Connecticut Housing Finance Authority v. Alfaro ( 2016 )

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CONNECTICUT HOUSING FINANCE AUTHORITY
v. ASDRUBAL ALFARO ET AL.
(AC 37265)
Gruendel, Lavine and Prescott, Js.
Argued December 8, 2015—officially released March 8, 2016
(Appeal from Superior Court, judicial district of
Fairfield, Tyma, J.)
Peter V. Lathouris, with whom was Richard M.
Breen, for the appellant (named defendant).
Michael G. Tansley, with whom was Mary Barile
Pierce, for the appellee (plaintiff).
Opinion
PRESCOTT, J. The defendant Asdrubal Alfaro1
appeals from the judgment of the trial court denying
his motion for an award of attorney’s fees pursuant to
General Statutes § 42-150bb.2 On appeal, the defendant
claims that the court improperly denied his motion for
attorney’s fees because it found that he did not success-
fully defend the foreclosure action instituted by the
plaintiff, Connecticut Housing Finance Authority, who
withdrew the action as a matter of right. We affirm the
judgment of the trial court.
The following facts and procedural history are rele-
vant to this appeal. In May, 2004, the defendant exe-
cuted a promissory note (note) for $216,500 payable
to Guaranty Residential Lending, Inc. The note was
secured by a mortgage on property located at 465 Green-
wood Street in Bridgeport. On June 27, 2012, the plain-
tiff initiated this foreclosure action against the
defendant, alleging that the mortgage had been assigned
to it and that the defendant had defaulted on the note.
On December 26, 2012, the defendant filed his answer
with special defenses, one of which provided that the
plaintiff lacked standing to bring and maintain this
action because it was not a person or entity entitled to
enforce the note and mortgage. On March 14, 2013, the
plaintiff filed a motion for summary judgment, to which
the defendant objected. In his objection, the defendant
argued that the plaintiff lacked standing to bring this
action because the plaintiff cannot prove that it is the
holder of the note as it does not have possession of the
original note; it only has possession of a copy of the
original note, which does not contain any assignment
to the plaintiff from Guaranty Residential Lending, Inc.
On April 24, 2013, the plaintiff withdrew its motion
for summary judgment. Subsequently, on June 4, 2013,
before any hearing on the merits was held, the plaintiff
withdrew its foreclosure action as a matter of right
pursuant to General Statutes § 52-80.3 On June 10, 2013,
the defendant filed a motion for attorney’s fees pursuant
to § 42-150bb. The court heard oral argument on the
motion on July 23, 2014. On August 5, 2013, the court
denied the defendant’s motion for attorney’s fees. This
appeal followed. Additional facts will be set forth as
necessary.
The defendant’s sole claim on appeal is that the court
improperly denied his motion for attorney’s fees
because it improperly found that he did not successfully
defend the action as required by § 42-150bb. The defen-
dant argues that ‘‘[i]t is only logical to surmise that
the [p]laintiff realized that if the court determined that
issues raised by [the defendant] went to the merits of
the case, it could lose the right to foreclose on the
mortgage,’’ and, thus, the plaintiff withdrew its case on
the basis of the defendant’s special defense that the
plaintiff lacked standing to bring the action.
The plaintiff responds that the court properly found
that the defendant did not successfully defend the
action because nothing in the record reflects that the
plaintiff withdrew the case because of any defense that
the defendant interposed. The plaintiff further argues
that a consumer party does not successfully defend an
action brought by a commercial party for the purposes
of § 42-150bb solely on the basis that the commercial
party withdrew the action as a matter of right. We need
not decide whether a consumer party can ever success-
fully defend an action pursuant to § 42-150bb if he or
she can prove that the commercial party withdrew the
action as a matter of right in response to the merits of
his or her defense, because we agree with the plaintiff
that the defendant here has failed to prove that his
defense was the reason for the plaintiff’s withdrawal
of the action.
The following additional facts are relevant to deciding
this claim. At the hearing on the motion for attorney’s
fees, the defendant argued that he had successfully
defended the foreclosure action because ‘‘the defense
and the arguments that were made caused the lender
to withdraw the action because, frankly, I didn’t think
that they would be able to prove their case.’’ No evi-
dence was submitted to the court to show that the
defendant’s defense was the reason for the plaintiff’s
withdrawal of the action. The court found that the
defendant had failed to establish that he successfully
defended the action because there were a myriad of
possible reasons why the plaintiff may have withdrawn
the action as a matter of right.
