Wysocki v. Bank of America, N.A.

James E. WYSOCKI, Administrator of the Estate of Edward B. Wysocki, Jr. v. BANK OF AMERICA, N.A. et al.

No. CV176013293S

Superior Court of Connecticut, Judicial District of Tolland, Rockville

July 10, 2018

UNPUBLISHED OPINION

OPINION

Farley, J.

On November 14, 2017, the plaintiff, James E. Wysocki, in his capacity as Administrator of the Estate of Edward B. Wysocki Jr. (estate), filed this appeal from a decree of the Probate Court for the district of Vernon-Ellington that denied the plaintiff’s October 11, 2017 "Revised Motion for Clarification and Modification of Orders." The defendants, Bank of America, N.A. (Bank of America), TCI Realty, LLC (TCI), and Connecticut Attorneys Title Insurance Company (CATIC), move to dismiss the appeal for lack of subject matter jurisdiction. A number of the parties’ arguments do not implicate the court’s subject matter jurisdiction. In particular, the defendants attack the propriety of the October 11, 2017 motion on several grounds. In the court’s view, the arguments that actually implicate the court’s subject matter jurisdiction can be bifurcated into two parts: (I) the appeal is untimely; and (II) the plaintiff is not aggrieved by the order. The court does not address the merits of the parties’ contentions to the extent they do not implicate the court’s jurisdiction to entertain the appeal. As discussed below, the court concludes that the appeal is timely and the plaintiff is aggrieved. The motions to dismiss are denied.

FACTS

On April 9, 2016, the decedent, Edward B. Wysocki, Jr., died intestate and the plaintiff was appointed administrator of the estate on April 18, 2016. One of the principal assets in the estate was the decedent’s former residence located at 8 Lord Road in Ellington (property). The property was encumbered by a mortgage, dated December 21 1992,^[1] and the decedent executed a note dated December 21, 1992, to secure the mortgage in favor of Arbor National Mortgage. On July 7, 1995, Arbor National Mortgage assigned the mortgage to Bank of America.^[2] On July 22, 2016, the plaintiff petitioned the Probate Court for permission to sell the property to TCI for $75,000, which was granted by the Probate Court, Purnell, J., on July 25, 2016. In advance of the August 18, 2016 closing date, the plaintiff attempted to contact Bank of America in an effort to obtain confirmation of the note and mortgage as well as the payoff information. It is a matter in dispute between the parties whether the plaintiff received the requested information.

On August 18, 2016, pursuant to the plaintiff’s motion, the Probate Court held a hearing and received evidence regarding the note and mortgage information sought from Bank of America. Although Bank of America was provided notice of this hearing, it did not appear. On the same date, the Probate Court issued a decree ordering, among other things, that Bank of America produce the original promissory note and mortgage documents, and authorizing the plaintiff to place the "mortgage payoff funds" into escrow to be held until Bank of America provided the requested documents and a release of the mortgage. Also on August 18, 2016, the closing on the property went forward. The estate transferred the property to TCI by way of warranty deed^[3] and, in return, TCI presented the plaintiff and his attorney with a check payable to the estate in the amount of $29,551.68, and a check payable to Bank of America in the amount of $35,224.72. At some point thereafter, the check payable to Bank of America or the funds derived therefrom, was placed into escrow. TCI has held title, possession, and control of the property since that date.

On September 21, 2016, the Probate Court, sua sponte, held another hearing in an attempt to "expedite the exchange of the original promissory note and mortgage" and to resolve the legitimacy of the assignment of the note and mortgage to Bank of America so that it may receive the funds being held in escrow. Bank of America was again provided notice but did not appear. During the hearing, the Probate Court successfully contacted Bank of America by telephone and granted Bank of America’s oral request to continue the hearing until September 26, 2016, so that it may appear and produce the original note and mortgage as ordered. Nevertheless, Bank of America failed to appear at the hearing scheduled for September 26, 2016.

On September 28, 2016, the Probate Court issued a decree finding that Bank of America failed to appear at the previous three hearings and to produce the note and mortgage. The decree ordered that Bank of America "[is] in default of [its] duties and obligations to this Court, as set forth in this Court’s previous Orders, whereupon the obligations of the Estate to [Bank of America] are declared void as to the Estate and upon the Administrator thereof ..." The decree further ordered that the "escrow funds held for taxes" and the "mortgage payoff funds" are to be remitted to the plaintiff.^[4] No party appealed or moved to modify this decree.

