Homebridge Fin. Serv., Inc. v. Jakubiec

309 A.3d 1223

223 Conn.App. 517

HOMEBRIDGE FINANCIAL SERVICES, INC.

v.Thomas M. JAKUBIEC

(AC 45453)

Appellate Court of Connecticut.

Argued October 5, 2023

Officially Released January 30, 2024

Edward Bona, for the appellant (defendant Robyn Jakubiec).

Jeffrey M. Knickerbocker, for the appellee (substitute plaintiff).

Suarez, Seeley and Norcott, Js.

NORCOTT, J.

₅₂₁In this foreclosure appeal, the defendant Robyn Jakubiec, the widow of the defendant Thomas M. Jakubiec (decedent), presents a myriad of challenges in an effort to overturn the judgment of strict foreclosure rendered following the granting of a motion for summary judgment as to liability in favor of the substitute plaintiff, Freedom Mortgage Corporation.¹ We conclude that several of the defendant’s claims are inadequately briefed, and the remainder are without merit. Accordingly, we affirm the judgment of the trial court and remand the case for the sole purpose of setting new law days.

[1] The following facts and extensive procedural history are relevant to this appeal. Homebridge Financial Services, Inc. (Homebridge), commenced this action against the decedent on April 16, 2015, via abode service. In its complaint, Home-bridge alleged that the decedent owed Equity Source Home Loans, LLC, $212,000, as evidenced by a promissory note dated June 28, 2010, and that he had executed a mortgage for property located at 28 Nelkin Road in Colchester to secure this note. On February 7, 2014, the mortgage was as-signed ₅₂₂to Real Estate Mortgage Network, Inc., which subsequently changed its name to Homebridge. The note was in default as a result of nonpayment of the required monthly installments since July 1, 2013, and the unpaid balance totaled $201,575.15, plus interest, late charges and collection costs. Near the time of the commencement of this action, Homebridge recorded a lis pendens on the land records regarding the property.²

The decedent died two days after he had been served with process commencing the present action. On June 3, 2015, the court granted Homebridge’s motion to cite in "the State of Connecticut, Department of Revenue Services and The Widow, Heirs, Beneficiaries, Representatives or Creditors of [the decedent] …. " On June 26, 2015, Homebridge filed an amended complaint and included these parties.

On September 4, 2015, Homebridge moved for a judgment of strict foreclosure. Three weeks later, the defendant filed an objection, claiming that she had "received no papers or notice in connection with this matter" and asserting that she had notified the plaintiff’s counsel of her contact information. On October 9, 2015, the defendant filed a motion to dismiss alleging a lack of personal jurisdiction due to ineffective service of process. On November 23; 2015, the court granted the defendant’s motion to dismiss with respect to the estate of the decedent and noted that the case remained pending as to the other parties cited in by Homebridge. Various filings ensued.

₅₂₃On April 21, 2016, Homebridge filed a motion for summary judgment as to liability pursuant to Practice Book § 17-44. Specifically, it contended: "Said note and mortgage are now in default by virtue of nonpayment of the monthly installments of principal and interest due on July 1, 2013, and each and every month thereafter, and the plaintiff has exercised its option to declare the entire balance of said note due and payable." On May 12, 2016, the defendant objected to Homebridge’s motion for summary judgment and filed an answer and special defenses, including unclean hands, lack of authority to assign the mortgage, destruction of the original note, anticipatory repudiation, and lack of standing. On June 21, 2016, the court granted a motion to substitute the plaintiff for Homebridge, as the plaintiff had acquired the right to collect the debt due on the loan in foreclosure.

[2, 3] On September 29, 2016, the court denied the motion for summary judgment, but, after granting the plaintiff’s motion for reconsideration, the court subsequently granted the motion for summary judgment with respect to liability on December 21, 2016.³ The court determined that the plaintiff had demonstrated that it was the holder of the note and therefore was entitled to pursue this foreclosure action. The court also determined that the plaintiff had established a prima facie case and that the note had been in default for nonpayment since July 1, ₅₂₄2013. It further concluded that the defendant failed to present evidence to support her special defenses. On February 14, 2017, the court rendered a judgment of strict foreclosure, finding that the property’s fair market value was $260,000 and the total debt was $274,083.08.

