Wells Fargo Bank v. Melahn

• Docket Number: AC 45699
• Decision Date: 19 December 2023
• Parties: WELLS FARGO BANK, N.A., TRUSTEE v. MICHAEL JOHN MELAHN ET AL.
• Court: Connecticut Court of Appeals

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WELLS FARGO BANK, N.A., TRUSTEE
v.
MICHAEL JOHN MELAHN ET AL.

No. AC 45699

Court of Appeals of Connecticut

December 19, 2023

Argued September 12, 2023

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Procedural History

Action to foreclose a mortgage on certain of the named defendant's real property, and for other relief, brought to the Superior Court in the judicial district of Danbury, where the defendants were defaulted for failure to appear; thereafter the court, Pavia, J., granted the plaintiffs motion for judgment of strict foreclosure and rendered judgment thereon; subsequently, the court, Pavia, J., opened the judgment and granted the motion to dismiss filed by named defendant; thereafter, the court, Pavia, J., granted the plaintiffs motion to reargue and vacated its order of dismissal, and the named defendant appealed to this court, Gruendel, Bear and Flynn, Js., which reversed the trial court's judgment and remanded the matter for further proceedings; subsequently, the named defendant filed amended special defenses and a counterclaim; thereafter, the court, Russo, J., granted the plaintiffs motion to strike the amended special defenses and counterclaim and rendered judgment on the counterclaim for the plaintiff, from which the named defendant appealed to this court, Sheldon, Bright and Bear, Js., which dismissed in part the appeal and affirmed in part the trial court's judgment, and the named defendant, on the granting of certification, appealed to our Supreme Court, which vacated the judgment of this court and remanded the case to this court with direction to reconsider; subsequently, this court, Bright, Moll and Bear, Js., dismissed in part the appeal and affirmed in part the trial court's judgment; thereafter, the trial court, Shaban, J., denied the named defendant's motion to dismiss and granted the plaintiff's motion for summary judgment as to liability only and rendered judgment of strict foreclosure, from which the named defendant appealed to this court. Affirmed.

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

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

Prescott, Moll and Clark, Js.^[*]

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OPINION

PRESCOTT, J.

The defendant Michael John Melahn^[1] appeals from the judgment of strict foreclosure rendered by the trial court in favor of the plaintiff, Wells Fargo Bank, N.A., as Trustee for Option One Mortgage Loan Trust 2007-6, Asset-Backed Certificates, Series 2007-6. The defendant claims that the court improperly (1) declined to hold an evidentiary hearing on his motion to dismiss, which asserted that the plaintiff failed to give him proper notice of the Emergency Mortgage Assistance Program (EMAP) as required by General Statutes § 8-265ee (a),^[2] (2) denied his motion to dismiss as an impermissible collateral attack on the 2010 judgment of strict foreclosure, and (3) rendered summary judgment as to liability only despite the plaintiffs failure to comply with the EMAP notice requirement. We affirm the judgment of the court.

The following facts and procedural history are relevant to our resolution of this appeal.^[3] The plaintiff commenced this action against the defendant in September, 2010, to foreclose a mortgage on residential property in Ridgefield. The defendant was defaulted for failure to appear, and the court rendered a judgment of strict foreclosure in November, 2010, with law days to commence in January, 2011. As part of the judgment, the court ordered the plaintiff to notify the defendant, who had not appeared in the action, in accordance with uniform foreclosure standing orders. Although the court sent notice of the order and judgment to the plaintiff on the day following the judgment, the plaintiff failed to send notice to the defendant until just four days prior to his law day. The defendant did not receive the notice until the actual law day. The notice also failed to contain all of the information required by the standing orders. Despite these deficiencies, the plaintiff nonetheless certified to the court that it had provided proper notice in compliance with the court's standing orders.

On February 22, 2011, an attorney filed an appearance in the matter on behalf of the defendant, and, one month later, the defendant filed a motion to dismiss the action citing the plaintiffs noncompliance with the court's standing orders and the false certification. The plaintiff opposed the motion, but, on July 14, 2011, the court nevertheless opened the judgment of strict foreclosure and granted the defendant's motion to dismiss.

