THE BANK OF NEW YORK MELLON, TRUSTEE v. SEBASTIAN MANGIAFICO ET AL.
AC 42560
Appellate Court of Connecticut
July 7, 2020
Lavine, Moll and Devlin, Js.
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Syllabus
The plaintiff bank sought to foreclose a mortgage on certain real property owned by the defendant M, following M‘s failure to make any payment on the note for a period of more than eight years. The trial court granted the plaintiff‘s motion for summary judgment as to liability only and rendered a judgment of strict foreclosure, from which M appealed. On appeal, M claimed that the trial court erred in granting the plaintiff‘s motion for summary judgment because the action was time barred by statute (
- M‘s claim that the limitation period in
§ 42a-3-118 barred the foreclosure action was unavailing; the statute, which required that any action to enforce the underlying debt represented by a note must be initiated within six years after the accelerated due date in the note, applies only to the enforcement of a note and did not bar a mortgage foreclosure action on the same debt, and this court declined to overrule precedential case law defining the note and the mortgage as separate instruments and actions for foreclosure of the mortgage and upon the note as distinct causes of action. - The trial court properly rejected the viability of M‘s special defense that the plaintiff engaged in inequitable conduct: M failed to sufficiently allege a valid defense or otherwise meet his burden of proving the facts alleged in his special defense, as his support of his defense consisted only of an affidavit providing merely conclusory statements that did not go to the making, validity or enforcement of the mortgage, and the court properly refused to consider M‘s testimony at the summary judgment hearing; moreover, M‘s attempted reliance on appeal on findings in the foreclosure mediator‘s final report was unavailing, as neither party had submitted the report to the trial court for its consideration in the summary judgment context and, thus, this court did not consider that evidence.
Submitted on briefs March 2—officially released July 7, 2020
Procedural History
Action to foreclose a mortgage on certain real property owned by the named defendant, and for other relief, brought to the Superior Court in the judicial district of Hartford, where the defendant Stuart Hecht et al. were defaulted for failure to appear; thereafter, the court, Dubay, J., granted the plaintiff‘s motion for summary judgment as to liability only; subsequently, the court granted the plaintiff‘s motion for judgment of strict foreclosure and rendered judgment thereon, from which the named defendant appealed to this court. Affirmed.
Paul G. Ryan, filed a brief for the appellant (named defendant).
Adam D. Lewis, filed a brief for the appellee (plaintiff).
Opinion
The record reveals the following facts and procedural history. On February 17, 2007, the defendant executed a promissory note (note) payable to Ascella Mortgage, LLC, in the principal amount of $672,000. To secure the note, the defendant executed an open-end mortgage deed (mortgage) in favor of Mortgage Electronic Registration Systems, Inc., as nominee for Ascella Mortgage, LLC, on real property located at 35 Sullivan Farm Road in Broad Brook (property). Beginning in February, 2008, and each and every month thereafter, the defendant failed to make any payment on the note. The plaintiff is the present holder of the note, and the mortgage was assigned to the plaintiff on August 11, 2016.
On August 19, 2016, the plaintiff commenced this mortgage foreclosure action by way of a one count foreclosure complaint.
On February 28, 2018, the defendant filed an answer and special defenses. Specifically, the defendant alleged the following as special defenses: (1) he did not believe that the amount of the debt stated was accurate; (2) he did not believe that the plaintiff was the proper holder of the note and the mortgage; (3) he did not know if the mortgage was properly recorded; (4) the plaintiff and its predecessors had acted in bad faith by not communicating with the defendant and refusing to make payment arrangements with him; (5) the plaintiff violated the mediator‘s instructions and did not participate in foreclosure mediation in good faith; (6) the plaintiff failed to bring this action within six years from the defendant‘s last payment; (7) the plaintiff knew that the defendant had asserted defenses to the enforcement of the loan in a previous foreclosure action that was “dismissed“;4 and (8) it was unfair for the plaintiff to
prosecute this foreclosure action after a previous foreclosure action was “dismissed.” On October 10, 2018, the plaintiff filed a motion for summary judgment as to liability only, a memorandum of law in support of the motion, an affidavit of Keli Smith, and appended exhibits. The defendant filed an objection to the motion “under oath.” Following a hearing on December 10, 2018, the court granted summary judgment with respect to liability only in favor of the plaintiff. The defendant‘s motion to reargue that decision was denied.