On November 17 and 30, 2016, the plaintiff made formal written demands to TCI to immediately disburse the mortgage payoff funds, in the amount of $35,224.72, to the estate pursuant to the September 28, 2016 decree. On January 5, 2017, TCI responded that it would not disburse the funds, which were still being held in escrow, because the matter was a title claim due to the fact that the September 28, 2016 decree was recorded in the Ellington Land Records and, thus, was being handled by CATIC. On February 2, 2017, the Probate Court served TCI and Bank of America with notices to appear on February 21, 2017, to provide the court with an explanation as to why TCI continued to hold the mortgage payoff funds in escrow. On February 13, 2017, TCI filed a motion for order requesting a decree from the Probate Court ordering that the escrow funds be released to Bank of America and that the plaintiff must pay any remaining balance incurred as a result of the delay caused by the plaintiff. On February 16, 2017, the plaintiff filed a motion to strike TCI’s motion.

On February 21, 2017,^[5] the Probate Court held a hearing and entered a decree finding that "[a] closing for the sale of the [property] was held on or about August 18, 2016. The original promissory note was not produced at that time and no payoff check was subsequently mailed to Bank of America the current mortgage holder ... Bank of America is hereby ordered to bring the original promissory note to the hearing and when they are paid for the balance of the mortgage that was owing on the date of $35,224.72 they shall mark said promissory note as paid and exchange it for the payoff check." On March 6, 2017, the plaintiff filed a comprehensive posthearing brief objecting to further proceedings, challenging the impropriety of the note, and requesting that the court enforce its September 28, 2016 decree. On April 12, 2017, the plaintiff filed a motion for clarification and modification of the February 21, 2017 decree requesting that the Probate Court enforce the September 28, 2016 decree because it is valid and unchallenged. The plaintiff’s April 12, 2017 motion also requests that the Probate Court consider the arguments posited in his March 6, 2017 posthearing brief.

On April 18, 2017, the Probate Court held a status conference at which Bank of America appeared, produced, and authenticated the promissory note. Bank of America also cancelled the note by writing "Paid in full: 4/18/17 JFD per court order, Purnell, J. 4/18/17 Ellington Probate Court." At the same status conference, TCI provided a check payable to Bank of America for the mortgage payoff funds in the amount of $35,224.72.

On April 19, 2017, the Probate Court entered a decree finding that: "Bank of America has appeared with the original Note and authorization ... to mark the note ‘Paid in Full’ ... and a fully executed Release of Mortgage ..." The court further found that "TCI ... has appeared with a check made out to Bank of America for the mortgage payoff in the amount of $35,224.72" and also that the plaintiff "has argued that the Court order of September 28, 2016 absolves the Estate of any responsibility to pay the mortgage." The April 19, 2017 decree ordered that the September 28, 2016 decree be modified to now direct that "TCI is to turn over the said check in the amount of $35,224.72 to the Bank of America," that Bank of America "is to turn over the Note marked ‘Paid in Full’ " to the plaintiff, that Bank of America "provide a statement of the escrow account for 2016 and 2017" to the plaintiff and return the balance to the plaintiff, and that "[t]he Estate shall have no further liability for any reason" to TCI or Bank of America.

On April 21, 2017, the Probate Court entered a decree granting the plaintiff’s motion to strike TCI’s February 13, 2017 motion for order because it was moot. The decree found that: TCI had filed a motion concerning the payoff of the mortgage; the plaintiff filed a motion to strike TCI’s motion; TCI appeared with a check made out to Bank of America for the mortgage payoff; the check was exchanged for a release of mortgage and the original note marked paid in full; and, thus, "[t]here is no longer any case or controversy." On April 21, 2017, the Probate Court also entered a separate supplemental decree opining that the April 19, 2017 decree inadvertently omitted the following additional order: Bank of America shall provide a listing of all transactions concerning the escrow account for 2016 and 2017, and shall remit the balance thereof to the plaintiff within ninety days.^[6]

On May 25, 2017, the plaintiff filed an appeal to the Superior Court from the April 21, 2017 decree alleging that the Probate Court erred in failing to enforce the ...