Wells Fargo Bank, N.A. v. Owen, 165 A.3d 275, 174 Conn. App. 102 (2017)

June 20, 2017 · Connecticut Appellate Court · AC 38239
165 A.3d 275, 174 Conn. App. 102
WELLS FARGO BANK, N.A. v. Marlene E. OWEN, et al.

WELLS FARGO BANK, N.A.
v.
Marlene E. OWEN, et al.

AC 38239

Appellate Court of Connecticut.

Argued March 21, 2017
Officially released June 20, 2017

Kenneth A. Leary, for the appellants (named defendant et al.).

Jonathan A. Adamec, with whom, on the brief, was Christopher S. Groleau, for the appellee (plaintiff).

Lavine, Prescott and Flynn, Js.

LAVINE, J.

*104The defendants Marlene E. Owen and William S. Owen1 appeal from the denial of their motion to open the judgment of strict foreclosure rendered by the trial court in favor of the plaintiff, Wells Fargo Bank, N.A. The defendants claim that the court abused its discretion in denying their motion because they showed good cause to warrant opening the judgment pursuant to General Statutes § 49-15. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the defendants' claim. On April 23, 2013, the plaintiff, as trustee for the holders of the Merrill Lynch Mortgage Investors Trust, served a complaint on the defendants, a married couple, seeking to foreclose on their property at 22-24 Bayberry Hill Road in Norwich.2 The defendants, self-represented, entered their appearances but never filed an answer or any special defenses to the plaintiff's complaint. For more than one year, from May 14, 2013, to June 3, 2014, the parties engaged in at least six mediation sessions to resolve the case but were ultimately unsuccessful. None *105of the mediator reports stated that the defendants claimed that the loan application contained inaccurate information regarding Marlene Owen's income or that the plaintiff's predecessor in interest, WMC Mortgage Corporation, misled the defendants when they applied for and executed *277the mortgage.3 Instead, the defendants sought to modify the loan because "[t]he mortgagor was laid off from his job."

On March 20, 2015, approximately nine months after the mediation period ended, the plaintiff filed a motion to default the defendants for failure to plead, which was granted on April 1, 2015. On April 1, 2015, the plaintiff filed a motion for a judgment of strict foreclosure. On April 13, 2015, counsel for the defendants entered his appearance but failed to file an answer or any special defenses to the plaintiff's complaint or to contest the entry of the default in any way. See Practice Book §§ 10-46 and 10-50. The defendants also failed to file a motion for a continuance to obtain additional time to collect evidence to support a claim of fraud. On May 18, 2015, the court heard the plaintiff's motion for a judgment of strict foreclosure, but neither the defendants nor counsel for the defendants appeared at the hearing to contest the motion or to ask for a continuance. The court granted the plaintiff's unopposed motion for a judgment of strict foreclosure and set the law days to begin July 21, 2015.

On July 8, 2015, the defendants filed a motion to open the judgment of strict foreclosure pursuant to § 49-15.4

*106In the motion, they requested oral argument but specifically indicated that "testimony is not required." The court heard oral argument on the motion during a short calendar hearing on July 20, 2015.5 The defendants asserted that they had good cause to open the judgment because they had proof that an agent of the plaintiff's predecessor in interest knowingly misled them into applying for and executing the mortgage by assuring them that they could afford the mortgage. They also claimed that the plaintiff's predecessor in interest altered the income information on the loan application without the defendants' knowledge. The evidence the defendants submitted in support of their argument included a sworn affidavit from William Owen, who attested that he had applied for and executed the mortgage "based on false representations ... by [the] [p]laintiff's predecessor's agent that [he] could afford the mortgage in question" and that Marlene Owen's "income was fraudulently put down by [the] [p]laintiff's predecessor's said agent as $5000 per month without [her] knowledge or [his], when it was in fact $2100 per month." They also provided a copy of Marlene Owen's 2004 tax returns and the loan application, which showed that the income listed in the tax returns did not match the income listed in the loan application. Thus, they argued that they *278should be given an opportunity to assert the special defenses of unclean hands and fraud in the inducement in the foreclosure action.

The plaintiff argued that the defendants failed to show good cause to open the judgment of strict foreclosure. Contrary to the defendants' assertion, the plaintiff *107contended that if any party was defrauded or misled, it was the plaintiff because it unknowingly relied on the loan application that contained incorrect information. It also argued that the defendants could not claim that their income was altered without their knowledge because they had an opportunity to review the loan application and correct any inaccurate information before they had signed it.

