Wells Fargo Bank Minn., N.A. v. Russo

• Decision Date: 18 February 2014
• Docket Number: No. 35354.,35354.
• Citation: 84 A.3d 1204,148 Conn.App. 302
• Court: Connecticut Court of Appeals
• Parties: WELLS FARGO BANK MINNESOTA, N.A. v. Steven RUSSO et al.

148 Conn.App. 302

84 A.3d 1204

WELLS FARGO BANK MINNESOTA, N.A.

v.Steven RUSSO et al.

No. 35354.

Appellate Court of Connecticut.

Argued Dec. 10, 2013.

Decided Feb. 18, 2014.

Steven Russo, self-represented, the appellant (named defendant).

Marissa I. Delinks, with whom, on the brief, were Valerie N. Doble and Martha Croog, Hartford, for the appellee (plaintiff).

GRUENDEL, LAVINE and PELLEGRINO, Js.

PER CURIAM.

In this foreclosure action, the self-represented defendant Steven Russo ¹ appeals from the judgment of the trial court granting the motion of the plaintiff, Wells Fargo Bank, N.A.,² to open a judgment of foreclosure by sale and denying his motion to open that judgment. He claims that the court abused its discretion in so doing. We affirm the judgment of the trial court.

The relevant facts are largely undisputed. On September 15, 2003, the defendant and his wife executed a promissory note in favor of the plaintiff's predecessor in interest in the principal amount of $288,750, which was secured by a mortgage on real property known as 71 Kingsbridge in Avon (property). When they defaulted on their obligations thereunder, a foreclosure action commenced in the summer of 2004. After a default judgment entered against them for failure to plead, the court rendered the first of multiple judgments of foreclosure by sale on December 12, 2005.

On November 11, 2008, the defendant and his wife entered into a loan modification agreement with American Home Mortgage Servicing, Inc., the plaintiff's loan servicer, regarding the note and mortgage on the property. That agreement provided, inter alia, that (1) the outstanding arrearage on the loan would be added to the principal balance, (2) the defendant and his wife would be permitted to make interest only payments for a period of five years, (3) the interest rate on those payments would be reduced from the existing rate of 7.5 percent to a fixed rate of 5 percent for that five year period, and (5) no fees would be assessed against them to complete the loan modification. Pursuant to “Schedule A” of that agreement, which the defendant and his wife initialed, the new principal balance as of October 1, 2008, was $335,360.30.

In July, 2010, the court entered an order returning the plaintiff's foreclosure action to pleading status, and the defendant filed an answer and a special defense. The plaintiff subsequently filed a motion for summary judgment as to liability, which the court granted. The court further denied the defendant's motion for reargument and reconsideration, as well as two motions to dismiss. The plaintiff then filed a motion for a judgment of foreclosure ³ and the court, on July 18, 2011, rendered a judgment of foreclosure by sale. From that judgment, the defendant appealed to this court, which affirmed said judgment. Wells Fargo Bank Minnesota, N.A. v. Russo, 135 Conn.App. 903, 41 A.3d 1208, cert. denied, 306 Conn. 901, 52 A.3d 728 (2012). This court thus remanded the matter to the trial court “for the purpose of setting a new sale date.” Id.

On September 12, 2012, this court summarily dismissed a second appeal filed by the defendant in the present case; he did not seek reconsideration of that ruling. On October 16, 2012, the plaintiff filed a motion to open and reenter the July 18, 2011 judgment of foreclosure in light of the foregoing proceedings. In response, the defendant on December 5, 2012, filed a motion to open and set aside the judgment of foreclosure “to allow [him] to motion the court for the opportunity to receive foreclosure mediation.” At that time, the defendant also filed with the court a foreclosure mediation request. In an order issued on January 2, 2013, the court denied the defendant's motion. The court further granted the plaintiff's motion to open and reenter the judgment of foreclosure, setting a new sale date of March 23, 2013, and noting that “all other terms of the prior judgment remain in effect.”

The defendant now appeals from those determinations, claiming principally that the court improperly granted the plaintiff's motion to open and improperly denied his motion to open the judgment of foreclosure by sale. It is well established that “[a] motion to open and vacate a judgment ... is addressed to the [trial] court's discretion, and the action of the trial court will not be disturbed on appeal unless it acted unreasonably and in clear abuse of its discretion.... In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of its action.... The manner in which [this] discretion is exercised will not be disturbed so long as the court could reasonably conclude as it did.” (Citations omitted; internal quotation marks omitted.) Walton v. New Hartford, 223 Conn. 155, 169–70, 612 A.2d 1153 (1992); see also Union Trust Co. v. Roth, 58 Conn.App. 481, 481, 755 A.2d 239 (2000) (“[w]hether to grant a motion to open [a judgment of foreclosure by sale] rests in the discretion of the trial court”).

The defendant contends that the court improperly granted ...