Wells Fargo Bank, N.A v. Ferraro

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WELLS FARGO BANK, N.A. v. THOMAS
J. FERRARO ET AL.
(AC 42099)
Elgo, Devlin and Sheldon, Js.

Syllabus

The plaintiff bank, W Co., sought to foreclose a mortgage on certain real
property owned by the defendants F and D following their alleged default
on the promissory note secured by the mortgage. Thereafter, T Co.,
which had been substituted as the plaintiff in the action, filed a motion
for summary judgment as to liability on the ground that there was no
genuine issue as to any material fact and that it was entitled to judgment
as a matter of law. In response, the defendants filed an objection,
asserting that a genuine issue of material fact existed as to whether W Co.
had complied with the notice provisions (§ 8-265ee) of the Emergency
Mortgage Assistance Program, which require a mortgagee to provide
certain specific notice to the mortgagor before it can commence a
foreclosure of a qualifying mortgage under the program. At the hearing
on the motion for summary judgment, T Co. presented the live testimony
of two witnesses and introduced five exhibits into evidence in support
of its contention that the notice provisions of the program had been
complied with, and both of the defendants testified that they did not
receive the required notice. At the conclusion of the hearing, the trial
court, on the basis of the credible testimony and the evidence, found
that there had been full compliance with the notice provisions of the
program. The court therefore granted T Co.’s motion for summary judg-
ment as to liability on the ground that there was no genuine issue of
material fact regarding the sole issue in dispute. Subsequently, the trial
court granted T Co.’s motion for a judgment of strict foreclosure and
rendered judgment thereon, from which the defendants appealed to this
court. Held that the trial court improperly permitted and considered
live testimony from witnesses during the evidentiary hearing on T Co.’s
motion for summary judgment as to liability and the defendants’ objec-
tion to that motion; by weighing the credibility of the witnesses who
testified and assessing the strength of the evidence submitted at the
evidentiary hearing in deciding the motion, that court improperly
decided a genuine issue of material fact, which rendered the granting
of the motion for summary judgment improper.
Argued October 8—officially released November 19, 2019

Procedural History

Action to foreclose a mortgage on certain real prop-
erty owned by the named defendant et al., and for other
relief, brought to the Superior Court in the judicial dis-
trict of Ansonia-Milford, where Wilmington Trust,
National Association, as trustee for MFRA Trust 2015-
2, was substituted as the plaintiff; thereafter, the court,
Hon. John W. Moran, judge trial referee, granted the
substitute plaintiff’s motion for summary judgment as to
liability; subsequently, the court granted the substitute
plaintiff’s motion for a judgment of strict foreclosure
and rendered judgment thereon, from which the named
defendant et al. appealed to this court. Reversed; fur-
ther proceedings.
William J. Whewell, with whom, on the brief, was
Dorian D. Arbelaez, for the appellants (named defen-
dant et al.).
Benjamin T. Staskiewicz, for the appellee (substi-
tute plaintiff).
Opinion

