Bayview Loan Serviceing, LLC v. Frimel ( 2019 )

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BAYVIEW LOAN SERVICING, LLC v. SANDRA
FRIMEL ET AL.
(AC 41213)
DiPentima, C. J., and Moll and Beach, Js.
Syllabus
The plaintiff company sought to foreclose a mortgage on certain real prop-
erty owned by the defendant F. The plaintiff filed a motion for summary
judgment as to liability only on the complaint and as to F’s special
defenses and counterclaim. In July, 2017, at a scheduled hearing on the
plaintiff’s motion for summary judgment, the plaintiff’s counsel indicated
that although she was ready to proceed with regard to the motion for
summary judgment, she would leave it to the trial court’s discretion in
light of the suspension from the practice of law of F’s attorney and F’s
attempts to retain another attorney. During that hearing, the court noted
that it would consider the plaintiff’s motion on or after August 18, 2017,
but that it would grant the motion for summary judgment if F failed to
file an objection by that time. The court also noted that it would hear
oral argument on the merits of the motion for summary judgment if F
requested argument on or before August 18, 2017, but that it would
otherwise consider the matter on the papers. On August 21, 2017, F’s
new attorney, H, filed an objection to the plaintiff’s motion for summary
judgment, indicating that oral argument was requested, but the court
subsequently granted the plaintiff’s motion for summary judgment, with-
out a hearing, on the basis of the parties’ written submissions. Thereafter,
the trial court rendered a judgment of foreclosure by sale, from which
F appealed to this court. Held that the trial court erred in granting the
plaintiff’s motion for summary judgment without the motion appearing
on the short calendar and without permitting oral argument on the
motion: although that court, in granting the plaintiff’s motion for sum-
mary judgment, cited F’s failure to file an opposition to the motion by
the deadline established by the court and treated F’s objection as
untimely and insufficient because it did not include a memorandum of
law, evidence, or an affidavit, the court was required to consider, in the
first instance, whether the plaintiff, as the movant, had satisfied its
burden of establishing its entitlement to summary judgment, and, if the
plaintiff had failed to meet its initial burden, it would not matter if F
had not filed any response; moreover, the trial court improperly granted
the plaintiff’s motion for summary judgment without hearing oral argu-
ment regarding the merits of that motion as required by the applicable
rule of practice (§ 11-18), as the court indicated during the July, 2017
hearing, which did not address the merits of the plaintiff’s motion, that
it would consider the motion on the papers unless F filed a request for
oral argument by August 18, 2017, H filed an objection to the plaintiff’s
motion for summary judgment with a request for oral argument on
August 21, 2017, and, notwithstanding those filings, the court granted
the plaintiff’s motion for summary judgment without hearing oral argu-
ment on the merits of that motion.
Argued May 22—officially released September 17, 2019
Procedural History
Action to foreclose a mortgage on certain of the
named defendant’s real property, and for other relief,
brought to the Superior Court in the judicial district of
Middlesex, where the named defendant filed a counter-
claim; thereafter, the court, Aurigemma, J., granted the
plaintiff’s motion for summary judgment as to liability
on the complaint and as to the counterclaim; subse-
quently, the court denied the named defendant’s motion
to reargue and for reconsideration; thereafter, the court,
Domnarski, J., rendered a judgment of foreclosure by
sale, from which the named defendant appealed to this
court; subsequently, the court, Aurigemma, J., denied
the named defendant’s motion for articulation; there-
after, this court granted the named defendant’s motion
for review but denied the relief requested therein.
Reversed; further proceedings.
Michael J. Habib, with whom was Thomas P. Will-
cutts, for the appellant (named defendant).
Benjamin T. Staskiewicz, for the appellee (plaintiff).
Jeffrey Gentes filed a brief for the Connecticut Fair
Housing Center as amicus curiae.
Opinion
BEACH, J. The defendant Sandra Frimel appeals from
the judgment of foreclosure by sale rendered in favor
of the plaintiff, Bayview Loan Servicing, LLC.1 On
appeal, the defendant claims that the trial court erred
in granting the plaintiff’s motion for summary judgment
without the motion appearing on the short calendar
and without permitting oral argument on the motion.
We agree with the defendant and, accordingly, reverse
the judgment of the trial court.
