdiction; plaintiff later filed corrected affidavit | Failure to file a compliant federal loss affidavit per standing order deprived court of jurisdiction and barred judgment | Affirmed: Standing orders are not statutes or constitutional provisions; noncompliance does not deprive court of subject-matter jurisdiction |
| Summary judgment on liability (ownership, default, notice, endorsements) | Submitted prima facie proofs (note, mortgage, assignment, endorsements, default notice) establishing holder status and default | Raised factual disputes (payment misapplication, date/amount of default, chain of endorsements) but offered only affidavit assertions without documentary support | Affirmed: Plaintiff established prima facie case; defendants failed to present specific evidentiary contrary facts to defeat summary judgment |
| Legal sufficiency of special defenses (no default; CUTPA) | Defenses depend on alleged misapplication/miscalculation of payments; plaintiff showed no record of such errors | Defendants argued misapplied escrow and payments negating default and supporting CUTPA claim | Affirmed: Special defenses legally insufficient—defendants produced no competent evidence of misapplication or miscalculation |
| Denial of Carter’s petition to participate in foreclosure mediation | Plaintiff: denial was within court’s discretion and record is sparse; Carter untimely and not mortgagor | Carter: he qualified as an aggrieved person and was entitled to mediation | Not reviewable on appeal: record inadequate (no transcript, no motion for articulation); appellate review would be speculative |
Key Cases Cited
- Deutsche Bank Nat. Tr. Co. v. Cornelius, 170 Conn. App. 104 (discusses that jurisdictional scope derives from statute/constitution; standing orders do not create jurisdictional limits)
- Norwich v. Norwich Harborview Corp., 156 Conn. App. 45 (standing orders are for convenience and not Practice Book rules; courts may exercise discretion)
- Novak v. Levin, 287 Conn. 71 (time limits and rules of practice do not create jurisdictional prerequisites)
- GMAC Mortgage, LLC v. Ford, 144 Conn. App. 165 (opposition to summary judgment must be supported by counteraffidavits or documentary evidence)