Bank of New York, Trustee v. Savvidis

 BANK OF NEW YORK, TRUSTEE v. ATHINA
SAVVIDIS ET AL.
(AC 39080)
DiPentima, C. J., and Keller and Graham, Js.
Syllabus
The plaintiff bank, as trustee, sought to foreclose a mortgage on certain
real property owned by the defendant mortgagors. Following the trial
court’s rendering of a judgment of strict foreclosure, the plaintiff filed
a notice with the court that the defendants had commenced a bankruptcy
proceeding, thereby staying the judgment. Thereafter, the bankruptcy
court issued an order granting the plaintiff relief from the automatic
stay, and the plaintiff filed a motion with the trial court to reenter the
judgment and to reset the law days. In support of its motion, the plaintiff
submitted an updated calculation of debt with an attached affidavit of
debt from its servicing agent, B. The calculation of debt was less than
the calculation of debt that the plaintiff previously had submitted approx-
imately two years earlier, despite the accrual of interest. At the hearing
on the plaintiff’s motion, the defendants’ counsel argued that the court
should not rely on B’s affidavit in calculating the outstanding debt. The
trial court inquired of counsel as to how the defendants were harmed
by the more advantageous updated calculation of debt, and whether
counsel had any basis on which to challenge B’s affidavit. In response,
counsel stated that B’s affidavit was inconsistent with the prior affidavit
and he requested an evidentiary hearing on the matter, but indicated
that he would not offer any evidence to contradict B’s affidavit. There-
after, the trial court declined counsel’s request for an evidentiary hearing,
reentered the judgment of strict foreclosure, reset the law days, and
calculated the outstanding debt relying on B’s affidavit. On appeal, the
defendants challenged the trial court’s reliance on B’s affidavit in calcu-
lating their outstanding debt. Held that the trial court properly relied
on B’s affidavit in calculating the outstanding debt, the defendants on
appeal having failed to articulate any colorable claim of prejudice by
the court’s decision: although the updated calculation of debt with B’s
attached affidavit was inconsistent with the one that the plaintiff pre-
viously had submitted, the updated calculation of debt was less than
the prior calculation of debt, and the defendants did not rebut the
plaintiff’s contention that there was effectively no harm to them; more-
over, the trial court did not abuse its discretion in declining to conduct
an evidentiary hearing on the matter in light of the defendants’ affirma-
tion that they would not offer any additional evidence to challenge the
figures set forth in B’s affidavit.
Argued April 25—officially released July 25, 2017
Procedural History
Action to foreclose a mortgage on certain real prop-
erty owned by the named defendant et al., brought to
the Superior Court in the judicial district of Stamford-
Norwalk, where the defendants were defaulted for fail-
ure to plead; thereafter, the court, Adams, J., granted
the plaintiff’s motion for a judgment of strict foreclosure
and rendered a judgment of foreclosure by sale; subse-
quently, the court, Mintz, J., granted the motion to open
the judgment filed by the named defendant et al. and
rendered a judgment of strict foreclosure; thereafter,
the court, Povodator, J., granted the plaintiff’s motion
to reenter the judgment and to reset the law days, and
the named defendant et al. appealed to this court.
Affirmed.
Joseph DaSilva, Jr., with whom, on the brief, was
Marc J. Grenier, for the appellants (named defendant
et al.).
Jonathan A. Adamec, for the appellee (plaintiff).
Opinion
GRAHAM, J. The defendants Athina Savvidis and
Anastasios Savvidis1 appeal from the judgment of strict
foreclosure reentered by the trial court in favor of the
plaintiff, Bank of New York, as trustee,2 following the
lifting of a bankruptcy stay. On appeal, the defendants
contend that the trial court improperly relied on an
affidavit furnished by the plaintiff in calculating the
outstanding debt. We affirm the judgment of the trial
court.
This appeal concerns real property owned by the
defendants and known as 106B Comstock Hill Avenue
in Norwalk (property). On April 14, 2003, the defendants
executed a promissory note (note) in favor of America’s
Wholesale Lender3 in the principal amount of $550,000.
The note was secured by a mortgage deed on the prop-
erty (mortgage).
On October 3, 2006, the plaintiff commenced this
foreclosure action in its capacity as owner and holder
of the note and mortgage. The operative complaint, the
plaintiff’s January 31, 2007 amended complaint, alleged
in relevant part that the note was in default, that the
defendants had been provided written notice thereof,
and that the defendants had failed to cure that default.
Accordingly, the plaintiff sought to ‘‘declare [the] note
to be due in full and to foreclose the mortgage securing
said note.’’ Over the next decade, multiple judgments
of foreclosure were entered by the trial court, only to
be stayed by the filing of bankruptcy petitions by the
defendants under title 11, chapter 13, of the United
States Code. See U.S. Bank National Assn., Trustee v.
