Bank of America, National Association v. Liebskind

Bank of America, National Association, et al. v. David Liebskind, et al

No. FSTCV106006445S

Superior Court of Connecticut, Judicial District of Stamford-Norwalk, Stamford

March 31, 2017

UNPUBLISHED OPINION

MEMORANDUM OF DECISION

Hon Kevin Tierney, Judge Trial Referee.

This is a Memorandum of Decision in a contested residential foreclosure tried over four days on the original complaint dated August 20, 2010. Both parties were represented by counsel. The court makes the following findings of fact and legal conclusions:

The original August 20, 2010 one-count complaint is the operative complaint. The court finds that the following allegations of the operative complaint have been proven by the plaintiff: On April 24, 2006 the defendants, David Liebskind and Indra S Asserfea, signed an Adjustable Rate Note in the amount of $1 000, 000 to the lender, Washington Mutual Bank, FA. The Adjustable Rate Note of $1, 000, 000 was secured by a first mortgage on real property owned by the two defendants at 20 Broad Brook Lane, Stamford, Connecticut, which mortgage deed was duly recorded in the Stamford Land Records on May 2, 2006 in Volume 8539 at Page 1. The blue ink Adjustable Rate Note dated April 24, 2006 was examined by the court and the defendants on the record at trial. A photocopy of the Adjustable Rate Note was marked as a full exhibit. Ex. 1. The court returned the blue ink Adjustable Rate Note to plaintiff's counsel on the record. The April 24, 2006 Adjustable Rate Note was endorsed in blank. The Open-End Mortgage Deed dated April 24, 2016 was offered in evidence at trial. Ex. 2.

Washington Mutual Bank, FA later became known as Washington Mutual Bank. On September 25, 2008 Washington Mutual Bank, FA failed and was placed into receivership by the Federal Deposit Insurance Corporation (FDIC). Pursuant to a Purchase and Assumption Agreement, the FDIC sold all the assets of Washington Mutual Bank, FA to JP Morgan Chase Bank, National Association on September 25, 2008. JP Morgan Chase Bank, National Association v. Simoulidis, 161 Conn.App. 133, 138-39 126 A.3d 1098, cert. denied 320 Conn. 913, 130 A.3d 266 (2016). By an Assignment of Mortgage, JP Morgan Chase Bank, National Association, Successor in Interest by Purchase from the FDIC as Receiver of Washington Mutual Bank F/K/A Washington Mutual Bank, FA assigned the mortgage and note to U.S. Bank National Association, as Trustee, Successor in Interest to Bank of America, National Association as Trustee as Successor by Merger to LaSalle Bank, National Association as Trustee for WAMU Mortgage Pass-Through Certificates Series 2006-AR7 Trust. Ex. 3. LaSalle Bank National Association and LaSalle Bank Midwest National Association merged with and into the Bank of America, National Association effective October 17, 2008. Ex. 6. On August 24, 2010 the original plaintiff, Bank of America, National Association Successor by Merger to LaSalle Bank, NA as Trustee for WAMU Mortgage Pass-Through Certificates Series 2006-AR7 Trust commenced this foreclosure action. See Return of Service and Summons--Civil form JD-CV-1 in the Superior Court file. The parties agreed on the trial record that this foreclosure action commenced on August 24, 2010.

The court's on the record trial examination of the blue ink Adjustable Rate Note for $1, 000, 000, the return of the blue ink Adjustable Rate Note to plaintiff's counsel and the marking into evidence of an identical photocopy of the Adjustable Rate Note at trial as Exhibit 1 complied with Connecticut law for the court's examination of the Adjustable Rate Note. Countrywide Home Loans Servicing, LP v. Creed, 145 Conn.App. 38, 43-44, 75 A.3d 38, cert. denied 310 Conn. 936, 79 A.3d 889 (2013); Equity One, Inc. v. Shivers, 310 Conn. 119, 124-25, 74 A.3d 1225 (2013).

The defendants defaulted in failing to make payments of principal and interest pursuant to the Adjustable Rate Note. Ex. 1, paragraphs 3(B) and 7(B). See Ex. 10, Chase Detailed Transaction History, page 16 of 19. Default notices were sent to the defendants on March 4, 2010. Ex. 7, Ex. 8. No further payments on said principal and interest have been made by the defendants to date. The defendants, as of the last day of trial, were the owners of record in possession of the premises at 20 Broad Brook Lane, Stamford, Connecticut.

