Pennymac Corp. v. Tarzia

• Docket Number: AC 44378
• Decision Date: 13 September 2022
• Citation: 215 Conn.App. 190,281 A.3d 469
• Parties: PENNYMAC CORP. v. Joseph TARZIA et al.
• Court: Connecticut Court of Appeals

215 Conn.App. 190

281 A.3d 469

PENNYMAC CORP.

v.Joseph TARZIA et al.

AC 44378

Appellate Court of Connecticut.

Argued December 9, 2021

Officially Released September 13, 2022

Alexander H. Schwartz, Southport, for the appellant (named defendant).

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

Prescott, Alexander and Suarez, Js.

ALEXANDER, J.

The defendant Joseph Tarzia appeals from the trial court's denial of his motion to open the judgment of strict foreclosure rendered in favor of the substitute plaintiff, Wilmington Trust National Association as Trustee for MFRA Trust 2015-1.¹ On appeal, the defendant claims that the court incorrectly determined that it had subject matter jurisdiction over this foreclosure action on the ground that the original plaintiff, Pennymac Corp. (Pennymac), complied with General Statutes § 8-265ee (a), the notice provision of the Emergency Mortgage Assistance Program (EMAP), General Statutes § 8-265cc et seq. We disagree and, accordingly, affirm the judgment of the trial court.

The following facts and procedural history are relevant to our disposition of this appeal. On May 31, 2017, Pennymac commenced this foreclosure action against the defendant. According to the complaint, on December 15, 2006, the defendant executed a promissory note in the amount of $1 million payable to the order of Washington Mutual Bank, FA, and secured by a mortgage on the property located at 70 Cranberry Road in Norwalk and Westport (property). The mortgage and the note eventually were assigned to Pennymac before it commenced this action.

On July 31, 2017, Pennymac filed an affidavit certifying that it had provided the defendant with the notice required by the EMAP.² In the affidavit, a paralegal employed by the plaintiff's counsel³ averred that, "based on [the] business records [of the plaintiff's counsel] and its regular business practices, [Pennymac] has complied with the [EMAP] by [the plaintiff's counsel] giving on April 19, 2016 to all mortgagors a notice containing the information required by said statute." Attached to the affidavit is a photocopy of an envelope addressed from the plaintiff's counsel to the defendant, depicting the certified mail barcode and corresponding certified mail number. Also attached to the affidavit is a letter, dated April 19, 2016, from the plaintiff's counsel to the defendant providing him, among other things, notice pursuant to the EMAP.

In April, 2018, Pennymac assigned the note and the mortgage to the plaintiff. On May 29, 2018, Pennymac filed a motion to substitute the plaintiff as the party plaintiff, which the court granted on June 18, 2018. On June 11, 2019, the plaintiff filed a motion for judgment of strict foreclosure. On January 13, 2020, the court rendered a judgment of strict foreclosure and set law days to commence on April 14, 2020. The court then issued a series of five orders opening the judgment of strict foreclosure and extending the commencement of law days until June 2, 2020, July 7, 2020, August 4, 2020, September 9, 2020, and finally to October 6, 2020. The defendant did not appeal from the January 13, 2020 judgment of strict foreclosure or any of the subsequent orders extending the law days.

On the October 6, 2020 law day, the defendant filed a motion to open the judgment of strict foreclosure. In his motion, the defendant asserted that the judgment of strict foreclosure must be opened "in order to permit him to pursue a motion to dismiss this action for [the] plaintiff's failure to comply with the [EMAP]." The defendant contemporaneously filed with his motion to open: (1) an October 6, 2020 affidavit by the defendant's counsel, Alexander H. Schwartz; and (2) an unsigned, unsworn report (report) authored by Peter Wade, a senior consultant for U.S. Postal Mail Fraud Investigations at Humatec, which is an expert witness consulting firm.

In his affidavit, the defendant's counsel avers that, on July 20, 2020, he retained Wade to provide an opinion as to whether the certified letter "prepared by" the plaintiff's counsel containing the EMAP notice "was delivered" to the defendant. The defendant's counsel describes Wade's qualifications as an individual with "decades of experience with the U.S. Postal Service [(USPS)] and Postal Inspection Service," with a specialization "in postal inspection polices and investigative methods and techniques." The defendant's counsel states that Wade previously served as the Assistant Regional Chief Postal Inspector for the Northeast Region, and Postmaster for the U.S. Virgin Islands and Puerto Rico. The defendant's counsel concluded his affidavit by stating that he received Wade's report on October 5, 2020, and that "a true copy of [the report] is attached hereto."

