McClancy v. Bank of America, N.A.
176 Conn. App. 408
Conn. App. Ct.2017Background
- Plaintiffs Christopher McClancy and Loretta Giannone executed a note and mortgage in favor of Bank of America (BoA) in 2007 and sought a loan modification in 2011.
- Plaintiffs submitted a completed modification application in November 2011; BoA sent letters stating it would evaluate their loan for possible modification and informed them servicing would transfer to Bayview effective December 1, 2011.
- BoA transferred servicing to Bayview; neither BoA nor Bayview ever offered or entered into a loan modification with the plaintiffs.
- Plaintiffs sued BoA (and others) claiming breach of contract, negligent/ reckless/intentional misrepresentation, CUTPA violation, and civil conspiracy; summary judgment was granted for BoA and plaintiffs appealed.
- At summary judgment, BoA relied on the note, mortgage, transfer notice, and an affidavit; plaintiffs relied on correspondence and affidavits asserting they were told they would be "considered" for modification.
- The trial court granted summary judgment to BoA; the Appellate Court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Breach of contract — existence of modification contract | Plaintiffs say facts show a contract/offer to modify or genuine disputes raising contract issues | BoA says no offer/accepted terms; mortgage/note impose no duty to modify and BoA could transfer servicing | Not reviewed on merits — plaintiffs’ briefing inadequate, so claim rejected |
| Statute of frauds / promissory estoppel exception | Plaintiffs argue promissory estoppel should bar statute of frauds and enforce oral promise to modify | BoA says no enforceable promise was made; courts have not accepted promissory estoppel as exception | Court: Connecticut hasn't adopted promissory estoppel as an exception; even if it had, plaintiffs presented no clear promise to modify, so claim fails |
| Negligent misrepresentation | Plaintiffs contend BoA misrepresented that it would evaluate and thereby induced reliance and harm | BoA says its statements were true — it was reviewing materials and properly notified of servicing transfer (mortgage allows transfer) | Held for BoA: plaintiffs failed to show the representation was false when made; evidence shows BoA was considering modification while servicing loan |
| CUTPA violation | Plaintiffs claim BoA acted deceptively/bad faith in communications and in transferring loan during modification process | BoA says no deceptive practice: no promise to modify, letters accurately described process, mortgage permits transfer | Held for BoA: plaintiffs failed to show unfair/deceptive practice or violation of identifiable public policy; no evidence of promise or misrepresentation |
Key Cases Cited
- Romprey v. Safeco Ins. Co. of America, 310 Conn. 304 (standards for summary judgment review)
- Glazer v. Dress Barn, Inc., 274 Conn. 33 (discussion on promissory estoppel and statute of frauds)
- Stewart v. Cendant Mobility Servs. Corp., 267 Conn. 96 (elements of promissory estoppel)
- Coppola Constr. Co. v. Hoffman Enters. Ltd. P’ship, 309 Conn. 342 (elements of negligent misrepresentation)
- Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1 (CUTPA unfairness test)
- Recall Total Info. Mgmt., Inc. v. Federal Ins. Co., 317 Conn. 46 (clarifying appellate burden on summary judgment review)
- Hanlon v. Bank of Am., FSB, 65 Conn. App. 577 (procedural citation referenced by parties)