PER CURIAM. The defendants Thomas J. Ferraro
and Danielle Ferraro1 appeal from the judgment of strict
foreclosure rendered by the trial court in favor of the
substitute plaintiff, Wilmington Trust, National Associa-
tion, as trustee for MFRA Trust 2015-2.2 The defendants
claim that the trial court erred when it granted summary
judgment as to liability in favor of the plaintiff after it
held an evidentiary hearing, and weighed and relied on
the evidence adduced at that hearing, in resolving an
issue of material fact in favor of the plaintiff. We reverse
the judgment of the trial court.
On July 1, 2013, the original plaintiff, Wells Fargo
Bank, N.A. (Wells Fargo), filed this foreclosure action
alleging that the defendants had executed a promissory
note and mortgage on certain property in its favor and
that the defendants had defaulted on the note. The
plaintiff thereafter filed a motion for summary judgment
as to liability only on the foreclosure complaint against
the defendants, arguing that there was no genuine issue
as to any material fact and, therefore, that it was entitled
to judgment as a matter of law. In response, the defen-
dants filed an objection on the ground that a genuine
issue of material fact existed as to whether Wells Fargo
had complied with the notice provisions of the Emer-
gency Mortgage Assistance Program (EMAP), General
Statutes § 8-265cc et seq.3
On July 12, 2018, the court held an evidentiary hearing
‘‘limited to a singular issue by virtue of the defendants’
objection to [the] plaintiff’s motion for summary judg-
ment dated May 14, 2018, raising an objection based
on a—whether it was proper service of the EMAP
notice.’’4 At that hearing, the plaintiff presented the live
testimony of two witnesses and introduced five exhibits
into evidence in support of its contention that it had
complied with the notice provisions of EMAP. Both of
the defendants testified that they did not receive an
EMAP notice.
At the conclusion of the hearing, the court held in
relevant part: ‘‘Based on the credible testimony and
the evidence, the court finds that there has been full
compliance with [General Statutes §] 8-265ee.’’ On that
basis, the court determined that there was no genuine
issue of material fact and thus granted summary judg-
ment as to liability only in favor of the plaintiff. The
court thereafter granted the plaintiff’s motion for judg-
ment of strict foreclosure, from which the defendants
now appeal.
On appeal, the defendants claim that the trial court
improperly permitted, considered and relied on live tes-
timony from witnesses at an evidentiary hearing on the
plaintiff’s motion for summary judgment. We agree.
This court’s decision in Magee Avenue, LLC v. Lima
Ceramic Tile, LLC, 183 Conn. App. 575, 579–80, 193
A.3d 700 (2018), is dispositive of the defendants’ claim
on appeal. In holding that the trial court improperly
permitted and considered live testimony during the
hearing on the motion for summary judgment, the court
in Magee Avenue, LLC, set forth the following reason-
ing: ‘‘The fundamental purpose of summary judgment
is preventing unnecessary trials. . . . If evidentiary
presentations and testimony were to be permitted, the
intent to reduce litigation costs by way of the summary
judgment procedure would be undermined, and there
may as well be a trial on the merits. . . . A summary
judgment should be summary; that is, made in a prompt,
simple manner without a full-scale trial. The opposition
to such a motion may include the filing of affidavits or
other documentary evidence; Practice Book § 17-45; but
does not include the live testimony of any witnesses.
. . .
‘‘Here, it is undisputed that the defendant testified
regarding the contents of his affidavit and his personal
knowledge of it. The court’s consideration of this testi-
mony necessarily required it to make credibility deter-
minations and factual findings, a reality supported by
the court’s memorandum of decision, in which it stated
that the court finds [that] the defendant . . . did not
enter into an agreement with the plaintiff . . . in his
individual capacity but only as the managing member
of . . . [the defendant]. . . . Because the court made
credibility determinations, there were axiomatically
genuine issues of material fact, and summary judgment
therefore was improper.’’ (Citations omitted; emphasis
in original; internal quotation marks omitted.) Id.,
585–86.
As in Magee Avenue, LLC, the trial court in this case
held an evidentiary hearing on the plaintiff’s motion
for summary judgment and the defendants’ objection
thereto, during which it permitted and considered live
testimony from witnesses. The court weighed the credi-
bility of the witnesses who testified and assessed the
strength of the evidence submitted at the evidentiary
hearing in deciding that motion, and, in so doing,
improperly decided a genuine issue of fact. On this
basis, the summary judgment cannot stand.
The judgment is reversed and the case is remanded
for further proceedings according to law.
1
Gaylord Hospital, Diagnostic Imaging of Milford, P.C., Milford Hospital,
and M&T Bank/M&T Credit Services, LLC, are also defendants in this action.
Because they are not parties to this appeal, any reference herein to the
defendants refers only to Thomas J. Ferraro and Danielle Ferraro.
2
On July 12, 2018, the court granted the named plaintiff’s motion to
substitute Wilmington Trust, National Association, as trustee for MFRA
Trust 2015-2 (Wilmington Trust), as the plaintiff. We therefore refer in this
opinion to Wilmington Trust as the plaintiff.
3
General Statutes § 8-265ee (a) provides: ‘‘On and after July 1, 2008, a
mortgagee who desires to foreclose upon a mortgage which satisfies the
standards contained in subdivisions (1), (9), (10) and (11) of subsection (e)
of section 8-265ff, shall give notice to the mortgagor by registered, or certified
mail, postage prepaid at the address of the property which is secured by
the mortgage. No such mortgagee may commence a foreclosure of a mort-
gage prior to mailing such notice. Such notice shall advise the mortgagor
of his delinquency or other default under the mortgage and shall state that
the mortgagor has sixty days from the date of such notice in which to (1)
have a face-to-face meeting, telephone or other conference acceptable to
the authority with the mortgagee or a face-to-face meeting with a consumer
credit counseling agency to attempt to resolve the delinquency or default
by restructuring the loan payment schedule or otherwise, and (2) contact
the authority, at an address and phone number contained in the notice, to
obtain information and apply for emergency mortgage assistance payments
if the mortgagor and mortgagee are unable to resolve the delinquency or
default.’’
4
On April 30, 2018, the trial court denied a motion to dismiss in which
the defendants claimed that the plaintiff failed to comply with the EMAP
notice provisions and that that failure deprived the court of subject matter
jurisdiction to hear this case. The record is thus clear that the July 12, 2018
evidentiary hearing was limited to the plaintiff’s motion for summary
judgment.