The same day, the court denied the defendants' motion to open the judgment of strict foreclosure.6 The defendants filed a motion for articulation, and the court granted the motion and referred the parties to the transcript of the July 20, 2015 hearing. The defendants filed another motion for articulation, which the court denied. The defendants appealed to this court on August 7, 2015. Thereafter, the defendants never sought an articulation in accordance with Practice Book § 66-5.

On appeal, the defendants claim that the court abused its discretion in denying their motion to open the judgment of strict foreclosure. They argue that, pursuant to § 49-15, they showed good cause to open the judgment by providing proof that the plaintiff engaged in fraud. They contend that they did not assert their defenses prior to the court's rendering its decision on the plaintiff's motion for a judgment of strict foreclosure because they were not aware of any relevant defenses to foreclosure until after they had hired an attorney, and, thus, "[i]t would be unjust to bar their defenses under these circumstances ...." We disagree.7

*108"Generally, an appeal must be filed within twenty days of the date notice of the judgment or decision is given.... In the context of an appeal from the denial of a motion to open judgment, [i]t is well established in our jurisprudence that [w]here an appeal has been taken from the denial of a motion to open, but the appeal period has run with respect to the underlying judgment, [this court] ha[s] refused to entertain issues relating to the merits of the underlying case and ha[s] limited our consideration to whether the denial of the motion to open was proper.... When a motion to open is filed more than twenty days after the judgment, the appeal from the denial of that motion can test only whether the trial court abused its discretion in failing to open the judgment and not the propriety of the merits of the underlying judgment." (Citation omitted; internal quotation marks omitted.) Wells Fargo Bank, N.A. v. Ruggiri , 164 Conn.App. 479, 484, 137 A.3d 878 (2016).

In the present case, there is no dispute that the defendants did not file their motion to open within twenty days of the court's rendering the judgment of strict *279foreclosure. Therefore, we will review the defendants' claim under an abuse of discretion standard and will not address the merits of the judgment of strict foreclosure.

"This court must make every reasonable presumption in favor of the trial court's decision when reviewing a claim of abuse of discretion.... Our review of a trial court's exercise of the legal discretion vested in it is limited to the questions of whether the trial court correctly applied the law and could reasonably have reached the conclusion that it did." (Internal quotation marks omitted.) First Connecticut Capital, LLC v. Homes of Westport, LLC , 112 Conn.App. 750, 761, 966 A.2d 239 (2009).

"When a party seeks to open and vacate a judgment based on new evidence allegedly showing the judgment *109is tainted by fraud, he must show, inter alia, that he was diligent during trial in trying to discover and expose the fraud, and that there is clear proof of that fraud ." (Emphasis added.) Chapman Lumber, Inc. v. Tager , 288 Conn. 69, 107, 952 A.2d 1 (2008). "Some evidence suggesting actual wrongdoing ... and not merely the specter of such, is necessary in order to set aside a final adjudication." Bank of America, N.A. v. Thomas , 151 Conn.App. 790, 806 n.7, 96 A.3d 624, 634 (2014).

We conclude that the court did not abuse its discretion in denying the defendants' motion to open the judgment of strict foreclosure because it reasonably could have decided that the defendants did not meet their burden of showing clear proof that the plaintiff engaged in fraud. The affidavit submitted by the defendants was made by William Owen himself, and contained only bare allegations that the plaintiff's predecessor fraudulently induced the defendants into applying for and executing the mortgage. The supporting documents gave no indication that the plaintiff altered the loan application without the defendants' knowledge or engaged in any other fraudulent activity. The tax return and the loan application listed two different incomes, but it was the responsibility of the defendants to review the loan application to ensure its accuracy before they signed it, and the court reasonably could have found that the discrepancy was not the product of fraudulent behavior. See Ocwen Federal Bank, FSB v. Thacker , 73 Conn.App. 616, 618-19, 810 A.2d 279 (2002) (no abuse of discretion when only evidence in support of opening judgment was defendant's unsubstantiated claim in affidavit).

Additionally, "[t]he denial of such relief to a party who has suffered a default judgment by his failure to defend properly should not be held an abuse of discretion where the failure to assert a defense was the result *110of the moving party's own negligence." (Internal quotation marks omitted.) Hartford Federal Savings & Loan Assn. v. Stage Harbor Corp. , 181 Conn. 141, 143-44, 434 A.2d 341 (1980). The fact that the defendants sat on their equitable rights and waited to assert their defenses until after the court rendered the judgment of strict foreclosure further supports our conclusion that the court did not abuse its discretion. See Countrywide Home Loans Servicing L.P. v. Peterson , 171 Conn.App. 842, 850, 158 A.3d 405 (2017) (no abuse of discretion because "the defendant waited until after the judgment of strict foreclosure had been rendered and the law days were about to run to challenge the finding of debt on the basis of the existence of private mortgage insurance"); Connecticut National Bank v. N.E. Owen II, Inc. , 22 Conn.App. 468, 475, 578 A.2d 655 (1990) (The trial court did not abuse its discretion because "[t]he defendants never asserted a defense with regard to the debt prior to the rendering of *280the judgment of strict foreclosure. Therefore, any claim that they had a good defense to open that judgment and challenge the amount of the debt is equally without merit.").

