Cummings Enter., Inc. v. Moutinho

211 Conn.App. 130

271 A.3d 1040

CUMMINGS ENTERPRISE, INC.

v.Manuel MOUTINHO, Trustee

AC 44437

Appellate Court of Connecticut.

Argued January 6, 2021

Officially released March 8, 2022

Kenneth A. Votre, New Haven, for the appellant (plaintiff).

James M. Nugent, Milford, for the appellee (defendant).

Prescott, Moll and Pellegrino, Js.

PER CURIAM.

The plaintiff, Cummings Enterprise, Inc., appeals from the judgment of the trial court dismissing for lack of standing its foreclosure action brought against the defendant, Manuel Moutinho, Trustee for the Mark IV Construction Co., Inc., 401 (K) Savings Plan. The court granted the defendant's motion to dismiss, concluding that the plaintiff lacked standing to bring a foreclosure action because any mortgage interest that the plaintiff once may have held with respect to the subject property, an undeveloped building lot in Stratford, had been foreclosed in an earlier foreclosure action brought by the defendant. Because the plaintiff, who was defaulted for failure to appear in the prior foreclosure action, made no effort to redeem on or before its designated law day, its mortgage interest was extinguished, and, after all law days had passed, title to the property vested in the defendant, leaving the property no longer subject to the plaintiff's mortgage.

On appeal, the plaintiff raises a number of convoluted arguments challenging the court's granting of the motion to dismiss. On the basis of our thorough review of the record, briefs, and applicable law, we conclude that the plaintiff's arguments are devoid of merit. Accordingly, we affirm the judgment of the trial court.

Although further discussion regarding the merits of the plaintiff's appeal is unwarranted, we take this opportunity briefly to address certain factual misrepresentations contained in the plaintiff's brief on appeal. The plaintiff's principal argument before the trial court regarding its standing to pursue the underlying foreclosure action was that the law days that the court set in the defendant's previous foreclosure action purportedly had passed without legal effect due to a bankruptcy stay or extension period that arose as a result of the filing of a bankruptcy petition by 10-5th, LLC, an entity that allegedly had acquired an ownership interest in the subject property. In its appellate brief, the plaintiff made the following factual assertions: "10-5th, LLC, is an entity that was a party to the previous foreclosure action and at one point held title to the subject property," and "[t]he trial court, in the previous foreclosure, was asked to reset the law days after the dismissal of 10-5th, LLC's bankruptcy proceeding." The plaintiff provided no citation to the record to support these factual assertions, although the brief contained citations to the record with respect to other factual statements. See Practice Book § 67-4.¹ In its appellee's brief, the defendant stated that these factual representations by the plaintiff were false and that it is clear from the record that 10-5th, LLC, was never a party to the defendant's foreclosure action and no one ever had asked the trial court to reset the law days after the dismissal of 10-5th, LLC's bankruptcy petition. In its reply brief, the plaintiff's only response to the defendant's assertion that the plaintiff's brief contained false factual representations was that the parties "differ somewhat in their description of the underlying facts in this case." The plaintiff again referred to 10-5th, LLC, as "one defendant" in the previous foreclosure action, implying once again, without any supporting citation to the record, that 10-5th, LLC, was a party to that action.

During oral argument before this court, the panel asked the attorney for the plaintiff, Kenneth A. Votre, about the disputed factual representations and his failure either to clarify the matter in his reply brief or, if necessary, to make corrections to the brief prior to oral argument. Although he asserted on the one hand that he and/or his staff had verified the veracity of the statements in the brief prior to oral...