On April 26, 2017, the plaintiff moved to open the judgment and extend the law days to allow for additional time "to review a loss mitigation package." The court granted this motion on May 8, 2017. Additional motions to open were granted and new law days were set. On March 22, 2018, the defendant moved to open and vacate the judgment, claiming that she successfully had entered into a modification agreement and made the three trial payments, as well as the first installment of the new loan agreement offered by the plaintiff, which required a monthly payment of $943.35.⁴ The defendant further contended that the plaintiff had sent her a loan modification agreement, which she had executed and returned. The plaintiff objected, arguing that the defendant was neither a borrower on the loan nor a titled owner, and, therefore, the modification was null and void and not a proper ground for opening and vacating the judgment. The court granted the defendant’s motion to open and extended the law days. On May 25, 2018, the defendant filed a motion to open the judgment and extend the law days. The defendant claimed that the Probate Court had issued an order granting her a 100 percent interest in the property.⁵ The court granted this motion and set new law days.

The plaintiff moved to open the judgment on July 16, 2018, for the purpose of allowing additional time for ₅₂₅the completion of a trial modification of the loan agreement,⁶ which the court granted, setting new law days. Additional motions to open and the setting of new law days ensued.

On November 18, 2019, the defendant filed a motion stating that she had complied with a court order to provide the plaintiff with certain documents and sought the enforcement of the new mortgage agreement, pursuant to Audubon Parking Associates Ltd. Partnership v. Barclay & Stubbs, Inc., 225 Conn. 804, 811, 626 A.2d 729 (1993) (Audubon). Specifically, she contended that she had submitted a completed assumption package, including the required documentation, executed a mortgage in her name, and made a series of scheduled trial payments, which the plaintiff had failed to apply. The plaintiff objected on November 27, 2019, claiming that there was no settlement to enforce and no grounds to vacate the judgment. It explained that, at the time the defendant executed the loan modification agreement, the defendant lacked legal title to the property, and it rejected any settlement agreement on that basis. It also argued that this modification lacked consideration. More recently, in April, 2019, the plaintiff offered a trial period plan to the defendant, which required three payments of $1750.36. After the defendant failed to make these required payments, the plaintiff denied the defendant a permanent modification.

On December 2, 2019, the court sustained the plaintiff’s objection with respect to the motion to enforce the settlement and overruled it with respect to the motion to open. It also assigned the case to the foreclosure mediation program. On September 10, 2021, following several sessions, a premediation report was issued by ₅₂₆a foreclosure mediator, terminating the mediation as a result of the defendant’s failure to submit certain documents.

On June 28, 2021, the defendant filed a motion for nonsuit pursuant to Practice Book § 14-3,⁷ claiming that the plaintiff failed (1) to abide by the terms of the parties’ settlement agreement, (2) to comply with a September 24, 2020 standing order by filing a federal mortgage foreclosure moratorium affidavit within fourteen days, and (3) to comply with the June 10, 2021 order requiring the filing of the federal mortgage foreclosure moratorium affidavit by June 25, 2021. In this motion, the defendant further stated that the plaintiff repeatedly had returned payments the defendant made to the plaintiff via checks made out to the decedent, rather than to the defendant. In addition to an order of nonsuit, the defendant requested reasonable attorney’s fees. One day later, the plaintiff filed the federal mortgage foreclosure moratorium affidavit.

On July 9, 2021, the plaintiff filed an objection to the motion for nonsuit. After summarizing the lengthy procedural history of this case, the plaintiff argued that a nonsuit was not warranted because its delay in filing the federal mortgage foreclosure moratorium affidavit was not the result of any bad faith.⁸ On August 2, 2021, the court denied the defendant’s motion for nonsuit.

[4, 5] On March 21, 2022, the plaintiff filed a motion for a judgment of strict foreclosure.⁹ Ten days later, the ₅₂₇defendant filed an objection to the plaintiff’s motion for a judgment of strict foreclosure. In her objection, the defendant contended that the required notice, pursuant to the Emergency Mortgage Assistance Program (DMAP), General Statutes §§ 8-265cc through 8-265kk,¹⁰ was not provided to the decedent prior to the commencement of this foreclosure action, and, as a result, the court lacked subject matter jurisdiction.¹¹ Additionally, the defendant iterated her claims that the plaintiff ₅₂₈had returned payments she made via a check issued to the decedent and that the plaintiff’s actions demonstrated an attempt "to walk away from the settlement it had offered …. " The defendant further maintained that the plaintiff...