The following facts and procedural history are rele-
vant to the defendant’s claim on appeal. The plaintiff
filed this action in February, 2011, seeking to foreclose
a mortgage on the defendant’s property located at 158
Brainard Hill Road in Higganum. On December 23, 2013,
the trial court, Domnarski, J., granted the plaintiff’s
motion for summary judgment as to liability only. On
April 28, 2014, the court, Marcus, J., rendered a judg-
ment of foreclosure by sale. On August 18, 2014, Judge
Domnarski granted the defendant’s motion to open the
judgment and vacated the judgment of foreclosure by
sale. On January 12, 2015, the plaintiff filed a motion
for judgment of strict foreclosure. On January 23, 2015,
the defendant filed an answer, a special defense, and
a counterclaim.
On June 2, 2017, the plaintiff filed a motion for sum-
mary judgment as to liability only on the complaint and
as to the defendant’s special defense and counterclaim.
On June 19, 2017, William B. Smith, trustee for Thomas
P. Willcutts, the defendant’s former attorney, filed a
letter informing the court that Willcutts had been placed
on interim suspension from the practice of law and
that the defendant had only recently become aware of
Willcutts’ suspension. The letter also asked that the
court offer ‘‘any appropriate forbearance or time in
proceeding’’ with this matter.2 At a scheduled hearing
on the plaintiff’s motion for summary judgment on July
24, 2017, the plaintiff’s counsel indicated that although
she was ready to proceed with regard to the plaintiff’s
motion for summary judgment, she would leave it to
the court’s discretion in light of Willcutts’ suspension
and the defendant’s attempts to retain another attor-
ney.3 The defendant then informed the court that she
was having a problem receiving her mail and that she
had very recently learned of Willcutts’ suspension.4 In
response, the court, Aurigemma, J., stated that it ‘‘will
consider this matter on or after August [18, 2017]. If
there’s nothing filed by your attorney, the court will
grant the summary judgment. This case is six years old.
The court is not inclined to give any more time. I think
[August 18, 2017], is quite generous.’’ Counsel for the
plaintiff then inquired whether the court would want
oral argument on August 18, 2017, or if it would consider
the case on the papers on that date. In response, the
court stated that ‘‘[i]f they file it and want argument,
they can request argument . . . on or before [August
18, 2017]; otherwise, I will take it on the papers.’’
On August 18, 2017, Attorney Michael J. Habib filed
an appearance on behalf of the defendant. On August
21, 2017, Habib filed an objection to the plaintiff’s
motion for summary judgment. The opposition indi-
cated that oral argument was requested.5 On August
29, 2017, the court granted the plaintiff’s motion for
summary judgment on the basis of the parties’ written
submissions and without a hearing. The court’s decision
stated: ‘‘Absent opposition. The motion for summary
judgment was filed in June. It appeared on the calendar
on [July 24, 2017]. At that time the defendant’s attorney
was suspended from practice. The court stated that it
would not consider the motion until August 18, 2017,
thereby giving the defendant or her attorney time to
file something in opposition to the motion for summary
judgment. As of August 18, 2017, there was nothing filed
in opposition. The defendant’s new attorney filed a one
page objection to the [motion for] summary judgment
on August 21, 2017, but filed no memorandum of law
and filed no evidence or affidavit in opposition to the
summary judgment motion. Given the age of this case
and the unfairness to the plaintiff, the court finds that
the defendant’s conduct is motivated only by desire
to delay proceedings and, in the absence of anything
substantive to oppose the plaintiff’s [motion for] sum-
mary judgment, the same is granted.’’
On September 19, 2017, the defendant filed a motion
to reargue and for reconsideration,6 contending that the
court’s order granting the plaintiff’s motion for sum-
mary judgment was ‘‘against applicable law in its failure
to permit the defendant to present her opposition to
the plaintiff’s motion, by way of argument or otherwise,
and its failure to consider the same in granting the
plaintiff’s motion.’’ That same day, the plaintiff filed an
objection to the defendant’s motion to reargue and for
reconsideration. On October 10, 2017, the court denied
the defendant’s motion and sustained the plaintiff’s
objection thereto. On December 18, 2017, Judge Domn-
arski rendered a judgment of foreclosure by sale. The
defendant then filed the present appeal.
On appeal, the defendant claims that the court erred
in granting the plaintiff’s motion for summary judgment
without the motion appearing on the short calendar
and without permitting oral argument on the motion.
