Wells Fargo Bank, N.A. v. Melahn

Decision Date16 June 2020
Docket NumberAC 39426
Citation232 A.3d 1201,198 Conn.App. 151
CourtConnecticut Court of Appeals
Parties WELLS FARGO BANK, N.A., Trustee v. Michael John MELAHN et al.

Ridgely Whitmore Brown, for the appellant (named defendant).

Marissa I. Delinks, for the appellee (plaintiff).

Bright, Moll and Bear, Js.

MOLL, J.

This foreclosure case returns to this court on remand from our Supreme Court. See Wells Fargo Bank, N.A. v. Melahn , 333 Conn. 923, 218 A.3d 67 (2019). The defendant Michael John Melahn1 appeals from the judgment of the trial court rendered in favor of the plaintiff, Wells Fargo Bank, N.A., as trustee,2 on the defendant's stricken second amended counterclaim and the court's striking of the defendant's second amended special defenses. In Wells Fargo Bank, N.A. v. Melahn , 181 Conn. App. 607, 614, 186 A.3d 1215 (2018), rev'd, 333 Conn. 923, 218 A.3d 67 (2019), this court dismissed, for lack of a final judgment, the portion of the defendant's appeal taken from the striking of his second amended special defenses and affirmed the judgment in all other respects. Thereafter, the defendant petitioned our Supreme Court for certification to appeal. Our Supreme Court granted the defendant's petition, vacated this court's judgment, and remanded the case to this court with direction to reconsider its judgment in light of our Supreme Court's decision in U.S. Bank National Assn. v. Blowers , 332 Conn. 656, 212 A.3d 226 (2019).

Wells Fargo Bank, N.A. v. Melahn , supra, 333 Conn. at 923, 218 A.3d 67. On remand, we conclude that Blowers does not require a different disposition of the appeal. Accordingly, we dismiss, for lack of a final judgment, the appeal as to the striking of the defendant's second amended special defenses, and we affirm the judgment in all other respects.

The following facts and procedural history, as set forth by this court in two prior opinions, are relevant to our resolution of this appeal. "On September 9, 2010, the plaintiff filed an action against the defendant to foreclose a mortgage on certain of his real property. The defendant was defaulted for failure to appear on November 2, 2010. The court rendered a judgment of strict foreclosure on November 22, 2010, with a law day of January 11, 2011. As part of its judgment, the court ordered the plaintiff to ‘send notice to nonappearing individual defendants by regular and certified mail in accordance with the standing orders.’ Paragraph D of the uniform foreclosure standing orders, form JD-CV-104, provides: ‘Within 10 days following the entry of judgment of strict foreclosure the plaintiff must send a letter by certified mail, return receipt requested, and by regular mail, to all non-appearing defendant owners of the equity and a copy of the notice must be sent to the clerk's office. The letter must contain the following information: a.) the letter is being sent by order of the Superior Court; b.) the terms of the judgment of strict foreclosure; c.) non-appearing defendant owner(s) of equity risk the loss of the property if they fail to take steps to protect their interest in the property on or before the defendant owners’ law day; d.) nonappearing defendant owner(s) should either file an individual appearance or have counsel file an appearance in order to protect their interest in the equity. The plaintiff must file the return receipt with the Court. The Plaintiff Must Not File A Certificate Of Foreclosure On The Land Records Before Proof Of Mailing Has Been Filed With The Court.’ On November 23, 2010, the court sent notice of the order and judgment to the plaintiff. The plaintiff, however, did not send notice to the defendant until January 7, 2011, four days before his law day, and the certified notice was not delivered to him until January 11, 2011, the actual law day. The notice sent to the then nonappearing defendant also did not contain the important information required by the standing orders, which the court had mandated in its judgment. Despite this deficiency, the plaintiff nevertheless certified to the court that notice had been mailed ‘in compliance with Uniform Foreclosure Standing Order JD-CV-79 and JD-CV-104 (d), on January 7, 2011, to all counsel and pro se parties of record to this action ....’ (Emphasis omitted.)

