Wells Fargo Bank, N.A. v. Tarzia

186 Conn.App. 800

201 A.3d 511

WELLS FARGO BANK, N.A., Trustee

v.Joseph S. TARZIA et al.

AC 40229

Appellate Court of Connecticut.

Argued October 15, 2018

Officially released January 1, 2019

Joseph S. Tarzia, self-represented, the appellant (named defendant).

Christopher J. Picard, Hartford, Connecticut, for the appellee (plaintiff).

Keller, Elgo and Sullivan, Js.

KELLER, J.

This is the third appeal in this foreclosure action to reach this court in the nearly ten years this matter has been litigated. The named defendant Joseph S. Tarzia¹ appeals from the trial court's denial of his motion to open and vacate the court's judgment of strict foreclosure. Although the self-represented² defendant's appellate brief is not a model of clarity, we construe his claims to be that the court (1) erred by denying his motion to open and vacate based on new evidence of fraud, (2) erred by concluding that the plaintiff possessed the note when it filed this foreclosure action, and (3) violated his right to due process by failing to view his case in its entirety as mandated by the mosaic rule. We disagree.

The following relevant facts and procedural history inform our review. On or about June 22, 2007, the defendant executed a note for a loan in the amount of $1,334,000. As security for payment of the note, he executed a mortgage on his property at 138 North Lake Drive in Stamford. On or about February 18, 2009, the plaintiff, Wells Fargo Bank, N.A., as trustee for the certificateholders of Structured Asset Mortgage Investments II, Inc., Structured Asset Mortgage Investments II Trust 2007-AR4, Mortgage Pass-Through Certificates, Series 2007-AR-4, initiated this foreclosure action alleging that the note was in default. In its complaint, the plaintiff indicated that it had elected to accelerate the balance due on the note, declared the note to be due in full, and sought to foreclose on the mortgage securing the note. On May 7, 2012, after extensive litigation, the trial court granted the plaintiff's motion for summary judgment as to liability and subsequently rendered a judgment of strict foreclosure on May 28, 2013. The defendant appealed from that judgment, and, on June 3, 2014, this court affirmed the trial court's judgment of strict foreclosure. See Wells Fargo Bank, N.A. v. Tarzia , 150 Conn. App. 660, 667, 92 A.3d 983, cert. denied, 314 Conn. 905, 99 A.3d 635 (2014).

On September 24, 2015, the plaintiff filed a motion to reset the law day. Although the defendant did not object to that specific motion, on March 16, 2016, he filed a motion to vacate the judgment and dismiss the action based on various challenges to the plaintiff's standing, to which the plaintiff objected. On January 9, 2017, the trial court ultimately denied the defendant's motion to vacate and dismiss. The defendant filed a motion to reargue on January 27, 2017, which the court denied on February 16, 2017. On February 14, 2017, the court granted the plaintiff's September 24, 2015 motion to reset the law day, setting it to March 14, 2017.

On February 15, 2017, the plaintiff filed a motion to terminate any prospective appellate stay should the defendant decide to appeal. On February 24, 2017, the defendant timely appealed to this court from the trial court's denial of his motion to vacate and dismiss. On February 27, 2017, three days after the defendant filed that appeal, the trial court granted the plaintiff's motion to terminate the appellate stay. On March 6, 2017, the defendant filed in this court a motion for an emergency stay of execution and a motion for review of the trial court's order terminating the appellate stay. Additionally, on March 9, 2017, the defendant filed a motion in the trial court requesting reargument on the court's order terminating the appellate stay and a new motion to open and vacate the judgment based on allegations of fraud.

On March 10, 2017, this court denied the defendant's motion for an emergency stay of execution of judgment. This court granted review with respect to the defendant's motion for review of the trial court's order granting the termination of the appellate stay but denied the relief requested therein. Thereafter, on March 13, 2017, the trial court granted the defendant's motion to reargue the court's order terminating the appellate stay but refused to reimpose a stay. On the same day, the trial court denied the defendant's motion to open and vacate the judgment based on fraud. That denial is the subject of this appeal.³ Additional facts will be set forth as necessary.

I

Turning to the defendant's first claim on appeal, he argues that the court erred by not granting his motion to open and vacate based on new evidence of fraud. He also argues that the court erred by not giving him "a proper hearing of his motion" and "failed to consider brand new evidence." We disagree.⁴

We briefly set forth additional facts necessary for this claim. On March 9, 2017, the defendant filed his motion to open and vacate based on allegations of fraud. Therein, he appeared to set forth allegations of fraud resulting from defective releases of prior mortgages from other lenders. In particular, he appeared to claim that the loan, which is the subject of this action, was not effective because a prior mortgage was not paid off due to an alleged fraudulent release.⁵ He argued that a new book was released that "tipped him off" to these alleged instances of fraud. At the conclusion of his motion, his sole request was for the court to open and vacate the judgment of strict foreclosure. On March 13, 2017, the court denied his motion.

"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, it is clear that the defendant's motion to open was filed well beyond the twenty day appeal period from when the trial court rendered the judgment of strict foreclosure. The defendant already has appealed from the underlying judgment of strict foreclosure, and this court affirmed the trial court's decision. See Wells Fargo Bank, N.A. v. Tarzia , supra, 150 Conn. App. at 667, 92 A.3d 983. Therefore, we will review the defendant's claim under an abuse of discretion standard and will not address the merits of the judgment of strict foreclosure.

"In determining whether the trial court abused its discretion [in denying a motion to open], this court must make every reasonable presumption in favor of its action.... The manner in which [this] discretion is exercised will not be disturbed so long as the court could reasonably conclude as it did." (Citations omitted; internal quotation marks omitted.) Gillis v. Gillis , 214 Conn. 336, 340–41, 572 A.2d 323 (1990) ; see also Flater v. Grace , 291 Conn. 410, 419, 969 A.2d 157 (2009).

"When 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 ." (Emphasis in original.) Wells Fargo Bank, N.A. v. Owen , 174 Conn. App. 102, 108–109, 165 A.3d 275, cert. granted, 327 Conn. 955, 171 A.3d 1051 (2017) (appeal withdrawn July 24, 2018), citing 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." (Internal quotation marks omitted.) Id., at 108, 952 A.2d 1. To be entitled to an evidentiary hearing, the defendant is required to "make some threshold showing that his claims had substance ...." Chapman Lumber, Inc. v. Tager , supra, at 108, 952 A.2d 1 ; see Bruno v. Bruno , 146 Conn. App. 214, 231, 76 A.3d 725 (2013) ("[i]f the moving party demonstrates to the court that there is probable cause to believe that the judgment was obtained by fraud, the court may permit discovery").

We first address the defendant's argument that the trial court erred by not giving him "a proper hearing of his motion" and "failed to consider brand new evidence." Although the defendant argues that he was denied a proper hearing, we have found no indication in the record before us that the defendant actually requested one. In the defendant's motion, he simply entreated the court to open and vacate the judgment of strict foreclosure for the reasons he provided therein. Absent from the record is a request that he be given an evidentiary hearing or oral argument on it.⁶ The record demonstrates that the court did in fact hold hearings on the motions for which the defendant made requests. For example, the defendant filed a motion for an immediate hearing to reset the law day, following which the court held a hearing. Additionally, the court provided the defendant's counsel with an opportunity to make arguments as to why reargument was warranted with respect to the court's order granting the plaintiff's motion to terminate the appellate stay.

There is also no indication in the record presented for review that the defendant requested oral argument or an evidentiary hearing during any proceeding...