The plaintiff counters that the court acted within its
discretion in scheduling the hearing on its motion for
summary judgment, setting deadlines for the defen-
dant’s opposition to be filed and, ultimately, granting
the motion for summary judgment. We agree with the
defendant and conclude, for two reasons, that the court
erred in granting the plaintiff’s motion for summary
judgment.
‘‘Practice Book § 17-49 provides that summary judg-
ment shall be rendered forthwith if the pleadings, affida-
vits and any other proof submitted show that there is
no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.
A party moving for summary judgment is held to a strict
standard. . . . To satisfy [its] burden the movant must
make a showing that it is quite clear what the truth is,
and that excludes any real doubt as to the existence of
any genuine issue of material fact. . . . As the burden
of proof is on the movant, the evidence must be viewed
in the light most favorable to the opponent. . . . When
documents submitted in support of a motion for sum-
mary judgment fail to establish that there is no genu-
ine issue of material fact, the nonmoving party has
no obligation to submit documents establishing the
existence of such an issue. . . . Once the moving party
has met its burden, however, the opposing party must
present evidence that demonstrates the existence of
some disputed factual issue.’’ (Emphasis in original;
internal quotation marks omitted.) Capasso v.
Christmann, 163 Conn. App. 248, 257, 135 A.3d 733
(2016). ‘‘Our review of the trial court’s decision to grant
[a] motion for summary judgment is plenary.’’ (Internal
quotation marks omitted.) Marinos v. Poirot, 308 Conn.
706, 712, 66 A.3d 860 (2013).
We initially note that the trial court, in granting the
plaintiff’s motion for summary judgment, cited the
defendant’s failure to file an opposition to the motion
by the deadline established by the court. In Capasso v.
Christmann, supra, 163 Conn. App. 250, the plaintiffs
claimed that the trial court improperly rendered sum-
mary judgment in favor of the defendants ‘‘on the basis
that the plaintiffs’ counsel [had] failed to file an ade-
quate opposition to the defendants’ motion.’’ We noted
that the trial court in that case ‘‘failed to address or
consider whether the defendants had met their burden
of establishing that they were entitled to summary judg-
ment. The court instead rendered judgment in favor
of the defendants because the plaintiffs’ counsel had
submitted an inadequate brief. Specifically, the court
stated: ‘The motion for summary judgment now before
the court is granted for the failure of its counseled
opponents to submit an adequate brief following spe-
cific instructions to do so.’ In other words, the court
effectively sanctioned the plaintiffs for failing to comply
with its prior order.’’ Id., 260.
In concluding that the trial court in Capasso improp-
erly rendered summary judgment in favor of the defen-
dants, we stated: ‘‘Under these facts and circumstances,
it was improper to grant summary judgment solely
because the court determined that the opposition to
the defendants’ motion was inadequate. . . . Under
our jurisprudence, the court was required to consider,
in the first instance, whether the defendants, as the
movants, had satisfied their burden of establishing their
entitlement to summary judgment. If, and only if that
burden was met, would the court have considered the
plaintiffs’ memoranda in opposition and supporting evi-
dentiary submissions to determine if they raised genu-
ine issues as to any facts material to the defendants’
right to judgment in their favor. If the defendants had
failed to meet their initial burden, it would not matter
if the plaintiffs had not filed any response. . . . Sum-
mary judgment could not be rendered if the defendants
failed to establish that there was no genuine issue as
to any material fact.’’ (Citations omitted; emphasis in
original.) Id., 260–61.
As in Capasso, the court’s order in the present case
failed to consider whether the plaintiff had met its bur-
den of establishing that it was entitled to summary
judgment. Instead, the order noted that it was being
issued ‘‘[a]bsent opposition’’ and that, although the
court had given the defendant until August 18, 2017, to
file an opposition to the motion for summary judgment,
nothing had been filed by that date. The order further
noted that Habib had filed a one page objection to the
motion for summary judgment on August 21, 2017, but
‘‘filed no memorandum of law and filed no evidence or
affidavit in opposition to the summary judgment
motion.’’7
The court appears to have treated the defendant’s
objection as untimely and insufficient because it did
not include a memorandum of law, evidence, or an
affidavit. In this regard, the plaintiff argues, in part, that
the trial court properly granted its motion for summary
judgment because the defendant had not filed an oppo-
sition to the motion within forty-five days of the filing
of the motion pursuant to Practice Book § 17-45 (b).8
As we stated in Capasso, however, the court was
required to consider, in the first instance, whether the
plaintiff, as the movant, had satisfied its burden of estab-
lishing its entitlement to summary judgment. If the
plaintiff had failed to meet its initial burden, it would
not matter if the defendant had not filed any response.