On January 28, 2019, the court rendered a judgment of strict foreclosure in favor of the plaintiff. This appeal followed. The court subsequently granted in part a motion for articulation filed by the defendant and summarized the court‘s reasoning for granting summary judgment, essentially adopting the analysis of the plaintiff as set forth in its moving papers. The court further stated: “To the extent that [the] defendant‘s purported special defenses are able to be construed as even constituting special defenses, none [goes] to the making, validity or enforcement of [the] note and/or [the] mortgage. The ‘affidavit’ of the defendant provides zero evidence, rather conclusory statements, at best. The defendant proudly asserts that he has been in default of his obligations for eight years. Foreclosure is an equitable proceeding.” Additional facts will be set forth as necessary.
We begin by setting forth the relevant standard of review and legal principles. “In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. . . . Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact . . . a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. . . . A material fact is one that makes a difference in the outcome of a case. . . .
“Summary judgment shall be granted if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that
“Appellate review of the trial court‘s decision to grant summary judgment is plenary. . . . [W]e must [therefore] decide whether [the trial court‘s] conclusions are legally and logically correct and find support in the facts that appear in the record. . . .
“In order to establish a prima facie case in a mortgage foreclosure action, the plaintiff must prove by a preponderance of the evidence that it is the owner of the note and mortgage, that the defendant mortgagor has defaulted on the note and that any conditions precedent
to foreclosure, as established by the note and mortgage, have been satisfied. . . . Thus, a court may properly grant summary judgment as to liability in a foreclosure action if the complaint and supporting affidavits establish an undisputed prima facie case and the defendant fails to assert any legally sufficient special defense. . . .
“[A] holder of a note is presumed to be the owner of the debt, and unless the presumption is rebutted, may foreclose the mortgage under [
“[T]he party raising a special defense has the burden of proving the facts alleged therein. . . . If the plaintiff in a foreclosure action has shown that it is entitled to foreclose, then the burden is on the defendant to produce evidence supporting its special defenses in order to create a genuine issue of material fact. . . . Legally sufficient special defenses alone do not meet the defendant‘s burden. The purpose of a special defense is to plead facts that are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action. . . . Further . . . [t]he applicable rule regarding the material facts to be considered on a motion for summary judgment is that the facts at issue are those alleged in the pleadings. . . . [B]ecause any valid special defense raised by the defendant ultimately would prevent the court from rendering judgment for the plaintiff, a motion for summary judgment should be denied when any [special] defense presents significant fact issues that should be tried.” (Citations omitted; internal quotation marks omitted.) U.S. Bank National Assn. v. Eichten, 184 Conn. App. 727, 743-45, 196 A.3d 328 (2018).
I
The defendant claims that this foreclosure action is barred by the statute of limitations set forth in
“Whether a particular action is barred by the statute of limitations is a question of law to which we apply a plenary standard of review.” Federal Deposit Ins. Corp. v. Owen, 88 Conn. App. 806, 814, 873 A.2d 1003, cert. denied, 275 Conn. 902, 882 A.2d 670 (2005). “[T]he rule in Connecticut, as far back as the early nineteenth cen-
tury, is that a statute of limitations does not bar a mortgage foreclosure. . . . Repeatedly reaffirmed and generally known, it has taken on the aspect of a rule of property and in all probability many mortgages in this [s]tate are now held, after any action upon the debt secured has been barred, in reliance upon it. . . . The rule is in harmony with the accepted principle that the statute of limitations does not destroy the debt but merely bars the remedy.” (Citation omitted; internal quotation marks omitted.) Id., 815.
Furthermore, in New Milford Savings Bank, our Supreme Court held that “upon the default of the mortgagor, the mortgagee has multiple remedies against both the mortgagor and the mortgaged property. The plaintiff is entitled to pursue its remedy at law on the notes, or to pursue its remedy in equity upon the mortgage, or to pursue both. A note and a mortgage given to secure it are separate instruments, executed for different purposes and, in this [s]tate, action for foreclosure of the mortgage and upon the note are regarded and treated, in practice, as separate and distinct causes of action, although both may be pursued in a foreclosure suit.” (Emphasis added; internal quotation marks omitted.) New Milford Savings Bank v. Jajer, 244 Conn. 251, 266-67, 708 A.2d 1378 (1998).