The defendants attempt to justify their delay in asserting their defenses by arguing that they were unaware of any defenses available to them until they obtained counsel. "[A]lthough we allow [self-represented] litigants some latitude, the right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law." (Internal quotation marks omitted.) Lewis v. Bowden , 166 Conn.App. 400, 403, 141 A.3d 998 (2016). The defendants' failure to assert their defenses because they were not represented by counsel is not a persuasive justification for failing to timely plead as required by court rules.

In any event, the defendants were represented by counsel on April 13, 2015, which was more than one month before the court rendered the judgment of strict *111foreclosure on May 18, 2015. Not only did the defendants' counsel fail to respond to the plaintiff's complaint or assert any defenses prior to May 18, 2015, neither the defendants nor their counsel appeared at the hearing on the motion for a judgment of strict foreclosure to request a continuance in order to gather evidence to support their defenses. It is also notable that in the defendants' motion to open the judgment of strict foreclosure, the defendants' counsel only requested oral argument and specifically indicated that testimony was not required. See USA Bank v. Schulz , 143 Conn.App. 412, 419, 70 A.3d 164 (2013) ("the defendant has no basis for claiming an abuse of discretion by the trial court in denying him relief that he could readily have sought, had he wished to, at a time when he was represented by competent counsel"). Perhaps another judge might have ordered an evidentiary hearing under the circumstances; however, we are unwilling to conclude that the failure to do so was an abuse of discretion.

The judgment is affirmed and the case is remanded for the purpose of setting new law days.

In this opinion PRESCOTT, J., concurred.

FLYNN, J., dissenting.

Those who have sat in the busy trial courts engaged in the challenging business of what Whittier once described as the "doubtful balance of rights and wrongs," know that some cases merit a second look on appeal. In my view, this case requires such a second look. In late 2005, the defendants Marlene E. Owen and William S. Owen executed two mortgages on their 22 Bayberry Hill Road property, including the mortgage that is the subject of this foreclosure action, in favor of Mortgage Electronic Registration Systems, Inc., as nominee for WMC Mortgage Corporation *112WMC).1 The subject mortgage later was assigned to the plaintiff, Wells Fargo Bank, N.A., as Trustee for the Holders of the Merrill Lynch Mortgage Investors Trust, Mortgage Loan Asset-Backed Certificates, Series 2006-WMCI, in September, 2012. After the mortgage payments proved unsustainable for the defendants, the plaintiff commenced this action and ultimately obtained a judgment of strict foreclosure on May 18, 2015. A few months later, after retaining a lawyer, the defendants *281moved to open the judgment of strict foreclosure pursuant to General Statutes § 49-152 in an attempt to save their home. In support of their motion, the defendants submitted a sworn affidavit-along with a federal tax return and their original mortgage loan application-averring that they were fraudulently induced into executing the two mortgages; see footnote 1 of this dissenting opinion; by an agent of the plaintiff's predecessor in interest, WMC. After hearing arguments, the trial court denied the defendants' motion to open on the papers. In my view, this was a mistake. The affidavit, together with the attachments, set forth more than mere unsupported allegations of fraud. Arguably, these submissions were sufficient to warrant opening the judgment. In any event, the defendants certainly satisfied their threshold burden of presenting more than unsubstantiated speculation. Therefore, the court reasonably should have set the motion down for an evidentiary hearing. Accordingly, I would reverse the court's judgment and remand the case for further proceedings. *113I acknowledge that where, as in the present case, "a party seeks to open and vacate a judgment based on new evidence allegedly showing the judgment is tainted by fraud, he must show, inter alia, that he was diligent during trial in trying to discover and expose the fraud, and that there is clear proof of that fraud."3 (Internal quotation marks omitted.) Chapman Lumber, Inc. v. Tager , 288 Conn. 69, 107, 952 A.2d 1 (2008). Our case law recognizes, however, that parties seeking to open a judgment on the basis of fraud need only make a threshold showing substantiating their claim beyond mere speculation or suspicion; upon making that showing, they become entitled to an evidentiary hearing to determine whether clear proof of the fraud exists. In Tyler E. Lyman, Inc . v. Lodrini , 78 Conn. App. 684, 690, 828 A.2d 681, cert. denied, 266 Conn. 917, 833 A.2d 468 (2003), this court held that "[b]ecause the [trial] court's exercise of discretion in ruling on the motion to open [the judgment] was dependent on the disputed factual issue of fraud, due process required that the [trial] court hold an evidentiary hearing on that issue.... The [trial] court, therefore, abused its discretion in ruling on the matter without affording the parties the opportunity to present evidence with regard to the defendant's fraud claim." (Citation omitted.) In Chapman Lumber, Inc . v. Tager , supra, at 69, 952 A.2d 1, our Supreme Court rejected the defendant's claim that the trial court abused its discretion by denying his motion to open without first conducting an evidentiary hearing because it was "obvious ... that the defendant had no evidence in support of his allegations [of fraud], but rather, *114sought to go on a fishing expedition in the hope of discovering some." Id., at 108, 952 A.2d 1. *282Significantly, however, the court did not foreclose the proposition that a party could be entitled to a hearing under other circumstances, observing that "[t ]o be entitled to a hearing, the defendant needed to make some threshold showing that his claims had substance , which he failed to do." (Emphasis added.) Id. Indeed, this court previously has approved a trial court's position that "[i]f the plaintiff was able to substantiate her allegations of fraud beyond mere suspicion, then the court would open the judgment for the limited purpose of discovery, and would later issue an ultimate decision on the motion to open after discovery had been completed and another hearing held." Oneglia v. Oneglia , 14 Conn.App. 267, 270, 540 A.2d 713 (1988).4

