U.S. Bank Nat'l Ass'n v. Sorrentino

• Decision Date: 23 June 2015
• Docket Number: No. 36462.,36462.
• Citation: 158 Conn.App. 84,118 A.3d 607
• Court: Connecticut Court of Appeals
• Parties: U.S. BANK NATIONAL ASSOCIATION, Trustee v. Glynnis SORRENTINO et al.

158 Conn.App. 84

118 A.3d 607

U.S. BANK NATIONAL ASSOCIATION, Trustee

v.Glynnis SORRENTINO et al.

No. 36462.

Appellate Court of Connecticut.

Argued Feb. 11, 2015.

Decided June 23, 2015.

Hugh D. Hughes, New Haven, with whom, on the brief, was John J. Carta, Jr., Essex, for the appellants (defendants).

Geraldine A. Cheverko, for the appellee (plaintiff).

ALVORD, PRESCOTT and PELLEGRINO, Js.

Opinion

PRESCOTT, J.

In this mortgage foreclosure action, the defendants, Glynnis Sorrentino and Gallery at 85 Main, LLC, appeal from the summary judgment on their counterclaims rendered in favor of the plaintiff, U.S. Bank National Association, as Trustee for J.P. Morgan Mortgage Acquisition Trust 2006–CH1, Asset Backed Pass–Through Certificates, Series 2006–CH1.¹

The defendants claim that the court improperly granted the plaintiff's motion for summary judgment with respect to four of their five counterclaims because the affidavit and other evidence submitted in support of the motion for summary judgment failed to address the factual allegations underlying those counterclaims and, thus, did not demonstrate a lack of a genuine issue of material fact.² The plaintiff argues on appeal, however, that the factual allegations in the counterclaims relate to activities that postdate the origination of the loan, the defendant's default and the plaintiff's commencement of this foreclosure action, and that, because they do not relate to the making, validity or enforcement of the mortgage, they fail as a matter of law. We agree with the plaintiff and, accordingly, affirm the judgment of the trial court.

The record reveals the following undisputed facts and procedural history. In February, 2006, Sorrentino executed a note in favor of Chase Bank USA, N.A., in the principle amount of $380,000. At the same time, to secure that note, Sorrentino executed a mortgage in favor of Chase Bank USA, N.A., on property located at 85 Main Street in Essex. In April, 2007, Sorrentino, by way of a quit claim deed, transferred her interest in the 85 Main Street property to Gallery at 85 Main, LLC, a limited liability company with Sorrentino as its sole member.

In June, 2009, the plaintiff filed the present action, alleging that the note was in default and seeking to foreclose the mortgage.³ On October 12, 2010, the court referred the parties to the foreclosure mediation program. See General Statutes §§ 49–31l through 49–31o. On May 3, 2012, the foreclosure mediator issued a final report indicating that the parties were unable to reach any agreement and referring the matter back to the court. The defendants filed an answer to the foreclosure complaint on May 28, 2013, which included eleven special defenses and five counterclaims.

Counterclaims one, two, four, and five, which sounded respectively in equitable estoppel, breach of the covenant of good faith and fair dealing, unclean hands, and fraud, were all premised on a common set of factual allegations that alleged improper conduct by the plaintiff during the foreclosure mediation proceedings. Specifically, each of those four counterclaims incorporated by reference the following eight paragraphs:

“1. Subsequent to the filing of the instant action, plaintiff and defendants engaged in a court annexed mediation program.

“2. Pursuant to the mediation process, defendants provided to plaintiff, on a regular basis, each and every document requested by plaintiff.

“3. The plaintiff conducted the mediation process in a manner calculated effectively to ensure that the subject loan would not qualify for modification. During this process, plaintiff continually requested documents which had already been provided; regularly claimed to have lost or misplaced documents; professed to not understand the sources and amounts of income despite repeated, good faith, efforts on the part of defendants to provide this information to plaintiff. Plaintiff, on a regular basis, assured defendants that ... they would qualify for a modification, and that ‘we want you to stay in your home and keep your home’ when, in fact, plaintiff knew that the chances for a modification were negligible.

“4. Plaintiff, either intentionally or negligently, delayed the mediation process, which resulted in the defendants accruing an exorbitant reinstatement arrearage, which made it impossible for defendants to even consider reinstating the loan with a lump sum payment.