In this case, to be awarded attorney’s fees pursuant
to § 42-150bb, the defendant was required to prove that:
(1) he is a consumer party; (2) the plaintiff is a commer-
cial party; (3) the mortgage that the plaintiff attempts
to foreclose upon is a contract ‘‘in which the money,
property or service which is the subject of the transac-
tion is primarily for personal, family or household pur-
poses’’; (4) the mortgage provides that the mortgage
holder has the right to be awarded attorney’s fees by
the consumer if the mortgage holder successfully prose-
cutes an action on the basis of the mortgage; and (5)
he successfully defended an action based upon the
mortgage. See General Statutes § 42-150bb. The trial
court only made a finding as to whether the defendant
successfully defended the action; it made no findings
as to the other four requirements. Although we note
that this court has held that the issue of whether the
contract at issue falls within the purview of § 42-150bb
must be resolved first; Tyler E. Lyman, Inc. v. Lodrini,
78 Conn. App. 582, 589, 828 A.2d 676 (2003); neither
party has briefed this issue on appeal. Thus, we will
assume, only for the purpose of resolving this appeal,
that the remaining four requirements were met and that
§ 42-150bb applies to foreclosure cases in general and
to this foreclosure case in particular.
Whether a consumer party successfully defends an
action pursuant to § 42-150bb is a question of fact. ‘‘We
review the court’s findings of fact under the clearly
erroneous standard. . . . The trial court’s findings are
binding upon this court unless they are clearly errone-
ous in light of the evidence and the pleadings on the
record as a whole. . . . We cannot retry the facts or
pass on the credibility of the witnesses. . . . A finding
of fact is clearly erroneous when there is no evidence
in the record to support it . . . or when although there
is evidence to support it, the reviewing court on the
entire evidence is left with the definite and firm convic-
tion that a mistake has been committed . . . .’’ (Inter-
nal quotation marks omitted.) Romanczak v.
AvalonBay Communities, Inc., 122 Conn. App. 499,
507–508, 998 A.2d 272 (2010); see Cioffoletti Construc-
tion v. Nering, 14 Conn. App. 161, 162, 540 A.2d 91
(1988) (‘‘[o]ur review in this appeal is limited to a deter-
mination of whether the trial court’s judgment was
clearly erroneous . . . or otherwise contrary to law’’).
To successfully defend an action, a consumer party
must ‘‘prevail on the merits of [its] answer or special
defenses.’’ Wilkes v. Thomson, 155 Conn. App. 278, 283,
109 A.3d 543 (2015). In raising his claim on appeal, the
defendant has assumed that the plaintiff withdrew its
action in response to his special defense. On the basis
of this assumption, the defendant argues that he suc-
cessfully defended the action and, thus, is entitled to
attorney’s fees under § 42-150bb. The record, however,
does not indicate the reason that the plaintiff withdrew
its action; it may have been because of the defendant’s
defense, but it may have been for a myriad of other
reasons. There was no hearing on the merits, and the
defendant offered no evidence at the hearing on the
motion for attorney’s fees to prove that the plaintiff
withdrew the action in response to his defense.
The defendant’s argument is founded on speculation
alone. This court will not speculate on what is not in
the record. See, e.g., State v. Begley, 122 Conn. App.
546, 552, 2 A.3d 1 (2010) (‘‘this court will not speculate
on what is not in the record’’); Dow & Condon, Inc. v.
Muros North Ltd. Partnership, 69 Conn. App. 220, 225,
794 A.2d 554 (2002) (‘‘[this court is] not free . . . to
make assumptions or to speculate about findings not
made’’). Thus, there was no evidence in the record from
which the court could have found that the defendant
prevailed on the merits of his defense. Accordingly, we
conclude that the court’s finding that the defendant
did not successfully defend the action was not clearly
erroneous, and, therefore, it properly denied the defen-
dant’s motion for attorney’s fees pursuant to § 42-150bb.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Asdrubal Alfaro is the only defendant participating in this appeal. The
other two defendants, Bank of America, N.A., and Rosibel Aguero, are not
participants in this appeal. On September 24, 2012, the trial court granted
the plaintiff’s motion for default for failure to appear as to Bank of America,
N.A. On March 6, 2013, the trial court granted the plaintiff’s motion for
default for failure to plead as to Aguero. Neither of those judgments is
challenged on appeal. Accordingly, we refer in this opinion to Alfaro as
the defendant.
2
General Statutes § 42-150bb provides in relevant part: ‘‘Whenever any
contract or lease entered into on or after October 1, 1979, to which a
consumer is a party, provides for the attorney’s fee of the commercial party
to be paid by the consumer, an attorney’s fee shall be awarded as a matter
of law to the consumer who successfully prosecutes or defends an action
or a counterclaim based upon the contract or lease. . . . For the purposes
of this section, ‘commercial party’ means the seller, creditor, lessor or
assignee of any of them, and ‘consumer’ means the buyer, debtor, lessee or
personal representative of any of them. The provisions of this section shall
apply only to contracts or leases in which the money, property or service
which is the subject of the transaction is primarily for personal, family or
household purposes.’’ (Emphasis added.)
3
General Statutes § 52-80 provides in relevant part: ‘‘If the plaintiff, in
any action returned to court and entered in the docket, does not, on or
before the opening of the court on the second day thereof, appear by himself
or attorney to prosecute such action, he shall be nonsuited, in which case
the defendant, if he appears, shall recover costs from the plaintiff. The
plaintiff may withdraw any action so returned to and entered in the docket
of any court, before the commencement of a hearing on the merits thereof.
. . .’’ (Emphasis added.)