Wells Fargo Bank, N.A. v. Caldrello

192 Conn.App. 1

219 A.3d 858

WELLS FARGO BANK, N.A.

v.Sandra CALDRELLO

AC 41074

Appellate Court of Connecticut.

Argued February 5, 2019

Officially released August 20, 2019

Sandra Caldrello, self-represented, the appellant (defendant).

William J. Hanlon, with whom, on the brief, was David M. Bizar, for the appellee (plaintiff).

Keller, Elgo and Harper, Js.

KELLER, J.

The self-represented defendant,¹ Sandra Caldrello, appeals from the judgment of strict foreclosure rendered in favor of the plaintiff, Wells Fargo Bank, N.A. The defendant claims that² (1) the court erred in concluding that a genuine issue of material fact did not exist with respect to the plaintiff's standing to foreclose the mortgage and rendering summary judgment as to liability in favor of the plaintiff, (2) after the court granted the motion for summary judgment with respect to liability but prior to the time that it rendered judgment of strict foreclosure, the court deprived her of her right to conduct additional discovery and her right to a new trial related to the fact that, following the rendition of summary judgment, the plaintiff attached a blank endorsement to the note at issue in this action, and (3) the court erred in granting the plaintiff's motion to strike two counts of her counterclaim alleging violations of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., and the Truth in Lending Act (TILA),³ 15 U.S.C. § 1601 et seq. We affirm the judgment of the trial court.

The following undisputed facts and procedural history are relevant to this appeal. On September 12, 2012, the plaintiff commenced this foreclosure action. The complaint alleged that on February 9, 2007, the defendant signed a promissory note in the amount of $480,000 in favor of the World Savings Bank, FSB (World Savings). The note was secured with a mortgage on property owned by the defendant known as 939 Pequot Avenue in New London. The plaintiff alleged that it was the party entitled to collect the debt evidenced by the note and the party entitled to enforce the mortgage, as it is the successor by merger to the original mortgagee, World Savings, that the defendant was in default on her obligations under the note, and that it had exercised its right to accelerate the debt and to commence this action.

Prior to rendering summary judgment as to liability in favor of the plaintiff, the court, Cosgrove, J. ,⁴ granted the plaintiff's motion to strike the defendant's revised counterclaim. The circuitous procedural journey to the striking of the defendant's counterclaim commenced on February 11, 2015, when the defendant filed her first of many sets of counterclaims and associated "supplements" and "addenda." On May 20, 2015, after the plaintiff had previously filed a series of requests for the defendant to revise her counterclaim, the defendant filed a revised counterclaim containing thirty-two counts.

On August 4, 2015, the plaintiff moved to strike all thirty-two counts of the revised counterclaim. On October 23, 2015, the defendant filed a "Defendant's Addendum to Counterclaims." The plaintiff moved to strike the addendum, arguing that the defendant had failed to satisfy the requirements of Practice Book § 10-60 and had improperly amended her revised counterclaim. Judge Cosgrove granted the plaintiff's motion to strike the addendum on December 4, 2015, simultaneously overruling the defendant's objection to the plaintiff's motion to strike her addendum.

On January 5, 2016, Judge Cosgrove issued a memorandum of decision striking the defendant's revised counterclaim. On January 20, 2016, the defendant filed a counterclaim containing thirty-one repleaded counts. The plaintiff again moved to strike all of the counts of the counterclaim. On May 3, 2016, Judge Cosgrove granted in part the plaintiff's motion, striking all but one of the defendant's repleaded counts as legally insufficient or as asserting claims on which relief may not be granted in the form of a judgment on a counterclaim. The court did not strike count twenty-nine, however, which alleged breach of contract.⁵

In its January 5, 2016 memorandum of decision, the court agreed with the plaintiff's argument that in ruling on the motion to strike, it could address the plaintiff's argument that the statutes of limitations applicable to the CUTPA and TILA causes of action barred those claims. Although a claim that an action is barred by the lapse of the statute of limitations usually must be pleaded as a special defense, and not raised by a motion to strike; see Forbes v. Ballaro , 31 Conn. App. 235, 239, 624 A.2d 389 (1993) ; see also Practice Book § 10-50 ; the court determined that the issues in this case met one of the two limited situations where the use of a motion to strike to raise the defense of the statute of limitations is permissible. See Forbes v. Ballaro , supra, at 239–40, 624 A.2d 389 ("where a statute gives a right of action which did not exist at common law, and fixes the time within which the right must be enforced, the time fixed is a limitation or condition attached to the right—it is a limitation of the liability itself as created, and not of the remedy alone" [internal quotation marks omitted] ).

