178 Conn. App. 287
Conn. App. Ct.2017Background
- In 2006 Ford executed a $177,000 note secured by a mortgage on property in Bridgeport; GMAC (plaintiff) sued in 2010 for foreclosure after alleged default.
- Trial court granted GMAC summary judgment and entered a judgment of strict foreclosure; this court affirmed in GMAC Mortgage, LLC v. Ford (Ford I) and remanded to set new law days.
- On remand GMAC moved to substitute Wells Fargo, as Trustee for Harborview Mortgage Loan Trust 2006-10 (Wells Fargo), as plaintiff; substitution was granted without objection.
- Ford asserted he had timely rescinded the loan under TILA by mailing a notice of right to cancel within three years (and cited Jesinoski), and he moved to open the judgment; Wells Fargo also moved to open to set new law days.
- The trial court granted Wells Fargo’s motion to open and set new law days, denied Ford’s motion to open, and Ford appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court abused discretion by opening judgment for new law days and denying defendant’s motion to open | Court may exercise discretion to open judgment; substitution plaintiff seeks to proceed | Jesinoski makes a mailed TILA rescission within three years effective as a matter of law, so foreclosure should be forestalled | No abuse of discretion; Jesinoski does not automatically establish effective rescission here and court reasonably opened judgment for new law days |
| Whether a mailed TILA rescission notice alone conclusively rescinds the loan in foreclosure | N/A (plaintiff disputed effective rescission) | Mailing a written notice within three years suffices under Jesinoski to effect rescission without filing suit | Rejected: Jesinoski resolved timing/mechanism (notice vs. suit), but effectiveness also depends on whether required disclosures were made; mere allegation of mailing is insufficient |
| Whether substitute plaintiff (Wells Fargo as trustee) had standing to foreclose | Wells Fargo was real party in interest via assignment and stood in shoes of original plaintiff | Trustee lacks standing because the trust allegedly does not legally exist | Standing upheld: defendant offered no competent evidence to rebut plaintiff’s jurisdictional allegations; substitution and complaint allegations suffice |
| Whether Jesinoski requires this court to revisit its prior summary judgment decision in Ford I | N/A (plaintiff maintained prior rulings were correct) | Jesinoski overrules Ford I and shifts burden at summary judgment | Court declined to revisit Ford I; Jesinoski inapplicable to facts and does not mandate retrial or shift burden here |
Key Cases Cited
- Jesinoski v. Countrywide Home Loans, Inc., 135 S. Ct. 790 (2015) (Supreme Court: rescission under TILA is effected by timely written notice within three years; suit within three years not required)
- GMAC Mortgage, LLC v. Ford, 144 Conn. App. 165 (2013) (appellate decision affirming summary judgment and strict foreclosure; remanded to set new law days)
- Equity One, Inc. v. Shivers, 310 Conn. 119 (2013) (production of the note establishes prima facie case; defendant must prove facts that limit plaintiff’s rights)
- Rocky Hill v. SecureCare Realty, LLC, 315 Conn. 265 (2015) (when defendant fails to rebut plaintiff’s jurisdictional allegations, plaintiff may rest on complaint to establish jurisdiction)