Wells Fargo Bank, N.A. v. Caldrello
| Decision Date | 05 January 2016 |
| Docket Number | CV126014902S |
| Court | Connecticut Superior Court |
| Parties | Wells Fargo Bank, N.A. v. Sandra Caldrello |
UNPUBLISHED OPINION
The plaintiff, Wells Fargo Bank, N.A., has filed a motion to strike the defendant, Sandra Caldrello's, revised counterclaims, asserting that all thirty-two counterclaims are legally insufficient. The defendant opposes this motion.
On September 18, 2012, the plaintiff commenced this foreclosure action via a single count complaint alleging the following facts. On February 9, 2007, the defendant secured a $480, 000 debt with World Savings Bank, FSB with a mortgage on 939 Pequot Avenue, New London, of which she is the owner of record and in possession. The plaintiff is the successor by merger to Wachovia Mortgage, FSB, formerly known as World Savings Bank, FSB. On May 2, 2012, the plaintiff became entitled to collect the subject debt and enforce the subject mortgage, which are now both in default. There are no subsequent interests on the mortgaged property and the only encumbrance thereon is outstanding taxes due to the City of New London.
On May 20, 2015, the defendant filed her revised counterclaims.[1] On August 4, 2015, the plaintiff filed its motion to strike the defendant's revised counterclaims on the ground that all thirty-two counterclaims alleged therein are legally insufficient and therefore should be stricken. The plaintiff submitted a memorandum of law in support of its motion and, on October 5, 2015, the defendant filed a memorandum in opposition to the motion.[2]
This court has reviewed the defendant's revised counterclaims as well as the memoranda in support and in opposition to the plaintiff's motion to strike. While the court does not address each argument in the extensive pleadings individually, failure to do so does not indicate a lack of consideration.
" The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). " A motion to strike tests the legal sufficiency of a cause of action and may properly be used to challenge the sufficiency of a counterclaim." Fairfield Lease Corp. v. Romano's Auto Service 4 Conn.App. 495, 496, 495 A.2d 286 (1985); see also Practice Book § 10-39(a)(5).
" It is fundamental that in determining the sufficiency of a [pleading] challenged by a [party's] motion to strike all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted . . . Indeed pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006). The challenged pleading must be construed " in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) New London County Mutual Ins. Co. v. Nantes, 303 Conn. 737, 747, 36 A.3d 224 (2012). " [I]f facts provable in the [pleading] would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007).
In its memorandum in support of its motion to strike, the plaintiff argues that almost all of the defendant's counterclaims are legally insufficient based on three legal principles: (1) the defendant has not met the fact pleading standard required by the Practice Book; (2) the statute of limitations has expired on many of the defendant's claims; and (3) many of the defendant's claims are improper because they do not relate to the making, validity, or enforcement of the subject note. In addition, it argues that many of the counterclaims fail to state a claim upon which relief can be granted.
In response, the defendant opposes the plaintiff's argument that her counterclaims are legally insufficient. The defendant's predominant argument for legal sufficiency, which is referenced throughout her memorandum, is that the plaintiff lacks standing to bring the underlying action against the defendant because the plaintiff does not own the subject note, the defendant was not aware of the sale of the note to the plaintiff, and the plaintiff fraudulently concealed documentation as to the note's true owner. Another prominent argument in the defendant's memorandum is that the plaintiff breached its contract with the defendant by changing the terms of the open-ended deferred interest pick-a-pay mortgage and by accelerating the note before the defendant reached the maximum aggregate principal balance. Further, the defendant argues that the plaintiff has engaged in a predatory and continuing course of conduct, which includes such acts as committing fraud; coming to this action with unclean hands; providing false documentation to the court; conspiring against the defendant; misappropriating funds; and failing to prove ownership of the loan; failing to act in good faith; failing to disclose information; and failing to cooperate with the defendant.
While the plaintiff's lack of standing to foreclose is a theme throughout the defendant's counterclaims, counterclaim six explicitly alleges that the subject loan was sold and that the plaintiff has not proven ownership of the loan therefore, it lacks standing to foreclose. Further, the plaintiff alleges that the defendant is under the Pool Servicing Agreement and is not the actual owner. The plaintiff argues that counterclaim six should be stricken pursuant to the law of the case doctrine because the court denied the defendant's motion to dismiss on March 23, 2015, after the plaintiff produced the original note for the court's and the defendant's inspections and the court concluded that the plaintiff had standing to invoke the jurisdiction of the court. Further, there are no new or overriding circumstances that would lead to a determination that the plaintiff lacks standing. In response, the defendant argues that the plaintiff duped the court into believing it had standing by presenting the note. Further, she argues that there was not an assignment of the note itself that the sale of the note was concealed from the defendant; and that the defendant could not use the sale information in her motion to dismiss because the plaintiff concealed ownership of the note from her.
(Internal quotation marks omitted.) Bysiewicz v. DiNardo, 298 Conn. 748, 758, 6 A.3d 726 (2010). " Where a party is found to lack standing, the court is consequently without subject matter jurisdiction to determine the cause." (Internal quotation marks omitted.) Monroe v. Horwitch, 215 Conn. 469, 473, 576 A.2d 1280 (1990). Ultimately, it is the plaintiff's burden to prove standing. Wells Fargo Bank N.A. v. Strong, 149 Conn.App. 384, 398, 89 A.3d 392, cert. denied, 312 Conn. 923, 94 A.3d 1202 (2014).
" [General Statutes § ]49-17 codifies the well established common-law principle that the mortgage follows the note, pursuant to which only the rightful owner of the note has the right to enforce the mortgage." RMS Residential Properties, LLC v. Miller, 303 Conn. 224, 230, 32 A.3d 307 (2011). " In order to establish a prima facie case in a mortgage foreclosure action, the plaintiff must prove by a preponderance of the evidence that it is the owner of the note and mortgage, that the defendant mortgagor has defaulted on the note and that any conditions precedent to foreclosure, as established by the note and mortgage, have been satisfied." (Internal quotation marks omitted.) Wells Fargo Bank N.A. v. Strong, supra, 149 Conn.App. 392. " Being the holder of a note satisfies the plaintiff's burden of demonstrating that it is the owner of the note because under our law, the note holder is presumed to be the owner of the debt, and unless the presumption is rebutted, may foreclose the mortgage under § 49-17." (Internal quotation marks omitted.) American Home Mortgage Servicing, Inc. v. Reilly, 157 Conn.App. 127, 133, 117 A.3d 500, cert. denied, 317 Conn. 915, 117 A.3d 854 (2015).
" [The law of the case] doctrine refers to the binding effect of a court's prior ruling in the same case." (Internal quotation marks omitted.) Bowman v. Jack's Auto Sales, 54 Conn.App. 289, 292-93, 734 A.2d 1036 (1999). " The law of the case is not written in stone but is a flexible principle of many facets adaptable to the exigencies of the different situations in which it may be invoked . . . In essence it expresses the practice of judges generally to refuse to reopen what has been decided and is not a limitation on their power." (Citation omitted.) Breen v. Phelps, 186 Conn. 86, 99, 439 A.2d 1066 (1982). " Where a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance." Id. " The general rule is that the denial of a motion to dismiss is an interlocutory ruling . . ." (Internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 645 n.5, 974 A.2d 669 (2009).
On March 23, 2015, this court ruled that the plaintiff had standing to...
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