Capasso v. Christmann, supra, 163 Conn. App. 261.
Additionally, the court granted the plaintiff’s motion
for summary judgment in the absence of oral argument
on the motion. As stated previously in this opinion, at
the hearing on July 24, 2017, the court indicated that
it would consider the matter on or after August 18,
2017, and that if the defendant had not filed anything
by that date, it would grant the plaintiff’s motion. In
response to an inquiry by counsel for the plaintiff, the
court stated that the defendant could file a request for
oral argument by August 18, 2017; otherwise, the court
would consider the motion on the papers.9 Habib filed
an appearance for the defendant on August 18, 2017,
and an objection to the plaintiff’s motion for summary
judgment on August 21, 2017. The objection indicated
that oral argument was requested. Notwithstanding
these filings, on August 29, 2017, the court granted the
plaintiff’s motion for summary judgment without hear-
ing oral argument on the merits of the plaintiff’s motion.
Practice Book § 11-18 provides in relevant part: ‘‘(a)
Oral argument is at the discretion of the judicial author-
ity except as to . . . motions for summary judgment
. . . and/or hearing on any objections thereto. For
those motions, oral argument shall be a matter of right,
provided: (1) the motion has been marked ready in
accordance with the procedure that appears on the
short calendar on which the motion appears, or (2) a
nonmoving party files and serves on all other parties
. . . a written notice stating the party’s intention to
argue the motion or present testimony. Such a notice
shall be filed on or before the third day before the date
of the short calendar date . . . .’’ ‘‘Parties are entitled
to argue a motion for summary judgment as of right.’’
Singhaviroj v. Board of Education, 124 Conn. App. 228,
236, 4 A.3d 851 (2010).
The plaintiff argues that the court properly scheduled
this matter for the July 24, 2017 short calendar and that
it properly marked this motion ‘‘Ready’’ in accordance
with Practice Book § 17-45 (c).10 (Internal quotation
marks omitted.) At the hearing on July 24, 2017, how-
ever, the parties did not argue the merits of the motion
for summary judgment. Counsel for the plaintiff con-
ceded, at oral argument before this court, that the trial
court did not address the merits of the plaintiff’s motion,
either at the hearing on July 24, 2017, or in its order
granting the motion. Pursuant to Practice Book § 11-
18, the defendant had a right to oral argument on the
plaintiff’s motion for summary judgment. See Curry v.
Allan S. Goodman, Inc., 95 Conn. App. 147, 151–54,
895 A.2d 266 (2006) (trial court improperly rendered
summary judgment in favor of defendant without oral
argument where defendant had requested argument and
parties anticipated argument on motion); see also Sin-
ghaviroj v. Board of Education, supra, 124 Conn. App.
237 (concluding that parties should be given opportu-
nity to argue merits of claims at issue where transcript
reveals that argument commenced on motions for sum-
mary judgment but no substantive discussion followed).
The trial court, therefore, improperly granted the plain-
tiff’s motion for summary judgment without hearing
oral argument regarding the merits of that motion.
The judgment is reversed and the case is remanded
for further proceedings.11
In this opinion the other judges concurred.
1
Geoffrey Hammerson and JPMorgan Chase Bank, N.A., also were named
as defendants in this action. On April 1, 2011, the court granted the plaintiff’s
motion for default for failure to plead against Hammerson. On April 28,
2014, the court granted the plaintiff’s motion for default for failure to plead
against JPMorgan Chase Bank, N.A. We refer to Frimel as the defendant in
this opinion.
2
The letter, addressed to the clerk of the court, stated:
‘‘As of April 11, 2017, I was appointed [t]rustee for Thomas P. Willcutts,
Esq., who was suspended on an interim basis from the practice of law in
Connecticut, pursuant to Practice Book § 2-64, and by [o]rder of Judge
Robaina.
‘‘I am informing the [c]ourt, for informational purposes, in light of the
matter Bayview Loan Servicing, LLC v. Frimel et al. (MMX-CV11-
6004441-S), in which Attorney Willcutts filed an appearance for [the defen-
dant]. Further, I have learned that [the defendant] has only become aware
of Attorney Willcutts’ suspension and her need to retain new counsel this
week due to mail delivery problems to her rural delivery route. Additionally,
I have come to understand that she currently is without new representation
at the time of this writing.
