The Bank of N.Y. v. Bell, CV–07–5013037–S.

Citation51 Conn. L. Rptr. 862,23 A.3d 121,52 Conn.Supp. 32
Decision Date02 May 2011
Docket NumberNo. CV–07–5013037–S.,CV–07–5013037–S.
PartiesThe BANK OF NEW YORK, as Trustee (BS ALT A 2005–9)v.Sonja V. BELL et al.
CourtSuperior Court of Connecticut

OPINION TEXT STARTS HERE

Geoffrey K. Milne, Hartford, James T. Shearin and Steven J. Stafstrom, Jr., Bridgeport, for the plaintiff.J. Hanson Guest, for the named defendant.ROBERT SATTER, Judge Trial Referee.

The defendant Sonja V. Bell moves, pursuant to General Statutes § 42–150bb,1 for an award of legal fees against the plaintiff, The Bank of New York, as trustee of BS ALT A 2005–9, which has withdrawn this foreclosure action.

The facts are that the plaintiff initiated a foreclosure action on a mortgage upon the home of the defendant in September, 2007, alleging that it held the mortgage and note by virtue of a transfer of the corporate trust assets of JP Morgan Chase Bank to the plaintiff, The Bank of New York. The note was not endorsed to the plaintiff. The plaintiff obtained a summary judgment against the defendant on liability only and a judgment of foreclosure. Before the law day, the defendant filed a motion to dismiss, claiming that the plaintiff lacked standing. The court set down the motion for an evidentiary hearing. The next three years were consumed with discovery in the course of which this court held the plaintiff in contempt three times for its failure to comply with discovery requests.2 The defendant has put up a vigorous fight, attacking the plaintiff's standing. She has questioned the sufficiency and time of execution of many of the documents upon which the plaintiff relies to establish standing.

By January, 2010, the plaintiff recognized that the motion to dismiss might be litigated for months more and might also implicate the merits of the case, so a ruling for the defendant could determine the entire outcome of the action. On January 8 and January 15, 2010, the plaintiff applied to withdraw the case automatically, pursuant to General Statutes § 52–80.3 The defendant objected to the plaintiff's withdrawal. The court expressed in open court several times that since a judgment had been entered against the defendant, it constituted a hearing on issues of fact and, as the result, a hearing had to be held on whether there was cause for the withdrawal.

Shortly afterward, the plaintiff moved to remove this action to the federal District Court. This court was stayed to act as a consequence of the motion for removal. In March, 2010, the federal District Court denied the plaintiff's removal motion. Then the plaintiff sought to transfer the case to the complex litigation docket. That motion was denied in the late summer of 2010. All this time, litigation on discovery continued.

The court set a date to hear all pending motions on October 4, 2010. The parties indicated they needed more time for discovery, and the court reset the date for hearing all motions to December 4, 2010. The first motion heard was the plaintiffs application to withdraw.

The court noted the protracted litigation over the defendant's motion to dismiss and concluded it would drag on for several months more without a determination of the merits of the case. And further, the plaintiff could bring a second foreclosure action based on JP Morgan Chase's endorsing the note to the plaintiff and so avoid the massive transaction between JP Morgan Chase and the plaintiff. Consequently, it found cause for withdrawal based upon judicial economy.

After that decision was rendered, the defendant moved for counsel fees based on § 42–150bb.

At the outset, it is appropriate to recognize the purpose of the statute. When the bill was debated on the floor of the Senate, Senator Salvatore C. DePiano stated: “This bill would require that in a specified situation attorney's fees be awarded to a consumer who successfully brings or defends an action based upon a contract or lease whenever such contract or lease provides for the attorney's fees of a commercial party....” 22 S. Proc., Pt. 13, 1979 Sess., p. 4275.

State Representative Richard D. Tulisano stated on the floor of the House of Representatives that the statute was now “self-enforcing” in that contractual attorney's fee provisions would be reciprocal. 22 H.R. Proc, Pt. 22, 1979 Sess., p. 7487. He stated: [T]he legislation before us today provides [for] the first time the ability for consumers in this state to obtain attorney's fees, [in a] reasonable amount, as a result of defending or prosecuting any action in which the commercial party has provided for attorney's fees for their own behalf. What this does is give some equity to the situation. At the present time, many form contracts include attorney's fees provisions for the commercial party, and even though ... that party may be wrong and a consumer successfully defends an action against him, or her, they would not be entitled to receive attorney's fees in defending that action. This will put some equity in the situation to the same extent that any commercial party will receive.” Id., at p. 7489.

Turning to the language of the statute, it is clear that the defendant is a debtor and so consumer, that the plaintiff is a creditor and so commercial party, and that the mortgage which the plaintiff attempts to foreclose upon is a contract. The mortgage note, at paragraph 7(E), provides that the noteholder has the right to be paid back all its costs and expenses in enforcing this note, including “reasonable attorney's fees.” The subject mortgage, at paragraph 14, provides that the lender may charge the borrower fees for services performed in protecting the lender's interest in the property rights under the mortgage, “including, but not limited, to attorney's fees....”

