Wells Fargo Bank Minnesota, N.A. v. Russo , 148 Conn. App. 302 ( 2014 )

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WELLS FARGO BANK MINNESOTA, N.A. v. STEVEN
RUSSO ET AL.
(AC 35354)
Gruendel, Lavine and Pellegrino, Js.
Argued December 10, 2013—officially released February 18, 2014
(Appeal from Superior Court, judicial district of
Hartford, Hon. Robert Satter, judge trial referee [motion
for summary judgment]; Vacchelli, J. [motions to open,
judgment of foreclosure].)
Steven Russo, self-represented, the appellant
(named defendant).
Marissa I. Delinks, with whom, on the brief, were
Valerie N. Doble and Martha Croog, for the appellee
(plaintiff).
Opinion
PER CURIAM. In this foreclosure action, the self-
represented defendant Steven Russo1 appeals from the
judgment of the trial court granting the motion of the
plaintiff, Wells Fargo Bank, N.A.,2 to open a judgment
of foreclosure by sale and denying his motion to open
that judgment. He claims that the court abused its dis-
cretion in so doing. We affirm the judgment of the
trial court.
The relevant facts are largely undisputed. On Septem-
ber 15, 2003, the defendant and his wife executed a
promissory note in favor of the plaintiff’s predecessor
in interest in the principal amount of $288,750, which
was secured by a mortgage on real property known as
71 Kingsbridge in Avon (property). When they defaulted
on their obligations thereunder, a foreclosure action
commenced in the summer of 2004. After a default
judgment entered against them for failure to plead, the
court rendered the first of mutiple judgments of foreclo-
sure by sale on December 12, 2005.
On November 11, 2008, the defendant and his wife
entered into a loan modification agreement with Ameri-
can Home Mortgage Servicing, Inc., the plaintiff’s loan
servicer, regarding the note and mortgage on the prop-
erty. That agreement provided, inter alia, that (1) the
outstanding arrearage on the loan would be added to
the principal balance, (2) the defendant and his wife
would be permitted to make interest only payments for
a period of five years, (3) the interest rate on those
payments would be reduced from the existing rate of
7.5 percent to a fixed rate of 5 percent for that five year
period, and (5) no fees would be assessed against them
to complete the loan modification. Pursuant to ‘‘Sched-
ule A’’ of that agreement, which the defendant and his
wife initialed, the new principal balance as of October
1, 2008, was $335,360.30.
In July, 2010, the court entered an order returning
the plaintiff’s foreclosure action to pleading status, and
the defendant filed an answer and a special defense.
The plaintiff subsequently filed a motion for summary
judgment as to liability, which the court granted. The
court further denied the defendant’s motion for reargu-
ment and reconsideration, as well as two motions to
dismiss. The plaintiff then filed a motion for a judgment
of foreclosure3 and the court, on July 18, 2011, rendered
a judgment of foreclosure by sale. From that judgment,
the defendant appealed to this court, which affirmed
said judgment. Wells Fargo Bank Minnesota, N.A. v.
Russo, 135 Conn. App. 903, 41 A.3d 1208, cert. denied,
306 Conn. 901, 52 A.3d 728 (2012). This court thus
remanded the matter to the trial court ‘‘for the purpose
of setting a new sale date.’’ Id.On September 12, 2012, this court summarily dis-
missed a second appeal filed by the defendant in the
present case; he did not seek reconsideration of that
ruling. On October 16, 2012, the plaintiff filed a motion
to open and reenter the July 18, 2011 judgment of fore-
closure in light of the foregoing proceedings. In
response, the defendant on December 5, 2012, filed a
motion to open and set aside the judgment of foreclo-
sure ‘‘to allow [him] to motion the court for the opportu-
nity to receive foreclosure mediation.’’ At that time,
the defendant also filed with the court a foreclosure
mediation request. In an order issued on January 2,
2013, the court denied the defendant’s motion. The
court further granted the plaintiff’s motion to open and
reenter the judgment of foreclosure, setting a new sale
date of March 23, 2013, and noting that ‘‘all other terms
of the prior judgment remain in effect.’’
The defendant now appeals from those determina-
tions, claiming principally that the court improperly
granted the plaintiff’s motion to open and improperly
denied his motion to open the judgment of foreclosure
by sale. It is well established that ‘‘[a] motion to open
and vacate a judgment . . . is addressed to the [trial]
court’s discretion, and the action of the trial court will
not be disturbed on appeal unless it acted unreasonably
and in clear abuse of its discretion. . . . In determining
whether the trial court abused its discretion, 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.) Walton v. New Hart-
ford, 223 Conn. 155, 169–70, 612 A.2d 1153 (1992); see
also Union Trust Co. v. Roth, 58 Conn. App. 481, 481,
755 A.2d 239 (2000) (‘‘[w]hether to grant a motion to
open [a judgment of foreclosure by sale] rests in the
discretion of the trial court’’).
The defendant contends that the court improperly
granted the plaintiff’s motion to open in contravention
of Practice Book § 71-6.4 He is mistaken. Practice Book
§ 71-6 provides in relevant part that ‘‘any stay of pro-
ceedings which was in effect during the pendency of
the appeal shall continue until the time for filing a
motion for reconsideration has expired,’’ which, pursu-
ant to Practice Book § 71-5, is ‘‘ten days from the date
when the decision or any order being challenged offi-
cially is released.’’ This court dismissed the appeal at
issue on September 12, 2012, and the defendant there-
after did not file a timely motion for reconsideration.
Accordingly, the stay of proceedings provided for in
§ 71-6 was not in effect when the plaintiff on October
16, 2012, moved to open the judgment of foreclosure.
Moreover, we note that the foreclosure proceeding
against the defendant and his wife originally was com-
menced in 2004, nearly a decade ago. A judgment of
foreclosure by sale first was rendered in December,
2005. On July 18, 2011, the trial court ordered a second
foreclosure by sale of the property in question. The
record before us is replete with numerous motions filed
by the defendant before the trial court, and appeals to
this court, regarding those determinations, all of which
our courts have deemed to be without merit. On our
review of the record before us, we cannot conclude
that the court abused its ample discretion in ruling on
the parties’ respective motions to open the judgment
of foreclosure by sale.
The defendant further contends that the court
improperly denied his December 5, 2012 request for
referral to the foreclosure mediation program. We dis-
agree. On July 18, 2011, the trial court ordered a foreclo-
sure by sale of the property in question. The defendant’s
referral request was filed more than sixteen months
after that outstanding judgment was rendered. As such,
the court could not entertain that request unless it first
granted the defendant’s motion to open, which it did
not. We therefore conclude that the court properly
denied the defendant’s referral request in the present
case.
The judgment is affirmed and the case is remanded
for the purpose of setting a new sale date.
1
Steven Russo’s wife, Dorine Russo, also was named as a defendant, but
is not involved in this appeal. We therefore refer in this opinion to Steven
Russo as the defendant.
2
In various pleadings relevant to this appeal, the plaintiff identifies itself
as ‘‘Wells Fargo Bank Minnesota, N.A., k/n/a Wells Fargo Bank, N.A., as
Trustee.’’ Furthermore, the plaintiff appended to its April 29, 2011 opposition
to the defendant’s motion to dismiss an official certification of that name
change from the United States Comptroller of the Currency.
3
The plaintiff also filed an affidavit of debt, which indicated an outstanding
balance of $383,159.81 as of July 18, 2011.
4
Although the defendant also references Practice Book § 71-7 in his appel-
late brief, that section plainly is inapplicable in the present case, as neither
party at any time sought to obtain a stay of execution pending a decision
in the case by the United States Supreme Court.