"On February 22, 2011, after the defendant secured legal representation, his attorney filed an appearance in the case, and, on March 31, 2011, he filed a motion to dismiss the foreclosure action due to the plaintiff's noncompliance with the court's judgment and the false certification. The plaintiff opposed the motion. On July 14, 2011, the court opened the judgment of strict foreclosure and granted the defendant's motion to dismiss, holding that because the plaintiff had ‘failed to comply with the notice requirement of the standing orders, the matter is dismissed as to [the defendant]. ...’ On August 24, 2011, the plaintiff filed a motion to reargue, citing the case of Falls Mill of Vernon Condominium Assn., Inc. v. Sudsbury , 128 Conn. App. 314, 320–21, 15 A.3d 1210 (2011). The defendant objected to the plaintiff's motion and argued that the dismissal was a proper sanction for the plaintiff's failure to adhere to the order contained in the court's judgment and that it filed a false certification. The court granted the plaintiff's motion and concluded that, despite the plaintiff's failure to adhere to the notice requirements contained in the judgment of strict foreclosure, the court was precluded from opening the judgment and dismissing the action because the law day had passed and title had become absolute in the plaintiff. The court therefore vacated its order granting the defendant's motion to dismiss and then denied the defendant's motion." (Footnotes omitted.) Wells Fargo Bank, N.A. v. Melahn , 148 Conn. App. 1, 3–6, 85 A.3d 1 (2014). The defendant appealed therefrom. Id., at 5–6, 85 A.3d 1.

"In [ Wells Fargo Bank, N.A. v. Melahn , supra, 148 Conn. App. at 1, 85 A.3d 1 ], this court, despite the running of the law day, reversed the judgment of strict foreclosure and remanded the case to the trial court because the plaintiff had failed to comply with the foreclosure standing orders by giving timely notice to the defendant of certain important terms of the foreclosure judgment and the adverse consequences of his continued failure to take action. Id., at 4, 12–13, 85 A.3d 1. Moreover, the plaintiff incorrectly had certified to the court that the required notice had been provided to the defendant when, in fact, it had not been provided. Id., at 6, 12–13, 85 A.3d 1.

"After the case was remanded to the trial court, the defendant, on June 4, 2015, filed an answer with special defenses and a four count counterclaim, which included a count alleging no specific cause of action, a count alleging a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., a count alleging breach of contract/breach of the implied covenant of good faith and fair dealing, and a count alleging fraudulent or negligent misrepresentation. The plaintiff moved to strike the special defenses and the counterclaim, alleging, in relevant part, that all counts of the counterclaim were legally insufficient. The defendant, thereafter, consented to the granting of that motion.

"On August 28, 2015, the defendant filed an amended answer with special defenses and a four count counterclaim, which included counts for (1) tortious predatory lending and foreclosure practices, (2) a CUTPA violation, (3) breach of contract/breach of the implied covenant of good faith and fair dealing, and (4) fraudulent and negligent misrepresentation. The plaintiff again moved, in relevant part, to strike all counts of the counterclaim on the ground of legal insufficiency. On September 10, 2015, the court granted the motion to strike.

"On October 26, 2015, the defendant filed a second amended answer with special defenses and an eight count counterclaim. The alleged factual basis for the defendant's counterclaim was, in relevant part, as follows: The defendant, his wife, and his mother-in-law reside in the subject property. The defendant was nonappearing in the initial foreclosure. The plaintiff had failed to comply with the uniform foreclosure standing orders by sending a letter, via regular and certified mail, to the defendant regarding the rendering of judgment. ... The plaintiff negligently misrepresented facts that induced the defendant to enter into the mortgage and loan agreement, despite the defendant's inability to pay the loan on a long-term basis, and the plaintiff benefited from these misrepresentations. The plaintiff made several misrepresentations that it knew, or should have known, to be false, and, as a result of these misrepresentations, the defendant was harmed.

"On the basis of these alleged facts, the defendant set forth the following numbered counts in his counterclaim: (1) negligent misrepresentation, (2) intentional misrepresentation and fraud, (3) breach of contract/ breach of the implied covenant of good faith and fair dealing, (4) a violation of CUTPA, (5) wanton and reckless violation of CUTPA, (6) a violation of CUTPA, (7) a violation of CUTPA with an ascertainable loss, and (8) a violation of CUTPA with punitive damages. The plaintiff objected to the second amended answer with special defenses and counterclaim on the ground that the defendant had failed to comply with Practice Book (2015) § 10-60 (a).3 The court sustained the objection and ordered the second amended answer with special defenses and counterclaim stricken.

"On November 12, 2015, the defendant refiled his second amended answer with special defenses and an eight count counterclaim. In response, on November 25, 2015, the plaintiff filed a motion to strike with prejudice the defendant's refiled pleading on the ground that the special defenses and each count of the counterclaim were legally insufficient. The plaintiff alleged, in...

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