Works, 160 Conn. App. 49, 52, 124 A.3d 935 (filing of
bankruptcy petition pursuant to title 11 operates ‘‘as
an automatic stay of the plaintiff’s foreclosure action’’),
cert. denied, 320 Conn. 904, 127 A.3d 188 (2015).
Relevant to this appeal are the events subsequent to
the rendering of a judgment of strict foreclosure by the
court on June 8, 2015. On September 9, 2015, the plain-
tiff, in accordance with General Statutes § 49-15 (b),4
filed a notice that the defendants had commenced yet
another bankruptcy proceeding, thereby staying the
judgment of foreclosure recently reentered by the trial
court. On January 7, 2016, the United States Bankruptcy
Court for the District of Connecticut issued an order
granting relief from that automatic stay ‘‘to permit the
[plaintiff] to exercise [its] rights, if any, with respect
to [the property] in accordance with applicable non-
bankruptcy law.’’ The plaintiff thereafter filed a motion
to reset the law days and to reenter the judgment on
the ground that the June 8, 2015 judgment of strict
foreclosure had been opened and the law days vacated
pursuant to § 49-15 (b).
In support of that motion, the plaintiff submitted an
updated calculation of debt dated March 9, 2016. That
filing stated that the total due as of February 18, 2016
was $794,608.66. Attached to that filing was an affidavit
of debt dated March 3, 2016, and signed under oath by
Tina Marie Braune, a ‘‘Document Execution Specialist
of Nationstar Mortgage LLC,’’ which was the plaintiff’s
servicing agent at that time. In her affidavit, Braune
provided a detailed breakdown of the various compo-
nents of that calculation, including unpaid principal,
interest, and property tax and hazard insurance
advances.
The parties appeared before the court on March 14,
2016, at which time the court indicated that it had ‘‘a
couple of questions or problems with some of the num-
bers that don’t make sense’’ in comparison to the calcu-
lation of debt submitted by the plaintiff two years
earlier. The plaintiff previously had filed a calculation of
debt dated February 11, 2014 (2014 calculation), which
indicated that the total due to February 18, 2014 was
$801,528.16. That filing was accompanied by an affidavit
of debt dated November 12, 2013, and signed under oath
by Kimberly Gina Harvey, an assistant vice president at
Bank of America N.A.5 Comparing the 2014 calculation
to the one presently before it, the court observed that
‘‘[t]he total debt has actually gone down which doesn’t
make sense since you’re dealing with a substantial
increase in interest.’’ The court then noted a significant
discrepancy with respect to the property tax and hazard
insurance advances detailed in the respective affidavits,
‘‘that seems to be the source . . . of why notwithstand-
ing increased interest over time the aggregate actually
has gone down somewhat.’’ The parties requested a
one week continuance to review the matter, which the
court granted.
The parties returned to court on March 21, 2016. The
plaintiff had filed an additional calculation of debt dated
March 18, 2016, which was identical in all material
respects to the March 9, 2016 calculation, save for the
inclusion of $2328.81 in additional interest that recently
had accrued. The defendants’ counsel indicated that
he had ‘‘no problem’’ with that additional interest but
remained ‘‘deeply concerned’’ that the 2014 calculation
was higher than the one presently before the court. In
response, the court inquired whether the defendants
had any reason or evidentiary basis for the court to
doubt the accuracy of the updated calculation of debt
furnished by the plaintiff, which the court noted was
‘‘more advantageous’’ to the defendants. The defen-
dants’ counsel offered no such reason, apart from the
fact that the plaintiffs had introduced inconsistent affi-
davits. The plaintiff’s counsel confirmed that the Braune
‘‘numbers are correct for the affidavit of debt.’’
The defendants’ counsel nonetheless argued that the
court should not rely on Braune’s affidavit because ‘‘the
plaintiff . . . is now seeking to collect roughly half of
what it allegedly’’ paid in property tax and hazard insur-
ance advances. The court noted that it had two alterna-
tives: accept the updated calculation of debt predicated
on Braune’s affidavit or conduct an evidentiary hearing.
The defendants’ counsel stated that he did not want an
evidentiary hearing, but an explanation for why the
numbers had decreased.
The court inquired of the defendants’ counsel how
the defendants were harmed by the present calculation
of debt, and whether he had ‘‘any basis’’ on which to
challenge Braune’s affidavit. In response, counsel
pointed only to its inconsistency with the prior affidavit.
The court responded that ‘‘there is a presumptive quality
to what is being submitted. Absent a request for an
ability to challenge the evidentiary value and weight to
be given presumptively, I rely on unchallenged submis-
sions such as this affidavit.’’ The defendants’ counsel
then requested an evidentiary hearing but indicated that
he would not be offering any evidence to contradict
the affidavit.
