180 Conn. App. 782
Conn. App. Ct.2018Background
- In 2007 Mollo executed an adjustable rate note and mortgage; Nationstar was assigned the mortgage in 2013 and sued for foreclosure after Mollo allegedly defaulted in 2012.
- Nationstar filed two motions for summary judgment; the operative motion (filed before Mollo answered) relied on the note, mortgage, assignment and an affidavit of default.
- Three days before a short calendar hearing Mollo filed an answer, three special defenses (fraudulent inducement, unclean hands, equitable estoppel), a CUTPA counterclaim, and an objection to summary judgment supported by affidavits and exhibits alleging predatory lending and misrepresentations.
- The trial court overruled Mollo’s untimely objection, considered the filings, and granted Nationstar summary judgment as to liability; a subsequent court entered a judgment of strict foreclosure.
- On appeal Mollo argued the court lacked authority to grant summary judgment as to liability because Nationstar’s motion never addressed the special defenses or counterclaim and it presented no evidence refuting them.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether court could grant summary judgment as to liability when plaintiff’s motion did not address special defenses | Nationstar argued the complaint and its supporting affidavits established an undisputed prima facie case of ownership and default, justifying liability ruling | Mollo argued Nationstar never moved against or briefed the legal sufficiency of his special defenses and offered no evidence refuting them, so liability could not be decided | Court held trial court lacked authority to grant summary judgment as to liability on issues raised by Mollo’s special defenses because those issues were outside the scope of Nationstar’s motion and were not briefed or supported by evidence |
| Whether court could sua sponte decide dispositive issues not raised by motion | Nationstar suggested court could evaluate sufficiency of defenses at hearing | Mollo contended court cannot decide dispositive questions absent a party’s proper motion and supporting proof | Court held a trial court may not grant summary judgment sua sponte on grounds not raised and supported by the moving party’s papers |
| Whether Mollo’s untimely objection forfeited consideration of his defenses | Nationstar argued objection was untimely and court could ignore it | Mollo noted timing irregularity but maintained the merits and evidentiary submissions raised genuine issues | Court acknowledged the untimeliness but concluded procedural lateness did not justify deciding those defenses on the merits without proper briefing/evidence by Nationstar |
| Jurisdiction to review purported judgment on counterclaim | Nationstar implicitly treated counterclaim as resolved by the judgment | Mollo appealed judgment on counterclaim | Court dismissed appeal as to counterclaim for lack of jurisdiction because no final judgment was entered on the counterclaim |
Key Cases Cited
- Vertex, Inc. v. Waterbury, 278 Conn. 557 (Conn. 2006) (trial court lacks authority to decide dispositive questions of law absent a party’s motion)
- Larobina v. McDonald, 274 Conn. 394 (Conn. 2005) (summary judgment may challenge legal sufficiency of a pleading when defect is clear and incurable)
- American Progressive Life & Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111 (Conn. 2009) (requirements when using summary judgment to challenge pleading sufficiency)
- GMAC Mortgage, LLC v. Ford, 144 Conn. App. 165 (Conn. App. 2013) (applying Larobina to special defenses)
- Bank of America, N.A. v. Aubut, 167 Conn. App. 347 (Conn. App. 2016) (predatory lending allegations can invoke recognized equitable defenses in foreclosure)
- Wells Fargo Bank, N.A. v. Treglia, 156 Conn. App. 1 (Conn. App. 2015) (limits on trial court authority when motions and defaults interact)
- Cummings & Lockwood v. Gray, 26 Conn. App. 293 (Conn. App. 1991) (court may not grant summary judgment sua sponte; motion and supporting proof are required)
- Miller v. Bourgoin, 28 Conn. App. 491 (Conn. App. 1992) (summary judgment cannot be granted on a claim or counterclaim without a proper motion)
- United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364 (Conn. 1969) (summary judgment inappropriate where credibility, intent, or motive are central)