On July 25, 2016 the defendants filed an Answer and Special Defenses, which the defendants labeled " Court Ordered Amended Answer and Special Defense" (#154.00). The court will disregard that part of pleading #154.00 that is labeled: AS TO CLAIMS FOR RELIEF on the basis that such a pleading is not permitted by Connecticut practice. The court finds that there is no need for a defendant litigant to file an Answer to the plaintiff's Claims for Relief and further finds that the Answers to the plaintiff's eleven numbered allegations in the body of its August 20, 2010 complaint are sufficient. The defendants filed the following two Special Defenses: " 1. The plaintiff has unclean hands." " 2. The plaintiff should be equitably estopped from seeking foreclosure." No facts were alleged in either Special Defense. The plaintiff's May 29, 2014 Reply denying these two Special Defenses closed the pleadings. (#113.00) P.B. § 10-61.

On July 3, 2014 the defendants filed a Motion to Dismiss (#117.00). The hearing on this Motion to Dismiss was assigned to the undersigned who conducted a two-day evidentiary hearing on November 20, 2014 and March 18, 2015. Post-hearing briefs were filed with the latest brief dated June 3, 2015 (#134.00, #135.00). On September 17, 2015 this court issued a twenty-page Memorandum of Decision denying the defendants' Motion to Dismiss that had cited three reasons why this court lacked subject matter jurisdiction (#117.02). The court found that none of the three reasons deprived this court of subject matter jurisdiction. The court found on September 17, 2015 that the plaintiff had standing to commence this foreclosure lawsuit and has standing to continue to maintain this foreclosure lawsuit (#117.00, page 20).

The plaintiff filed its Motion for Summary Judgment on July 18, 2014 (#120.00). That Motion for Summary Judgment was never heard or decided by the court. The defendants received an extension of time to August 24, 2014 to reply to the Motion for Summary Judgment (#125.86). The defendants requested a further extension to reply to the plaintiff's Motion for Summary Judgment on October 6, 2015 (#136.00), just after this court denied the defendants' Motion to Dismiss. The defendants never filed any opposition documents, exhibits, affidavits, or pleadings to the Motion for Summary Judgment (#120.00). The Motion for Summary Judgment (#120.00) was last placed on the short calendar on December 14, 2015 but never marked ready, argued or withdrawn. This trial was scheduled to commence on January 8, 2016.

The original plaintiff, the Bank of America, National Association Successor by Merger to LaSalle Bank, NA as Trustee for WAMU Mortgage Pass-Through Certificates Series 2006-AR7 Trust filed a June 24, 2014 Motion to Substitute (#115.00). That motion sought to substitute as the substituted plaintiff, U.S. Bank National Association, as Trustee, Successor in Interest to Bank of America, National Association as Trustee as Successor by Merger to LaSalle Bank, National Association as Trustee for WAMU Mortgage Pass-Through Certificate Series 2006-AR7 Trust (#115.00). The defendants opposed the Motion to Substitute. This motion was heard by the undersigned who granted the above Motion to Substitute on December 9, 2015 (#115.02). As of the hearing date, the trial had been scheduled before the undersigned to commence on January 8, 2016. The Motion to Substitute was the subject of a Request for Leave to Amend Motion to Substitute Numc Pro Tunc dated June 3, 2016 to correct a scrivener's error in the original Motion to Substitute wherein the word " Trust" at the end of the substituted plaintiff's name was " inadvertently omitted from the Motion at the time of filing." (#150.00). This Request for Leave was filed before the trial evidence concluded. No opposition was filed and thus the Request for Leave to Amend (#150.00) was granted as a matter of practice. P.B. § 10-60(a)(3).

At trial the plaintiff called Diane Weinberger of Salt Lake City, Utah, now in her 16th year as the director of the default department of Select Portfolio Servicing, Inc. (SPS). SPS is and has been the servicer for the $1, 000, 000 loan since March 2013. She stated that the prior servicer was JP Morgan Chase Bank, National Association from September 25, 2008 to March 2013 and Washington Mutual Bank up to September 25, 2008. Most of the exhibits were offered through the testimony of Diane Weinberger from her personal knowledge and as an examiner of business records. The defendants cross examined Ms. Weinberger. The plaintiff called Josephine Lewis, the foreclosure manager for the law firm of Hunt Leibert Jacobson, P.C., the law firm that instituted this foreclosure lawsuit. The defendants cross examined Josephine Lewis. The plaintiff claimed an award of attorney fees in excess of $160, 000, supported by an eighty-seven-page affidavit with attached invoices. Ex. 30. The defendants called the plaintiff's attorney as its witness on the subject of attorney fees. The plaintiff then rested. The defendants rested without calling any further witnesses or offering any exhibits. A discovery sanction had been previously issued on September 9, 2016 which stated: " Defendants are not going to call any witnesses at trial, however they reserve the right to recall any of plaintiff's witnesses." (#156.02.)

A real estate appraisal was offered into evidence without objection. The defendant did not request the right to examine John J....