The court then ruled in relevant part: ‘‘Absent any
proffer of evidence that challenges the validity or accu-
racy of the most recent affidavit . . . I believe I am
entitled to and should proceed on the basis of the affida-
vit as submitted absent a claim that you’re going to
be offering evidence to challenge those numbers.’’ The
court issued an order reentering the judgment of strict
foreclosure, in which it reset the law days and found
the outstanding debt to be $796,922.47.6
On appeal, the defendants claim that the court
improperly relied on Braune’s March 3, 2016 affidavit
in calculating the debt. In response, the plaintiff argues
that, irrespective of the merits of that claim, the defen-
dants cannot demonstrate that they were substantially
prejudiced by the court’s evidentiary ruling. We agree
with the plaintiff.
The standard governing such claims is well estab-
lished. ‘‘Our standard of review regarding challenges to
a trial court’s evidentiary rulings is that these rulings
will be overturned on appeal only where there was an
abuse of discretion and a showing by the defendant of
substantial prejudice or injustice. . . . Additionally, it
is well settled that even if the evidence was improperly
admitted, the [defendant] must also establish that the
ruling was harmful and likely to affect the result of
the trial.’’ (Internal quotation marks omitted.) National
City Mortgage Co. v. Stoecker, 92 Conn. App. 787, 797,
888 A.2d 95, cert. denied, 277 Conn. 925, 895 A.2d
799 (2006).
The record reflects that the trial court rendered a
judgment of strict foreclosure on June 8, 2015. At that
time, the court, without objection by the defendants,
determined the outstanding debt to be $801,498.16. Ulti-
mately, the defendants’ filing of a bankruptcy petition
precluded that foreclosure from proceeding.
Following the January 7, 2016 order of the bankruptcy
court granting the plaintiff relief to exercise its right to
foreclose on the property, the plaintiff moved for a
reentry of the judgment of strict foreclosure, which
necessitated a resetting of the law days and a recalcula-
tion of the debt. Although more than nine months had
passed, during which additional interest had accrued,
the plaintiff nonetheless submitted an updated calcula-
tion of debt and an accompanying affidavit that set
forth a total due that was thousands of dollars less than
the debt previously set by the court. When pressed by
the court as to how that reduction in the amount owed
to the plaintiff prejudiced the defendants, the defen-
dants’ counsel provided no answer. Furthermore,
although the court considered conducting an eviden-
tiary hearing on the matter, it declined to do so in light
of the defendants’ affirmation that they would not be
offering any additional evidence to challenge the figures
set forth in Braune’s affidavit.
On appeal, the defendants have articulated no color-
able claim of prejudice. Although the plaintiff argued
in its appellate brief that ‘‘[t]here was effectively no
harm to the defendants by the trial court’s decision,’’
the defendants did not rebut that contention. On our
review of the record, we can discern no substantial
prejudice to the defendants. Moreover, we are mindful
that ‘‘[a] foreclosure action is an equitable proceeding
. . . [and the] determination of what equity requires is
a matter for the discretion of the trial court.’’ (Internal
quotation marks omitted.) Deutsche Bank National
Trust Co. v. Angle, 284 Conn. 322, 326, 933 A.2d 1143
(2007). We conclude that the defendants have not dem-
onstrated that the trial court abused its discretion in
the present case.
The judgment is affirmed and the case is remanded
for the purpose of setting new law days.
In this opinion the other judges concurred.
1
Although Sophia Savvidis, Progressive Credit Union, and Norwalk Hospi-
tal also were named as defendants in the plaintiff’s complaint, none of those
defendants have appealed from the judgment of the trial court. We, therefore,
refer to Athina Savvidis and Anastasios Savvidis as the defendants in this
opinion.
2
The plaintiff is the trustee of the Certificate Holders of CHL Mortgage
Pass-Through Trust 2003-15.
3
America’s Wholesaler Lender is the trade name of Countrywide Home
Loans, Inc. America’s Wholesale Lender v. Pagano, 87 Conn. App. 474, 475,
866 A.2d 698 (2005).
4
General Statutes § 49-15 (b) provides in relevant part: ‘‘Upon the filing
of a bankruptcy petition by a mortgagor under Title 11 . . . any judgment
against the mortgagor foreclosing the title to real estate by strict foreclosure
shall be opened automatically without action by any party or the court,
provided, the provisions of such judgment, other than the establishment of
law days, shall not be set aside under this subsection, provided no such
judgment shall be opened after the title has become absolute in any encum-
brancer or the mortgagee, or any person claiming under such encumbrancer
or mortgagee. The mortgagor shall file a copy of the bankruptcy petition,
or an affidavit setting forth the date the bankruptcy petition was filed, with
the clerk of the court in which the foreclosure matter is pending. . . .’’
5
In her affidavit, Harvey indicated that Bank of America N.A. was ‘‘the
plaintiff’s servicing agent for the subject loan . . . .’’
6
That figure is $4575.69 less than the debt set by the court nine
months earlier.