In the report, Wade opines that the certified mail letter from the plaintiff's counsel to the defendant containing the EMAP notice "has never been placed in the U.S. mail." To support this opinion, Wade states that "the USPS keeps track of the progress of certified mail from its initial induction at a mail processing center through to the final disposition of that letter." Wade then states that on October 4, 2020, he performed a tracking query on the USPS website for the certified mail number depicted on the envelope that the plaintiff's counsel attached to its July 31, 2017 affidavit of EMAP compliance. Wade states that this query revealed that the plaintiff's counsel had "created" a certified mail label, however, the certified mail letter "was not yet in the system. " (Emphasis in original.) Wade attached to his report a printout of the USPS website that reveals the result of his tracking query. This printout provides in relevant part: "[l]abel [c]reated, not yet in system" and that "[a] status update is not yet available on your package. It will be available when the shipper provides an update or the package is delivered to USPS."⁴

On October 8, 2020, the plaintiff filed an objection to the defendant's motion to open. Therein, the plaintiff contended that the July 31, 2017 affidavit of EMAP compliance established that the EMAP notice was provided to the defendant. The plaintiff argued that the EMAP compliance affidavit was filed on the docket three years ago and previously was uncontested by the defendant. The plaintiff also explained that the USPS provided the plaintiff's counsel with a receipt when it physically deposited the certified mail containing the EMAP notice with the USPS. The plaintiff attached this USPS receipt to its objection, which shows that, on April 19, 2016, the plaintiff's counsel deposited with the Farmington branch of the USPS a letter addressed to the defendant by certified mail return receipt requested. Each page of the USPS receipt is marked with a dated stamp from the Farmington branch of the USPS. The plaintiff finally argued that Wade's report is flawed because he could not have obtained tracking information for a certified mail letter sent more than four years prior to the creation of his report because the USPS online tracking system only retains records for two years. The plaintiff attached a printout from the USPS website evincing its data retention policy. On October 16, 2020, the plaintiff filed an amended objection to the defendant's motion to open, arguing that the motion was moot because title vested with the plaintiff after the October 6, 2020 law day passed.

On October 26, 2020, the defendant filed a reply memorandum in further support of his motion to open, to which he attached an October 20, 2020 affidavit by Wade. The defendant's reply reiterates the conclusions of Wade's affidavit in which he opines, without citation, that "[i]t is true that the [USPS] retains records of certified mail delivery for two years. However, the two year period of time commences from the end of the month in which that certified item was delivered to the addressee. Had this certified letter which was prepared for mailing on April 19, 2016, been delivered on or before September 20, 2018, there would be no record of that article in the [USPS] tracking system today. The fact that the data is available demonstrates that the item was not delivered." (Emphasis omitted.) The defendant further argued that his motion to open was not moot because he filed his motion to open on the law day, which imposed an automatic appellate stay tolling the law days until the expiration of the applicable appeal period.⁵

On October 29, 2020, the court, without holding a hearing, issued an order denying the defendant's motion to open. The court stated at the outset that it had "carefully reviewed and considered" the motion to open, the related filings, and all the exhibits attached thereto. The court determined that the motion to open was not moot because it was filed timely. The court then found that the plaintiff's evidence established that Pennymac provided the defendant with the EMAP notice. The court reasoned that "the plaintiff has shown in its own affidavit that it did send the required notice to the defendant, properly addressed, in the manner prescribed by the [EMAP]. It has provided a USPS receipt to that effect. ... Further, the defendant has not provided sufficient cause to [establish] that the notice was [not] mailed. The defendant's claim in the affidavits he has provided, that the notice never entered the USPS ‘mail stream,’ does not necessarily refute the evidence that the plaintiff did what the [EMAP] requires. And finally, the court gives little weight to the defendant's claims, especially given the context of the late and protracted stage of these proceedings." (Citation omitted.) This appeal followed.

On appeal, the defendant claims that the court incorrectly determined that it had subject matter jurisdiction over this foreclosure action on the ground that Pennymac provided the defendant with the required EMAP notice.⁶ The defendant narrowly argues that the court improperly credited the plaintiff's evidence and discredited...