The plaintiff filed a motion to reargue, which the court granted. The court subsequently vacated its order granting the defendant's motion to dismiss, concluding that, despite the plaintiffs actions, the court lacked authority to open the judgment because the law days had passed, vesting absolute title in the plaintiff. As a result, it denied the defendant's motion to dismiss. The defendant appealed, claiming that the court improperly

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granted the plaintiff's motion for reargument and vacated the judgment of dismissal in his favor. See Wells Fargo Bank, N.A. v. Melahn, 148 Conn.App. 1, 85 A.3d 1 (2014). This court concluded on appeal that, "given the unusual specific facts and circumstances of this case"; id., 3; the trial court had both jurisdiction and authority to open the judgment, despite the running of the law days, and abused its discretion by vacating its prior order. Id., 12-13.

After the case was remanded to the trial court, the parties engaged in a protracted dispute regarding the adequacy of various counterclaims and special defenses filed by the defendant. These disputes resulted in the defendant's filing of a second appeal on July 18, 2016.

This court dismissed, for lack of a final judgment, a portion of that appeal and affirmed the judgment with respect to the court's judgment disposing of the defendant's counterclaims. 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). Our Supreme Court granted the defendant's petition for certification to appeal and, thereafter, vacated the judgment of this court and remanded the case with direction to reconsider the appeal in light of its recent decision in U.S. Bank National Assn. v. Blowers, 332 Conn. 656, 212 A.3d 226 (2019). Wells Fargo Bank, N.A. v. Melahn, 333 Conn. 923, 218 A.3d 67 (2019). On remand, this court concluded that Blowers did not require a different result and once again dismissed, for lack of final judgment, the defendant's appeal from the striking of the defendant's second amended special defenses and affirmed the judgment in all other respects. Wells Fargo Bank, N.A. v. Melahn, 198 Conn.App. 151, 168-69, 232 A.3d 1201, cert, denied, 335 Conn. 947, 238 A.3d 19 (2020).

Following this court's decision, the plaintiff demanded, and the defendant filed, a purported disclosure of defense.^[4] The plaintiff subsequently filed a motion for summary judgment as to liability only and a supporting memorandum of law. The plaintiff attached, as an exhibit to an affidavit in support of its memorandum of law, a copy of the notice of default that the plaintiff had mailed to the defendant at the mortgaged property on April 19, 2010. That notice of default contains information about EMAP. At the top of the first page of the notice is a barcode with a twenty digit number below it, which the parties do not appear to dispute is the United States Postal Service (USPS) bar code and tracking number of the certified receipt for the mailed notice.

The defendant objected to the motion for summary judgment and also filed a motion to dismiss. In his motion to dismiss, the defendant argued, for the first time,^[5] that the plaintiff failed to comply with the EMAP notice requirement and that the trial court therefore lacked subject matter jurisdiction over the action. He

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also requested an evidentiary hearing on the motion. The plaintiff filed an objection to the motion to dismiss, to which it again appended as an exhibit a copy of the notice of default to demonstrate its compliance with the requirements of § 8-265ee.

On October 12, 2021, the court, Shaban, J., heard argument on the defendant's motion to dismiss and the plaintiffs motion for summary judgment as to liability only.^[6] In January, 2022, the court issued separate memoranda of decision denying the motion to dismiss and granting the motion for summary judgment.^[7] With respect to the defendant's motion to dismiss, the court concluded, relying in part on Bank of New York Mellon v. Tope, 202 Conn.App. 540, 246 A.3d 4 (2021), rev'd, 345 Conn. 662, 286 A.3d 891 (2022), that the defendant's motion to dismiss was an impermissible collateral attack on the judgment of strict foreclosure. Additionally, the court found unpersuasive the defendant's argument that the plaintiff failed to comply with the EMAP notice requirement and concluded that no evidentiary hearing on the issue of EMAP notice was necessary. With respect to the motion for summary judgment, the court concluded that the defendant had neither submitted any evidence to rebut the plaintiffs prima facie case nor alleged any viable defense, and, therefore, that there was no genuine issue of material fact as to the defendant's liability. On July 18, 2022, the trial court rendered a judgment of strict foreclosure. This appeal followed.

We begin our analysis by noting that the defendant's brief on appeal is not a model of clarity. The defendant appears to claim that the court improperly (1) declined to hold an evidentiary hearing on his motion to dismiss, which raised the plaintiffs asserted failure to comply with the EMAP notice requirement, (2) concluded that the defendant's motion to dismiss was an impermissible collateral attack on the 2010 judgment of strict foreclosure, and (3) rendered a summary judgment as to liability only despite the plaintiff's failure to comply with the EMAP notice...