Bank of Am., N.A. v. Kydes

• Decision Date: 17 July 2018
• Docket Number: AC 39350
• Citation: 193 A.3d 110,183 Conn.App. 479
• Court: Connecticut Court of Appeals
• Parties: BANK OF AMERICA, N.A. v. Andrew D. KYDES

183 Conn.App. 479

193 A.3d 110

BANK OF AMERICA, N.A.

v.Andrew D. KYDES

AC 39350

Appellate Court of Connecticut.

Argued May 23, 2018

Officially released July 17, 2018

Hugh D. Hughes, New Haven, for the appellant (defendant).

Jeffrey M. Knickerbocker, for the appellee (substitute plaintiff).

Alvord, Sheldon and Bear, Js.

SHELDON, J.

The defendant, Andrew D. Kydes, appeals from the judgment of strict foreclosure rendered by the trial court in favor of the substitute plaintiff, Christiana Trust, a Division of Wilmington Savings Fund Society, FSB Not in Its Individual Capacity but as Trustee of ARLP Trust 5 (Christiana Trust).¹ On appeal, the defendant claims that the trial court erred: (1) in relying upon a "procedural default" to find that the named plaintiff, Bank of America, N.A. (Bank of America), had standing to bring the instant action, and thus that the court had subject matter jurisdiction over the action; and (2) in failing to hold an evidentiary hearing on his claim that Bank of America lacked standing to bring this action. We disagree, and thus affirm the judgment of the trial court.

The following procedural history is relevant to the defendant's claims on appeal. In 2012, Bank of America commenced this action against the defendant. On March 13, 2014, the defendant filed an answer and several special defenses, including the special defense alleging that Bank of America "has made false and fictitious claims without any supporting admissible evidence," and thus that it lacked standing to bring this action.

On March 13, 2015, the defendant filed a motion to dismiss this action on the ground, inter alia, that Bank of America lacked standing to bring it. On April 29, 2015, the court denied the motion to dismiss because the defendant failed to appear on the date the motion was scheduled for argument.²

On May 14, 2015, Bank of America served the defendant with requests for admission pursuant to Practice Book § 13-22, in which it asked the defendant to admit, inter alia, that Bank of America was the holder of the underlying promissory note when this action was commenced and that the defendant had defaulted on his obligation to make payments to it under the note. On June 4, 2015, the defendant, without answering or objecting to the requests for admission, filed a motion for a protective order, pursuant to Practice Book § 13-5, in which he asserted that the plaintiff's requests for admission, in their entirety, were "fraudulent" and "made in bad faith ... as a perpetuation of systematic unfair and deceptive practices." He further asserted that the "requests for admission and its content is outside of the scope of allowable discovery, and seeks an admission of facts which are known by [the] plaintiff to be false." On June 5, 2015, Bank of America filed an objection to the defendant's motion for a protective order.

On June 19, 2015, the defendant filed a corrected motion for a protective order concerning several additional discovery requests that Bank of America had directed to him. On July 17, 2015, the court sustained Bank of America's objection to the defendant's original motion for a protective order and summarily denied his corrected motion for a protective order.

On July 29, 2015, Bank of America filed a "Notice of Intent to Rely on [the] Requests to Admit," in which it asserted that the defendant's failure to respond to its requests for admission had resulted in his admission of all matters as to which admissions had been requested pursuant to Practice Book § 13-23 (a).³ On July 31, 2015, more than six weeks after the thirty day period within which the defendant was required to answer or object to the requests for admission pursuant to Practice Book § 13-23 (a) had expired, the defendant finally responded to such requests for admission, denying them all without limitation or qualification.

On July 31, 2015, Bank of America filed a motion for summary judgment as to liability only. Bank of America reiterated, in support of that motion, that by failing to answer or object to its requests for admission in the time required by law, the defendant had admitted all matters as to which admissions had been requested, which included all facts necessary to establish both its standing to bring this action and its right to prevail against the defendant. The defendant filed an objection to Bank of America's motion for summary judgment, claiming, inter alia, that the underlying note was fraudulent, that Bank of America had not been the holder of the note prior to the commencement of this action, and thus that it lacked standing to pursue this foreclosure action. The defendant filed no affidavits or other evidence in support of his standing challenge.

