Wells Fargo Bank, N.A. v. Fratarcangeli

• Decision Date: 27 August 2019
• Docket Number: AC 41593
• Citation: 192 Conn.App. 159,217 A.3d 649
• Court: Connecticut Court of Appeals
• Parties: WELLS FARGO BANK, N.A. v. Nicole M. FRATARCANGELI et al.

192 Conn.App. 159

217 A.3d 649

WELLS FARGO BANK, N.A.

v.Nicole M. FRATARCANGELI et al.

AC 41593

Appellate Court of Connecticut.

Argued March 18, 2019

Officially released August 27, 2019

Gary L. Seymour, Shelton, for the appellant (named defendant).

Todd H. Lampert, New Canaan, with whom, on the brief, was Arthur C. Zinn, for the appellee (substitute plaintiff).

DiPentima, C. J., and Moll and Norcott, Js.

MOLL, J.

The defendant, Nicole M. Fratarcangeli,¹ appeals from the judgment of strict foreclosure rendered after a court trial in favor of the substitute plaintiff, MTGLQ Investors, LP. On appeal, the defendant claims that the court erred when it granted the substitute plaintiff's motion to strike as to her first and second special defenses of (1) illegal attestation of the mortgage deed and (2) unclean hands as to the attestation of the mortgage deed. We disagree and, accordingly, affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the defendant's claims. In its complaint, the original plaintiff, Wells Fargo Bank, N.A., alleged the following relevant facts. On March 21, 2005, the defendant executed a promissory note, in the principal amount of $535,000, in favor of World Savings Bank, FSB (World Savings Bank). The note was secured by a mortgage executed by the defendant on real property located at 370 Wilson Road in Easton. On April 4, 2005, the mortgage deed was recorded on the Easton land records. Thereafter, the original plaintiff acquired Wachovia Mortgage, FSB, formerly known as World Savings Bank. Beginning in July, 2009, and each and every month thereafter, the defendant failed to make payments on the note. On or before April 21, 2015, the original plaintiff became the party entitled to collect the debt evidenced by the note and to enforce the mortgage. In connection with the defendant's default on the note, the original plaintiff exercised its option to declare the entire balance of the note due and payable. In July, 2016, the original plaintiff commenced this foreclosure action against the defendant.

On December 2, 2016, the original plaintiff filed a motion for a judgment of strict foreclosure. On March 2, 2017, the original plaintiff filed a motion to substitute party plaintiff, as well as an accompanying memorandum of law in support thereof and an appended copy of its assignment of the mortgage to the substitute plaintiff. On March 20, 2017, the court granted the motion to substitute.

On May 17, 2017, the defendant filed an answer and eight special defenses.² In support of her first and second special defenses, the defendant alleged the following facts. World Savings Bank procured and paid for, as part of the closing costs, the services of a notary public, Kathleen Salerno, who conducted the closing at the defendant's home in Easton. While at the defendant's home, Salerno had the defendant execute all of the necessary closing documents, including the mortgage deed, but Salerno did not notarize those documents while at the defendant's home and did not request or provide a second attesting witness to the mortgage deed as required by General Statutes § 47-5 (a).³ Rather, Salerno subsequently had her husband "witness" the defendant's signature, outside of the defendant's presence and without the defendant's knowledge.

For her first special defense of illegal attestation of the mortgage deed, the defendant alleged that, on the basis of the foregoing factual allegations, Salerno, as an agent of World Savings Bank and a public official in her capacity as a notary public, breached her oath of office and committed acts of fraud in the execution of the mortgage deed, rendering the deed invalid and unenforceable. For her second special defense of unclean hands, relying on the same factual allegations, the defendant claimed that Salerno, as an agent of World Savings Bank, supplied a false witness in an effort to validate the mortgage and that such action constituted "a blatant dishonest attempt to validate an invalid mortgage ...." The remaining special defenses are not at issue in this appeal.