This rule entitling parties to an evidentiary hearing after making the requisite threshold showing makes good sense-requiring parties to demonstrate "clear proof" of the fraud based solely on affidavits and the paper record, without an evidentiary hearing, will in many cases be an insurmountable burden. This is because fraud claims inevitably involve "questions of *115motive, intent and subjective feelings and reactions"; (internal quotation marks omitted) Barasso v. Rear Still Hill Road, LLC , 81 Conn.App. 798, 806, 842 A.2d 1134 (2004) ; and affidavits setting forth only one party's version of the facts can sometimes be deemed inadequate to prove such issues. See id. Our Supreme Court has observed that the "summary judgment procedure is particularly inappropriate" for resolving questions of fraudulent intent. Town Bank & Trust Co. v. Benson , 176 Conn. 304, 309, 407 A.2d 971 (1978). Rather, "[i]t is only when the witnesses are present and subject to cross-examination that their credibility and the weight to be given to their testimony can be appraised." (Internal quotation marks omitted.) Barasso v. Rear Still Hill Road, LLC , supra, at 806, 842 A.2d 1134. In light of this practical reality, in-court testimony is sometimes necessary to determine whether "clear proof" of the fraud exists.

Applying these principles, even if the court concluded that the affidavit and its supporting documents were not enough, standing alone, to warrant opening the judgment, I do not believe that the court reasonably could have concluded that the defendants had not met the threshold for entitlement to a further evidentiary hearing on their motion to open. In his sworn affidavit, William attested to the following facts concerning the making of the mortgages: (1) that before executing the two mortgages, he expressed concerns about his ability to afford them, particularly because they represented 100 percent financing on the property, required greater monthly payments than he was used to, *283and carried a substantial $45,457.89 balloon payment;5 (2) that an agent of WMC convinced him to ignore such concerns by falsely claiming that similarly structured mortgages "were common and usual" and that, "based on the value *116of the property," he could "certainly" refinance the mortgages to avoid the balloon payment; (3) that he would not have agreed to the mortgage loans, given their "substantial initial costs and unaffordable burdens," but for these misrepresentations; and (4) that WMC falsely listed Marlene's monthly income as $5000 in the loan application when in fact it was only $2100. The defendants also submitted copies of their loan application and Marlene's 2004 tax returns, showing that she earned just over $2100 per month that year, and that her income was listed as $5000 on the application. The plaintiff never filed a counteraffidavit rebutting any of the defendants' assertions, nor did it offer any rebuttal testimony or documentary evidence. Arguments by the plaintiff's counsel in opposition are not sworn, and are not evidence.

