Bank of Am., N.A. v. Gonzalez, 202 A.3d 1092, 187 Conn. App. 511 (2019)

Jan. 29, 2019 · Connecticut Appellate Court · AC 40405
202 A.3d 1092, 187 Conn. App. 511

BANK OF AMERICA, N.A.
v.
William GONZALEZ et al.

AC 40405

Appellate Court of Connecticut.

Argued October 24, 2018
Officially released January 29, 2019

*1094Ridgely Whitmore Brown, with whom, on the brief, was Benjamin Gershberg, for the appellant (named defendant).

Pierre-Yves Kolakowski, for the appellee (plaintiff).

David Lavery filed a brief for the Connecticut Fair Housing Center as amicus curiae.

Sheldon, Prescott and Pellegrino, Js.

PELLEGRINO, J.

*512The defendant William Gonzalez1 appeals from the judgment of strict foreclosure rendered by the trial court in favor of the plaintiff, Bank of America, N.A. On appeal, the defendant claims that the court erred by concluding that he had failed to satisfy his burden of proving that the mortgage broker was an agent or employee of the original mortgagee and concluding, on that basis, that he had failed to prove any of his special defenses, all of which were based on the alleged conduct of the broker. The defendant further claims that the trial court incorrectly concluded that he had failed to sustain his burden of proving that the mortgage was unconscionable.2 We *513disagree with the defendant and, accordingly, affirm the judgment of the trial court.

The following facts and procedural history are relevant to the resolution of the defendant's claims on appeal. The plaintiff filed this action in August, 2013, seeking to foreclose a residential mortgage on property located at 80 Oakwood Street in Bridgeport. According to the complaint, on March 20, 2006, the defendant executed *1095the mortgage in favor of Mortgage Electronic Registration Systems, Inc., as nominee for Mortgage Capital Group, LLC (Mortgage Capital), as security for a $ 267,750 promissory note payable to the order of Mortgage Capital. The complaint alleged that the note was in default and that the plaintiff, which was in possession of the note, was exercising its option to declare the entire balance of the note due and payable.

On June 25, 2015, the defendant filed an amended answer and six special defenses. The special defenses alleged fraudulent inducement, negligent misrepresentation, equitable estoppel, unconscionability, duress and unclean hands. Each of the special defenses alleged misconduct by David J. Bigley, an alleged employee and/or agent of the original lender and mortgagee, Mortgage Capital.3 On May 5, 2016, the plaintiff filed its reply, *514denying each of the defendant's special defenses. Following a trial on April 18 and 19, 2017, the court rendered a judgment of strict foreclosure.4 In its oral decision, the court found that the plaintiff had presented prima facie evidence to support the judgment of strict foreclosure. The court rejected the defendant's special defenses, finding that the defendant had not satisfied his burden of proving that Bigley was an agent or employee of Mortgage Capital. The defendant then filed the present appeal.

We first set forth our standard of review. "The standard of review of a judgment of ... strict foreclosure is whether the trial court abused its discretion.... In determining whether the trial court has abused its discretion, we must make every reasonable presumption in favor of the correctness of its action.... 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.) Bank of New York Mellon v. Talbot , 174 Conn. App. 377, 382, 165 A.3d 1253 (2017).

"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.) U.S. Bank, N.A. v. Foote , 151 Conn. App. 620, 632, 94 A.3d 1267, cert. denied, 314 Conn. 930, 101 A.3d 952 (2014). In its decision, the trial court noted that there was no disagreement that the plaintiff had established *515a prima facie case. On appeal, the defendant has not challenged the plaintiff's standing as *1096the owner of the note and mortgage or the defendant's default on the note. We, therefore, limit our review to the issues raised by the defendant concerning his special defenses.

"Where the plaintiff's conduct is inequitable, a court may withhold foreclosure on equitable considerations and principles.... [O]ur courts have permitted several equitable defenses to a foreclosure action. [I]f the mortgagor is prevented by accident, mistake or fraud, from fulfilling a condition of the mortgage, foreclosure cannot be had ...." (Internal quotation marks omitted.) Hirsch v. Woermer , 184 Conn. App. 583, 588, 195 A.3d 1182, cert. denied, 330 Conn. 938, 195 A.3d 384 (2018). The defendant bears the burden of proof on his or her special defenses. Kaye v. Housman , 184 Conn. App. 808, 817, 195 A.3d 1168 (2018).