On appeal, the defendant argues that “[t]he note evidencing the underlying debt and the mortgage that secures the note are inextricably linked. The mortgage only secures the note—[it is] not a debt unto itself. It is only the note, not the mortgage, that can be accelerated. . . . If the statute of limitations expires and the note becomes unenforceable, the mortgage securing that note also becomes unenforceable. The mortgage simply does not exist . . . without the note which it secures.” Simply put, the defendant‘s argument directly contradicts Connecticut law as set forth in Federal Deposit Ins. Corp. v. Owen, supra, 88 Conn. App. 815, in which this court held, among other things, that
II
Relying on U.S. Bank National Assn. v. Blowers, 332 Conn. 656, 212 A.3d 226 (2019), the defendant next claims that the trial court should not have rendered summary judgment as to liability only in favor of the
plaintiff because the trial court failed to consider his fifth special defense.7
By way of background, in his answer and special defenses, the defendant alleged, relevant to this claim on appeal, that “[the] plaintiff has violated the mediator‘s instructions and has not participated in the mediation in good faith. The plaintiff was supposed to provide me with an accurate appraisal and never gave me accurate information.” In its motion for summary judgment, the plaintiff argued, among other things, that the defendant‘s fifth special defense failed as a matter of law because it neither was legally sufficient nor did it address the making, validity, or enforcement of the mortgage. In opposition to the plaintiff‘s motion for summary judgment, the defendant filed an objection “under oath,” in which he stated: “The [p]laintiff did not participate in the mediation in ‘good faith.’ It did not provide information about the appraisal [it] supposedly obtained and [it] also made [a] ridiculous offer that would have required me to make a lump sum payment in the amount [of] hundreds of thousands of dollars.” The trial court rejected the viability of the defendant‘s fifth special defense, among others, stating that “[t]o the extent that [the] defendant‘s purported special defenses are able to be construed as even constituting special defenses, none [goes] to the making, validity or enforcement of [the] note and/or [the] mortgage. The ‘affidavit’ of the defendant provides zero evidence, rather conclusory statements, at best.”
As an initial matter, on appeal, the defendant relies on the mediator‘s final report in support of his claim. The record reveals, however, that neither party submitted this report to the trial court.8 In this connection, it is well settled that “[w]e . . . do not consider evidence not presented to the trial court.” U.S. Bank National Assn. v. Eichten, supra, 184 Conn. App. 756. In addition, to the extent the defendant argues that the trial court refused to consider his “testimony” at the summary judgment hearing, we note that, even if the defendant‘s statements to the trial court had been under oath, they would not have properly been considered by the trial court as a part of the defendant‘s evidentiary submission. See Wells Fargo Bank, N.A. v. Ferraro, 194 Conn. App. 467, 470, 221 A.3d 520 (2019) (reversing summary judgment on basis that “the trial court improperly permitted, considered and relied on live testimony from witnesses at an evidentiary hearing on the plaintiff‘s motion for summary judgment“); Magee Avenue, LLC v. Lima Ceramic Tile, LLC, 183 Conn. App. 575, 585-86, 193 A.3d 700 (2018) (concluding that trial court improp-
erly permitted and considered defendant‘s live testimony during hearing on motion for summary judgment).
Simply put, the defendant‘s allegations and evidentiary submission were insufficient to fall within our Supreme Court‘s clarification of the making, validity, or enforcement test, as set forth in U.S. Bank National Assn. v. Blowers, supra, 332 Conn. 675, namely, that “allegations that the mortgagee has engaged in conduct that wrongly and substantially increased the mortgagor‘s overall indebtedness, caused the mortgagor to incur costs that impeded the mortgagor from curing the default, or reneged upon modifications are the types of misconduct
The judgment is affirmed and the case is remanded for the purpose of setting new law days.
the admissibility of such a document.
Notes
Additionally, the defendant argues for the first time on appeal that the foreclosure action is barred by the doctrine of laches. The defense of laches was neither pleaded nor raised in the trial court. Accordingly, we decline to review this particular claim. See Peckheiser v. Tarone, 186 Conn. 53, 61, 438 A.2d 1192 (1982).