Noting that the execution of the note and mortgage occurred on February 9, 2007, Judge Cosgrove, after reviewing the defendant's myriad allegations pertaining to violations of the two statutes,⁶ determined that "[c]ounts eight through ten [of the counterclaim] allege inaccurate material disclosures, as opposed to a failure to provide material disclosures [and], therefore, the defendant's right to rescind expired three years from the date of consummation or delivery of all material disclosures. While counts eight through ten allege inaccurate material disclosures, count seven alleges that the closing agent failed to provide copies of the signed closing documents. Even taking this fact in the light most favorable to the defendant—that the closing agent is an agent of the plaintiff and the closing documents are material disclosures as defined by 12 C.F.R. § 1026.23 (a) (3) (ii) —the defendant's claim is still barred by 15 U.S.C. § 1635 (f)'s statute of limitation[s].⁷ The [defendant] fails to allege any facts in [counts] seven or thirty regarding the transfer of all of the defendant's interest in the property or the sale of the property, so the date of consummation remains the time measure. More than three years elapsed between February 9, 2007 and August 31, 2012. Further, while the defendant alleged that she has the right of rescission under recoupment pursuant to TILA, she has not alleged recoupment as a matter of defense, pursuant to 15 U.S.C. § 1640 (e), but rather, as a counterclaim. Finally, equitable tolling does not apply to [count] thirty because ‘[§] 1635 (f) completely extinguishes the right of rescission at the end of the [three] year period.’ Beach v. Ocwen Federal Bank , [523 U.S. 410, 412, 118 S. Ct. 1408, 140 L. Ed. 2d 566 (1998) ]." (Footnote added.) Judge Cosgrove concluded that the statute of limitations pursuant to TILA expired on February 9, 2010. He applied the same expiration date in striking counts eight through ten alleging CUTPA violations, noting that CUTPA, a statutory cause of action that did not exist at common law, also has a limitation period of three years after the occurrence of a violation. See General Statutes § 42-110g (f). Judge Cosgrove further concluded that the defendant had failed to plead facts sufficient to demonstrate fraudulent concealment, which might otherwise toll the statute of limitations.

On January 20, 2016, the defendant filed a thirty-one count amended counterclaim, which she corrected by changing a date, on January 25, 2016. The plaintiff again moved to strike the counterclaim. Judge Cosgrove struck all of the counts of the amended counterclaim except a single breach of contract claim, agreeing with the plaintiff that the legal insufficiencies in the defendant's prior counterclaim had not been cured and that the defendant improperly had used her opportunity of pleading over pursuant to Practice Book § 10-44 to add additional claims.⁸

On June 15, 2016, the plaintiff filed a motion for summary judgment as to liability on its complaint and as to the defendant's counterclaim for breach of contract. In its memorandum of law in support of the motion, the plaintiff argued that there were no genuine issues of material fact regarding the defendant's liability under the note and the mortgage, and that summary judgment was proper because the defendant's counterclaim was legally insufficient.

During the course of this litigation, the plaintiff presented to the court and to the defendant the original promissory note and the recorded mortgage. The original note is an adjustable rate mortgage note, "pick-a-payment" loan signed by the defendant and payable to World Savings. Prior to the rendering of summary judgment, the original note had not been endorsed in any manner and remained payable by its express terms to "[World Savings], a federal savings bank, its successor and/or assignees, or anyone to whom this Note is transferred." The recorded mortgage references this promissory note.

In support of its motion for summary judgment as to liability, the plaintiff submitted an affidavit from Shae Smith, the vice president for loan documentation for the plaintiff. In her affidavit, Smith averred that she is familiar with the business records maintained by the plaintiff, which records were made at or near the time of the event recorded by the plaintiff, that it was a regular practice for the plaintiff to make those records and that her knowledge was acquired from the examination of these business records. Smith stated that the defendant executed and delivered an adjustable rate mortgage note dated February 9, 2007, in the amount of $480,000 to World Savings. She further stated that the plaintiff is the successor by merger to the mortgagee....