The defendant argues that the court erred in concluding that he had failed to prove that Bigley was an agent or employee of the original mortgagee, Mortgage Capital.5 Each of the special defenses alleged that Bigley, *516as an agent or employee of Mortgage Capital, induced the defendant to enter into this mortgage transaction. In order to prevail on these special defenses, therefore, the defendant was required to prove that Bigley was an agent or employee of Mortgage Capital. See CitiMortgage, Inc. v. Coolbeth , 147 Conn. App. 183, 192, 81 A.3d 1189 (2013), cert. denied, 311 Conn. 925, 86 A.3d 469 (2014). "The existence of an agency relationship is a question of fact ... which may be established by circumstantial evidence based upon an examination of the situation of the parties, their acts and other relevant information." (Citation omitted; internal quotation marks omitted.) Gagliano v. Advanced Specialty Care, P.C. , 329 Conn. 745, 755, 189 A.3d 587 (2018). We review the trial court's findings of fact under the clearly erroneous standard of review. Coppola Construction Co. v. Hoffman Enterprises Ltd. Partnership , 157 Conn. App. 139, 158, 117 A.3d 876, cert. denied, 318 Conn. 902, 122 A.3d 631 (2015) and 318 Conn. 902, 123 A.3d 882 (2015). "A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." (Internal quotation marks omitted.) Ackerman v. Sobol Family Partnership, LLP , 298 Conn. 495, 507-508, 4 A.3d 288 (2010).

"Three elements are required to show the existence of an agency relationship: (1) a manifestation by the principal that the agent will act for him; (2)

*1097acceptance by the agent of the undertaking; and (3) an understanding between the parties that the principal will be in control of the undertaking.... Although stated as a three part test, [our Supreme Court] has also acknowledged there are various factors to be considered in assessing whether [an agency] relationship exists [which] include: whether the alleged principal has the *517right to direct and control the work of the agent; whether the agent is engaged in a distinct occupation; whether the principal or the agent supplies the instrumentalities, tools, and the place of work; and the method of paying the agent.... In addition, [a]n essential ingredient of agency is that the agent is doing something at the behest and for the benefit of the principal." (Citation omitted; internal quotation marks omitted.) Gagliano v. Advanced Specialty Care, P.C. , supra, 329 Conn. at 755, 189 A.3d 587.

Additionally, "[a]pparent authority is that semblance of authority which a principal, through his own acts or inadvertences, causes or allows third persons to believe his agent possesses.... Apparent authority thus must be determined by the acts of the principal rather than by the acts of the agent.... Furthermore, the party seeking to impose liability upon the principal must demonstrate that it acted in good faith based upon the actions or inadvertences of the principal." (Citations omitted; internal quotation marks omitted.) Beckenstein v. Potter & Carrier, Inc. , 191 Conn. 120, 140-41, 464 A.2d 6 (1983).

At trial, the defendant testified that after he received an inheritance from his brother's estate, he consulted his friend, Vincent Curcio, who recommended that he purchase the subject property. Curcio also referred the defendant to Attorney Thomas V. Battaglia, Jr., to represent him in the purchase of the property. Bigley, a mortgage broker doing business as Main Street Mortgage, LLC, assisted the defendant with securing financing to purchase the house.6 Bigley obtained a lender, Mortgage Capital, who was not disclosed to the defendant until the date of the closing.

*518The defendant testified that he paid $ 40,000 as a deposit on the property. He testified that when he first met Bigley, he told Bigley that he could only afford a mortgage in the amount of $ 1250 per month. On the date of the closing, however, he was told that his monthly payment would be $ 2618.16 per month and that if he did not proceed with the transaction, he would lose $ 20,000 of his deposit. At that point, Bigley agreed to loan the defendant the shortfall of $ 16,000 to complete the closing. The defendant was not informed that Bigley held a mortgage on the property from Sunrise Contracting, LLC, the seller of the property, in the amount of $ 249,600, that would be paid off with the proceeds of the sale to the defendant. The mortgage from Sunrise Contracting, LLC, to Bigley was witnessed by Battaglia who, unbeknownst to the defendant, was Bigley's cousin.7

In addition to the defendant's testimony, the court considered several exhibits that were admitted into evidence. Specifically, the mortgage loan origination agreement, signed by the defendant on January 30, 2006, identified Main Street Mortgage, LLC, as an independent contractor and licensed mortgage broker under the laws *1098of the state of Connecticut. This document provided in relevant part: "In connection with this mortgage loan we are acting as an independent contractor and not as your agent. We will enter into separate independent contractor agreements with various lenders." Similarly, the mortgage broker fee disclosure, signed by the defendant on January 30, 2006, provided in relevant part: "The mortgage broker will submit your application for a residential mortgage loan to a participating lender with which it from time to time contracts upon such *519terms and conditions as you may request or a lender may require.... The mortgage broker may be acting as an independent contractor and not as your agent. If you are unsure of the nature of your relationship, please ask the mortgage broker for clarification.... The mortgage broker has entered into separate independent contractor agreements with various lenders." Finally, the mortgage broker fee disclosure also provided: "You may work with the mortgage broker to select the method [by] which it receives its compensation depending on your financial needs, subject to the lender's program requirements and credit underwriting guidelines." The "Good Faith Estimate," also signed by the defendant on January 30, 2006, provided that it was "being provided by Main Street Mortgage, LLC, a mortgage broker, and no lender has yet been obtained."