The remaining issues under the statute are: (1) is the note and mortgage a contract “in which the money, property or service which is the subject of the transaction ... primarily for personal, family or household purposes”; General Statutes § 42–150bb; and (2) has the defendant successfully defended the action based on the mortgage.

Our courts have recognized that the issue of whether the contract falls within the purview of the statute must be resolved first Tyler E. Lyman, Inc. v. Lodrini, 78 Conn.App. 582, 589, 828 A.2d 676 (2003).

Numerous cases have held that mortgage on property of the homeowner is “for personal, family or household purposes.” General Statutes § 42–150bb. As the court stated in Burleigh v. Norwood Federal Savings & Loan Assn., 669 F.Supp. 48, 50 (D.Conn.1987), “The mortgage documents are within the statute and their inclusion is dictated by the purpose of the statute.” Likewise, in Retained Realty, Inc. v. McCabe, 376 Fed.Appx. 52, 57–58 (2d Cir.2010) the court said, Plaintiff contests the district court's finding that the mortgage at issue in this litigation was primarily for personal, family, or household purposes.... We therefore hold that the district court did not commit clear error in finding that the property served a personal, family or household purpose.” (Citations omitted.)

Likewise, in State Street Bank & Trust Co. v. Knight, Superior Court, judicial district of Tolland, Docket No. CV–03–0080718, 2003 WL 22133297 (August 26, 2003) ( Scholl, J.), a case completely on all fours with this case, the court held that where a defendant successfully defended a mortgage foreclosure action, the defendant was entitled to attorney's fees pursuant to § 42–150bb.

The plaintiff argues that because § 42–150bb does not define what “primarily for personal, family or household purposes” means, we should look to how the court has construed General Statutes § 42–150aa containing similar language. The plaintiff cites to Liapes v. Beaulieu, 18 Conn.App. 329, 557 A.2d 934 (1989), in which the plaintiff creditor sued on a promissory note in the amount of $30,000. Following the sale of real estate by the plaintiff to the defendant, the defendant signed the note and the mortgage deed, but the plaintiff failed to record the deed in the land records. The defendant paid the plaintiff the principal balance, interest and costs but did not pay attorney's fees. The plaintiff filed a substituted complaint for attorney's fees. The trial court awarded $4500 (15 percent of $30,000). On articulation, the court said that the award was based upon § 42–150aa, which provides in subsection (b) that the creditor's attorney's fees should not be more than 15 percent. In construing that section, the Appellate Court referred to General Statutes § 42–151 for the definition of a consumer contract. That statute defines a consumer contract as one in which the consumer borrows up to $25,000 or agrees to pay up to $25,000 to buy or lease personal property. The court held that since the parties in the underlying transaction contemplated a mortgage on real property to secure payment of a loan in an amount exceeding $25,000, “no consumer contract or lease is involved in this case and that § 42–150aa did not apply. Id., at 331, 557 A.2d 934. The court did not consider whether the mortgage was on the home of the defendant and so never reached the issue of whether the transaction was “primarily for personal, family or household purposes.”

In Rizzo Pool Co. v. Del Grosso, 240 Conn. 58, 689 A.2d 1097 (1997), the Supreme Court, if not expressly, implicitly overruled Liapes as to where courts look for a definition of a consumer contract under § 42–150bb. The Supreme Court clearly held that when § 42–150bb is invoked, the court looks to a definition of consumer contract in that section in chapter 741d of the General Statutes and does not look to a definition at § 42–151 in chapter 742. The court said: Section 42–150bb provides it own definition of the type of contract for which attorney's fees may be recovered. It contains no reference to the following chapter and no suggestion that § 42–151 should apply. As indicated, the first sentence of § 42–151 expressly provides that the definitions...

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3 cases
  • Conn. Hous. Fin. Auth. v. Alfaro
    • United States
    • Supreme Court of Connecticut
    • January 26, 2018
    ...... defends," these cases provide no support for the defendant's position.Although the trial court in Bank of New York v. Bell , 52 Conn. Supp. 32, 39–40, 23 A.3d 121 (2011), analyzed the meaning of "successfully ... defends," the case is distinguishable from the present procedural 176 A.3d......
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    • Superior Court of Connecticut
    • November 29, 2017
    ...Allen, Inc., 26 Conn.App. 426, 601 A.2d 1040 (1992). These cases, however, are distinguishable from the instant action. In Fraser, Bank of New York and Bass Associates, Inc., the award of attorneys fees were all based on a contract or lease, the contractual exception. See, e.g., Fraser v. E......
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    • April 18, 2017
    ...to follow Ameriquest and Liapes in People's United Bank v. Wright, 2015 WL 4880142 *1 (Conn.Super. 2015) (Mottolese, J.T.R.) , and followed Bell in awarding attorneys under C.G.S. § 42-150bb in that mortgage foreclosure action. Many other superior courts have held that attorneys fees may be......

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