The defendants' submissions raised a substantial question about whether the defendants were fraudulently induced into entering the two mortgages. Indeed, this court recently has held that knowingly false statements to a borrower about the affordability of a loan can form the basis for a claim of fraud in the inducement. See Bank of America, N.A . v. Aubut , 167 Conn. App. 347, 382-83, 143 A.3d 638 (2016). That the defendants presented documentary evidence suggesting that Marlene's income was improperly inflated-by almost 140 percent-bolsters their claim that the ultimate judgment of strict foreclosure was tainted by fraud. I also do not agree with the majority's characterization of William's affidavit as mere "allegations" of fraud. Sworn statements of fact set forth in an affidavit, concerning matters about which the affiant has personal knowledge, are not mere allegations entitled to no weight; they are actual evidence of the truth of those facts. That our judicial system accords affidavits the weight of evidence in a variety of contexts bears that out. Indeed, the plaintiff in the present case proved the *117underlying mortgage debt by submitting an affidavit of debt. In the marital dissolution context, this court held that a defendant's child support guidelines worksheet was sufficiently "based on underlying evidence," including, inter alia, a financial affidavit. McKeon v. Lennon , 155 Conn.App. 423, 444, 109 A.3d 986 (2015), rev'd in part on other grounds, 321 Conn. 323, 138 A.3d 242 (2016). Affidavits also suffice in prejudgment remedy proceedings to establish probable cause that the moving party will prevail on the merits. See General Statutes § 52-278c(a)(2).

Additionally, the transcript of the July 20, 2015 short calendar hearing, at which the defendants' motion was heard, does not reflect that the trial court applied any of the previously discussed principles.6 Instead, although the precise basis for the court's decision is not entirely clear, the court expressed skepticism about the merits of the defendants' fraud claim because they had an opportunity to review the *284allegedly inflated income statement during the closing, and because they executed the mortgage to consolidate their credit card debt. There is no evidence in the record, however, to suggest that the defendants had an opportunity to review the loan application at the loan closing or that the proceeds from the mortgage being foreclosed satisfied their credit card debt. Indeed, William Owen explicitly disputed the proposition that the mortgage, in any manner, was related to their credit card debt. Thus, the stated basis for the court's decision only underscores the need for an evidentiary hearing if the court was not satisfied that the affidavit and attached documents established clear proof of the fraud. *118In sum, this is not a case in which the defendants were "not able to substantiate [their] allegation of fraud beyond the realm of speculation and mere suspicion." Bank of America, N.A. v. Thomas , 151 Conn.App. 790, 805, 96 A.3d 624 (2014). Accordingly, if the court deemed it needed more than the unrebutted affidavit and attachments, an evidentiary hearing at which the plaintiff and the defendants would present relevant evidence was necessary for the court to reasonably and properly exercise its discretion in ruling on the defendants' motion to open. See Tyler E. Lyman, Inc . v. Lodrini , supra, 78 Conn.App. at 690, 828 A.2d 681. A short calendar, like the calendar proceeding on the defendants' motion to open, is generally not the time or place to take extended witness testimony. The court nonetheless could have scheduled the case for a hearing at a later date.7 The court's failure to do so despite the genuine and critically important issues raised by the defendants' motion to open and supporting evidence, in my judgment, was a mistake, and its denial of the defendants' motion an abuse of discretion.

Finally, I do not fault the defendants for their delay in identifying and raising their claim of fraud in the inducement until after the judgment of foreclosure was rendered. The defendants, who generally were unsophisticated in financial transactions and thus in a poor position to recognize the factual basis for a claim of *119fraud, remained self-represented until April 13, 2015, by which point the plaintiff already had moved for the judgment of strict foreclosure. After the defendants obtained the benefit of counsel, it then took time for their lawyer to obtain and review the evidence and formulate their fraud claim. Indeed, the defendants obtained Marlene's 2004 tax returns from a decade before this foreclosure action was commenced to substantiate their claim before filing their motion.

Like claims of bias, claims of fraud are easily alleged. However, because the mere making of such claims against another carries a certain taint, they should not be made unless there is some substance to them. The defendants' counsel properly waited to make the claim of fraud until he had gathered and reviewed the evidence, including Marlene's tax returns, to make *285the required threshold showing that the claim had substance. Attorneys each take an oath swearing to "not knowingly maintain or assist in maintaining any cause of action that is false or unlawful ...." General Statutes § 1-25. Rule 3.1 of the Rules of Professional Conduct provides in relevant part that "[a] lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous ...." Maintaining fidelity to these principles can take time. Penalizing the defendants for taking the time to obtain evidentiary support for their claims before moving to open the judgment would serve no useful policy consideration embodied in the attorneys' oath or Rules of Professional Conduct.

Accordingly, I would reverse the court's judgment denying the motion to open and remand the case for further proceedings.