On cross-examination, the defendant testified that he had no evidence that Mortgage Capital set Bigley's hours or supplied any office supplies to Bigley. He further testified that he had no evidence that Mortgage Capital provided or told Bigley who to get as customers. Finally, the defendant testified that he did not read any of the closing documents.

In its oral decision at the conclusion of the trial, the court stated: "The defenses basically rely on an allegation that Bigley induced the defendant to enter into this mortgage. In order to prove each or any of the special defenses, the defendant had to prove that Bigley [was] an agent or employee of the originating lender, the originating lender being Mortgage Capital ... [and] the court will find that the evidence showed that Bigley, at that time, was not an agent or employee of Mortgage Capital .... Bigley acted as an independent contractor who worked for and owned, according to Battaglia's statement, Main Street Mortgage, LLC, and that's who Bigley was working for. The defendant, in order to make out or prove any of these special *520defenses, had to establish a link, connection between Bigley, the broker, and the lender. And the evidence, credible evidence, just didn't show that."

The court further stated that Mortgage Capital "had little control over the actions of ... Bigley. Bigley was not acting for the sole benefit of [Mortgage Capital] and [it] did not ... provide the instrumentalities, the tools, or place of work for the broker and all of that tends to prove the lack of an agency relationship." The court continued by stating that "another important factor ... is that neither the plaintiff nor [Mortgage Capital], according to the evidence, told the defendant anything. All the allegations, which [the defendant] testified to, are against Bigley, and there's no evidence that the plaintiff or [Mortgage Capital] made any representations to [the defendant] at all. Now the court is not unsympathetic to the position and the predicament that [the defendant] found himself in, but based upon the evidence and the credible evidence that's been presented, again, the ... special defenses simply aren't supported. And the fact that [the defendant] has testified that he didn't read these various documents is not a defense."8

In support of its decision, the court relied on *1099CitiMortgage, Inc. v. Coolbeth , supra, 147 Conn. App. at 183, 81 A.3d 1189. In that case, the trial court granted the plaintiff's motion for summary judgment as to liability on its complaint *521and as to the defendants' special defenses and counterclaim, which alleged fraud and unconscionable conduct by the plaintiff. Id., at 188, 81 A.3d 1189. The court concluded that the defendants had failed to raise a genuine issue of material fact with respect to the existence of an agency relationship among the plaintiff, the mortgage broker, and Citibank, which maintained the defendants' credit card accounts. Id. In affirming the judgment of the trial court, this court stated: "The existence of an agency relationship is critical to the viability of the defendants' special defenses and counterclaim, insofar as the special defenses and counterclaim are primarily directed toward the representations and actions of the mortgage broker and Citibank-not the plaintiff." Id., at 192, 81 A.3d 1189, citing Barasso v. Rear Still Hill Road, LLC , 81 Conn. App. 798, 805, 842 A.2d 1134 (2004).

On the basis of our review of the evidence in the present case, we agree that the defendant did not produce evidence to establish that Bigley was an agent or employee of Mortgage Capital, or that he was acting with its apparent authority. Although the defendant argues that Mortgage Capital communicated with him exclusively through Bigley and that Mortgage Capital had the power to control the means by which such communications were to be made, there is no evidence that it knew of or promoted the line of communication between Bigley and the defendant. Furthermore, there is no evidence indicating that the defendant knew of or relied upon any statement or action of Mortgage Capital when he entered into the transaction at issue; the defendant, rather, testified that he did not learn that Mortgage Capital was the lender until the date of the closing. "It is not within the province of this court to 'connect the dots' " to find that Bigley was an agent of Mortgage Capital. CitiMortgage, Inc. v. Coolbeth , supra, 147 Conn. App. at 198, 81 A.3d 1184. We cannot say, therefore, that the trial court's finding that Bigley was not an agent or *522employee of Mortgage Capital was clearly erroneous. Because the existence of the agency relationship was critical to the viability of the defendant's special defenses; id., at 192, 81 A.3d 1189 ; the court correctly concluded that the defendant could not prevail on his special defenses.9 *1100The judgment is affirmed and the case is remanded for the purpose of setting new law days.

In this opinion the other judges concurred.