On May 31, 2017, the substitute plaintiff filed a motion to strike the defendant's special defenses, including the first and second special defenses, contesting the legal sufficiency thereof. On July 12 and 13, 2017, respectively, the defendant filed an objection and a memorandum of law in opposition to the motion to strike. On November 21, 2017, the court, inter alia, granted the substitute plaintiff's motion to strike as to the defendant's first and second special defenses.⁴ With respect to the first special defense of illegal attestation of the mortgage deed, the court granted the motion on two grounds: (1) the defect of one invalid witness was cured by operation of General Statutes § 47-36aa (validating act); and (2) a defect in a mortgage cannot be used to defeat a foreclosure action as between the original mortgagor and mortgagee, as a mortgage deed that is not properly witnessed and acknowledged is nevertheless valid as between the parties to the instrument.⁵ As to the defendant's second special defense of unclean hands, the court granted the motion to strike on the ground that the defect of one invalid witness was validated by § 47-36aa (a) (2), and Salerno's alleged fraudulent misconduct played no role in aiding the substitute plaintiff's claim for foreclosure. On December 20, 2017, the substitute plaintiff filed a reply to the defendant's non-stricken special defenses.

On April 12, 2018, following a trial to the court, the court rendered a judgment of strict foreclosure in favor of the substitute plaintiff. This appeal followed. Additional facts and procedural history will be provided as necessary.

At the outset, we note the standard of review and legal principles that apply to the defendant's claims. "Because a motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court, our review of the court's ruling on [a motion to strike] is plenary .... A party wanting to contest the legal sufficiency of a special defense may do so by filing a motion to strike. The purpose of a special defense is to plead facts that are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action .... In ruling on a motion to strike, the court must accept as true the facts alleged in the special defenses and construe them in the manner most favorable to sustaining their legal sufficiency." (Citations omitted; internal quotation marks omitted.) Barasso v. Rear Still Hill Road, LLC , 64 Conn. App. 9, 12–13, 779 A.2d 198 (2001). "In determining whether a motion to strike should be granted, the sole question is whether, if the facts alleged are taken to be true, the allegations provide a cause of action or a defense." County Federal Savings & Loan Assn. v. Eastern Associates , 3 Conn. App. 582, 585, 491 A.2d 401 (1985). We now address the defendant's claims in turn.

I

The defendant first claims that the court erred in striking her first special defense of illegal attestation of the mortgage deed on the basis that § 47-36aa rendered the mortgage deed valid and enforceable despite Salerno's alleged fraudulent use of her husband as a false witness.⁶ Specifically, without relying on any specific language of § 47-36aa or any underlying legislative history, the defendant argues that "it is clear that the legislature never intended in enacting [§] 47-36aa to validate such fraudulent acts." In response, the substitute plaintiff contends that the relevant provisions of § 47-36aa (a) are clear and unambiguous and provide that, unless an action challenging the validity of a mortgage on the basis of one of the conveyancing defects or omissions enumerated in § 47-36aa (a) is commenced and a notice of lis pendens is recorded on the land records within two years after the mortgage is recorded, such mortgage is as valid as if it had been executed without the defect or omission. Therefore, the substitute plaintiff argues, in the absence of such procedure being followed in the present case, the alleged witnessing defect is cured by operation of § 47-36aa (a). We agree with the substitute plaintiff.

We briefly address the applicable standard of review. Resolution of the defendant's claims on appeal requires us to determine whether § 47-36aa (a) applies to cure an attesting witness defect or omission in the context of an allegation of fraud in the execution of a mortgage deed. Because statutory interpretation involves a question of law, our review is plenary. Bell Atlantic NYNEX Mobile, Inc. v. Commissioner of Revenue Services, 273 Conn. 240, 249, 869 A.2d 611 (2005).

"When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature .... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply .... In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered .... Importantly, ambiguity exists only if the statutory language at issue is susceptible to more than one plausible interpretation." (Footnote added; internal quotation marks omitted.) Connecticut Housing Finance Authority v. Alfaro , 328 Conn. 134, 141–42, 176 A.3d 1146 (2018).

We begin with the language of § 47-5, entitled in part "Requirements re conveyances of land," which provides in relevant part: "(a) All conveyances of land shall be: (1) In writing; (2) if the...