“5. Plaintiff either negligently or intentionally strung this process along for over one year thereby rendering the possibilities of a modification nonexistent and the entire process a sham.

“6. Plaintiff explicitly and/or implicitly made certain representations to defendants upon which defendants relied; plaintiff knew or should have known that it was not prepared to offer a loan modification, but, nevertheless, continued to string defendants along, either expressly or impliedly representing that defendants would be eligible for a loan modification.

“7. At no point during the loan mediation process [were] defendant[s] advised that [they] would not qualify for a modification until [they were] so advised at the last mediation session.

“8. The undersigned was repeatedly assured by representatives of the plaintiff that all the documents were appropriately submitted and, in [their] opinion, this loan was eligible for modification; this occurred repeatedly during the mediation process leading defendants to believe that a loan modification was imminent.”

Counterclaim three, which, as previously discussed in footnote 2 of this opinion, alleged a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42–110a et seq., relied on an entirely distinct set of factual allegations. Rather than incorporating the previously quoted paragraphs, the CUTPA counterclaim alleged as follows: “The plaintiff failed to provide the defendants with a copy of their mortgage and loan in this transaction. The plaintiff failed to provide a HUD–1 or HUD–1 like statement for the disbursement of the loan funds. The failure to provide such statement handicapped the defendants from exercising their statutory right of rescission within three days and other deadlines. The failure to provide such a statement also kept them in a state of poor understanding of the obligations they had undertaken, resulting in their great distress, injury, and possible loss of hearth and home.” The defendants also alleged that the plaintiff had “engaged in a continuing course of conduct from the date of the closing [up] to and including the institution of this action.”

The plaintiff never moved to strike any of the counterclaims. On October 10, 2013, however, the plaintiff filed a motion for summary judgment and a memorandum of law in support of that motion. The plaintiff also submitted documentary evidence and an affidavit in support of its motion. With respect to the foreclosure complaint, the plaintiff sought an order granting summary judgment as to liability only. The plaintiff also challenged the propriety of the defendants' counterclaims and special defenses.

The defendants filed a memorandum in opposition to the motion for summary judgment as well as a supplemental memorandum, each of which focused almost exclusively on the issue of whether the plaintiff had standing to bring the foreclosure action and whether it had provided evidence supporting standing. The memoranda in opposition did not address the substance of the plaintiff's arguments regarding the legal sufficiency of the various counterclaims. The defendants filed no affidavits or any other evidence in support of their opposition to summary judgment.

On December 6, 2013, the court, Aurigemma, J., issued a memorandum of decision granting the plain-tiff's motion for summary judgment on the foreclosure complaint as to liability only, and also rendering summary judgment for the plaintiff on the defendants' counterclaims.⁴ With respect to the judgment rendered on the counterclaims, the court reasoned as follows: “The defendants' initial objection to the summary judgment does not address [their] special defenses or [their] counterclaims. [Their] supplemental objection mentions several Superior Court cases where special defenses similar to those [they have] alleged were not stricken. However, the court is not considering a motion to strike. In opposition to a motion for summary judgment, the defendants must present some concrete evidence to support [their] defenses and counterclaims.... [They have] failed to do so.... The defendants [have ] presented no evidence to support any of

[their ] arguments. ” (Emphasis in original.) This appeal followed.

The defendants claim on appeal that the court improperly granted the plaintiff's motion for summary judgment with respect to their counterclaims. The defendants argue that the affidavit and other documentary evidence submitted by the plaintiff in support of its motion for summary judgment were unresponsive to the factual allegations that they raised in their counterclaims, and that “the plaintiff only argued that the counterclaims were improperly joined because they did not relate to the making, validity or enforcement of the mortgage note or deed.” According to the defendants, the plaintiff failed to meet its initial burden of showing a lack of a genuine issue of material fact and that it was entitled to judgment as a matter of law, and, thus, contrary to the trial court's decision, they were not obligated to provide any evidentiary support with their opposition in order to avoid summary judgment.

It is important to clarify from the outset that, although the defendants' arguments in their brief on appeal are directed at all five of their counterclaims, the analysis in the brief is limited to the plaintiff's alleged failure to submit evidence in support of summary judgment with respect to the plaintiff's conduct during the foreclosure mediation program only. We therefore view the claim on appeal to be limited to a challenge to the court's...