190 Conn. App. 231
Conn. App. Ct.2019Background
- In 2003 the Fitzpatricks took a $315,000 mortgage; they defaulted beginning March 1, 2009.
- Wachovia (later merged into Wells Fargo) sent a May 13, 2009 letter to the property address notifying default; a first foreclosure was filed July 27, 2009 and dismissed for dormancy May 8, 2014.
- Wells Fargo’s counsel sent a June 19, 2014 certified letter to the defendants’ counsel (Berchem Moses) notifying of default and acceleration (the 2014 letter); plaintiff commenced a second foreclosure on September 26, 2014.
- At trial the defendants moved to dismiss for failure to prove the mortgage’s notice condition precedent; the trial court denied the motion, found the two letters read together substantially complied with the mortgage notice provisions, awarded foreclosure by sale, credited defendants for unclean hands delay, but rejected laches and failure-to-mitigate defenses.
- On appeal the Fitzpatricks argued (1) the lender failed to provide notice as required by paragraphs 15 and 22 of the mortgage (2014 letter improperly sent to counsel, 2009 letter insufficient alone), and (2) they established laches due to lengthy delay; the Appellate Court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Whether notice condition precedent was satisfied | Wells Fargo: the 2014 letter was substantively compliant; read with the 2009 letter it substantially complied with mortgage notice requirements | Fitzpatrick: 2014 letter was sent to counsel, not to property address as ¶15 requires; 2009 letter alone was substantively deficient | Held: Affirmed. Defendants conceded 2014 letter’s contents met ¶22; they had actual notice (2009 and participation in prior foreclosure); under Goduto the two letters read jointly substantially complied and no prejudice was shown |
| 2. Whether laches barred equitable relief | Wells Fargo: defendants failed to prove prejudice from any delay; court already adjusted interest for delay | Fitzpatrick: plaintiff’s nine-year delay was inexcusable and prejudiced them | Held: Affirmed. Laches requires inexcusable delay plus prejudice; defendants presented no evidence of prejudice and court reduced interest to address delay |
Key Cases Cited
- Mortgage Electronic Registration Sys., Inc. v. Goduto, 110 Conn. App. 367 (applied substantial‑compliance principle where two notices read jointly satisfied mortgage notice requirement)
- Aurora Loan Servs., LLC v. Condron, 181 Conn. App. 248 (mortgage notice sent to non‑property address insufficient absent proof of receipt)
- Emigrant Mortgage Co. v. D’Agostino, 94 Conn. App. 793 (principles governing mortgage notice and condition precedent to foreclosure)
- Twenty-Four Merrill Street Condominium Assn., Inc. v. Murray, 96 Conn. App. 616 (substantial compliance applied to notice provisions)
- Fidelity Bank v. Krenisky, 72 Conn. App. 700 (notice must inform mortgagor of rights; substantial compliance analysis)
- Deutsche Bank Nat’l Trust Co. v. Bliss, 159 Conn. App. 483 (prima facie case in foreclosure includes satisfaction of conditions precedent)
- Wolyniec v. Wolyniec, 188 Conn. App. 53 (lack of evidence of prejudice defeats laches defense)
- Carpenter v. Sigel, 142 Conn. App. 379 (no laches where record lacks evidence of prejudice)