‘‘Finally, I respectfully request that the [c]ourt offer any appropriate for-
bearance or time in proceeding with the above matter, so that [the defendant]
has ample opportunity to arrange for new representation.’’ (Emphasis in
original.)
3
The plaintiff’s counsel stated: ‘‘And, Your Honor, this is the plaintiff’s
motion for summary judgment. And, just by way of background, the defen-
dant was represented by Attorney Willcutts, who is no longer able to practice
at this moment.
‘‘We spoke with the trustee, who stated that he would be filing a request
with the [c]ourt for additional time, so that a new attorney can be sought.
‘‘I haven’t seen an appearance yet, but I did speak with the defendant
this morning. She said she is in talks with an attorney. She has his name.
He is deciding whether he wants to take the case or not. So, I leave that
matter up to Your Honor’s discretion.
‘‘We’re ready to proceed, but given the circumstances, we’re leaving it to
Your Honor’s discretion.’’
4
The following colloquy took place between the court and the defendant:
‘‘The Court: When can your attorney be hired and file an opposition to
the [motion for] summary judgment?
‘‘[The Defendant]: What I’ve heard is—and I’m sorry for the delay. The
trustee—there’s a problem with my mail. I don’t know if you’ve read that
letter. And the trustee—I did not know that my attorney had been suspended.
The first I heard of it is when I heard from the bank’s representative, which
they mailed something to me on—it’s postmarked [June 2, 2017], but I didn’t
receive it until almost two and [one-half] weeks later because of a mail
problem, which I continue to straighten out. And I then called the trustee,
who had not notified me, and his name is William B. Smith, and he called
me back and said, didn’t you get my letter? I never got a letter from him, and
that’s when I first heard that Attorney Willcutts had been suspended . . . .’’
5
Although the opposition made reference to a memorandum of law, the
memorandum of law in opposition to the motion for summary judgment
was not filed until October 2, 2017. On October 19, 2017, the defendant
filed a notice of intent to argue her objection and memorandum of law in
opposition to the plaintiff’s motion for summary judgment.
6
Although captioned as the plaintiff’s motion to reargue and for reconsid-
eration, this motion was filed by the defendant.
7
The court also stated that ‘‘[g]iven the age of this case and the unfairness
to the plaintiff, the court finds that the defendant’s conduct is motivated only
by desire to delay proceedings and, in the absence of anything substantive
to oppose the plaintiff’s [motion for] summary judgment, the same is
granted.’’ With regard to the court’s statements regarding the age of the
case and the fact that the defendant’s conduct was motivated by a desire
to delay the proceedings, we note that the defendant filed her answer,
special defense and counterclaim on January 23, 2015. The plaintiff, however,
did not file its motion for summary judgment until June 2, 2017, over two
years later.
The defendant filed a motion for articulation requesting that the court
articulate, inter alia, the factual and legal basis for its conclusions that the
defendant’s conduct was motivated by a desire to delay the proceedings
and involved unfairness to the plaintiff. The court denied the motion for
articulation. The defendant thereafter filed a motion for review of the deci-
sion on the motion for articulation. This court granted review but denied
the relief requested therein.
8
Practice Book § 17-45 (b) provides: ‘‘Unless otherwise ordered by the
judicial authority, any adverse party shall file and serve a response to the
motion for summary judgment within forty-five days of the filing of the
motion, including opposing affidavits and other available documentary
evidence.’’
9
The court did not issue a written order establishing the deadline of
August 18, 2017. The defendant’s affidavit, filed on October 2, 2017, along
with the defendant’s memorandum of law in opposition to the plaintiff’s
motion for summary judgment, indicated that the defendant was not sure
of the nature of the August 18, 2017 deadline and that she contacted the
court clerk for clarification; the clerk, however, was unable to provide
clarification regarding the deadline.
10
Practice Book § 17-45 (c) provides: ‘‘Unless otherwise ordered by the
judicial authority, the moving party shall not claim the motion for summary
judgment to the short calendar less than forty-five days after the filing of
the motion for summary judgment.’’
11
We note that nothing in this opinion precludes the trial court, on remand,
from reconsidering the merits of the plaintiff’s motion for summary judgment
and determining whether that motion should be granted. See Capasso v.
Christmann, supra, 163 Conn. App. 261 n.13.