On September 8, 2015, the court held a hearing on the motion for summary judgment and the defendant's objection thereto. At the hearing, Bank of America argued that the defendant's failure to timely answer or object to its requests for admission had resulted in his admission, inter alia, that when Bank of America commenced this action, it was the holder of the underlying note, and that the defendant had defaulted on his obligation to make payments to it under the note. Bank of America, through its counsel, also presented to the court the original note. The defendant sought to have the hearing on the motion for summary judgment continued and requested an evidentiary hearing thereon. In support of that request, the defendant argued that an evidentiary hearing was necessary so that he might submit "[t]wo certified sealed depositions from entities in this case, who are admitting that they did not sign documents in other cases." When asked about his failure to timely answer or object to the plaintiff's requests for admission, the defendant argued that he had not been properly served with those requests because they had been served upon his counsel electronically. The court responded by observing that the defendant had not filed any motion asserting that the plaintiff's requests for admission had not been properly served. Because, moreover, notwithstanding the defendant's eleventh hour claim that the requests for admission had not been properly served upon him, he had previously moved for a protective order with respect to such requests and later denied them, the court ruled that he had waived his claim of improper service. The court finally noted that the defendant had not filed any motion "asking the court to be relieved from the failure to initially file responses to the request[s] for admission, [pursuant to Practice Book § 13-24 (a) ]⁴ and the time has passed." (Footnote added.) The court thereafter informed the parties that it would consider the motions on the papers.

On September 18, 2015, Bank of America filed a motion to substitute Christiana Trust as the party plaintiff, claiming that it had assigned the underlying mortgage to it. On October 2, 2015, the trial court summarily granted the motion to substitute.⁵

On December 30, 2015, the court issued the following order: "Having heard the plaintiff's motion for summary judgment ... the court finds that no genuine issue of material fact exists as to ... (i) the plaintiff's standing to prosecute this foreclosure action and (ii) the liability of the defendant ... on the note and mortgage. Accordingly, the plaintiff's motion for summary judgment as to liability only is hereby granted with respect to the defendant. A determination of the amount of indebtedness is deferred until such time as the plaintiff seeks a judgment of foreclosure. Practice Book §§ 17-44 through 17-51." On February 4, 2016, the defendant filed a motion to reargue, which the court denied on May 13, 2016, reasoning as follows: "The defendant ... has failed to demonstrate a controlling decision or principle of law that has been overlooked, a misapprehension of facts, inconsistencies in the court's order ... granting the plaintiff's motion for summary judgment as to liability on its complaint against the defendant ... or claims of law that were not addressed; rather, the defendant improperly seeks to have a ‘second bite of the apple’ under the guise of a motion for reconsideration."

On March 24, 2016, Christiana Trust filed a motion for judgment of strict foreclosure. An evidentiary hearing on the motion was held on June 15, 2016. At that hearing, the defendant repeatedly attempted to reargue the motion for summary judgment, but not on the ground that Christiana Trust lacked standing. Instead, the defendant argued that Christiana Trust did not have a valid lien against him. The court repeatedly reminded the defendant at the hearing that his argument was improper because it had already ruled that Bank of America had standing to pursue its foreclosure claim against him and that he was liable to Christiana Trust on the underlying note. Later that same day, the court rendered a judgment of strict foreclosure, determined the amount of the debt and set the law day for July 19, 2016. This appeal followed.

On appeal, the defendant claims that the trial court erred in relying upon a "procedural default" as the basis for finding that Bank of America had standing to bring the instant action against him, and in failing to hold an evidentiary hearing on his challenge to Christiana Trust's standing.

"Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy.... [When] a party is found to lack standing, the court is consequently without subject matter jurisdiction to determine the...