McClancy v. Bank of America, N.A.

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CHRISTOPHER P. MCCLANCY ET AL. v. BANK
OF AMERICA, N.A., ET AL.
(AC 38568)
DiPentima, C. J., and Alvord and Bear, Js.
Syllabus
The plaintiffs sought to recover damages from the defendant bank for, inter
alia, breach of contract, in connection with actions purportedly taken
and promises allegedly made while the plaintiffs were attempting to
modify the terms of a note and mortgage they had executed in favor of
the bank. The bank sent the plaintiffs correspondence stating that their
modification application was under review, but then subsequently trans-
ferred its servicing rights to another company. The plaintiffs never
received a modification of their loan. The trial court granted the bank’s
motion for summary judgment as to all claims against it and rendered
judgment thereon, from which the plaintiffs appealed to this court. On
appeal, they claimed, inter alia, that the trial court erred in granting
summary judgment when genuine issues of material fact existed with
respect to their claims for breach of contract, negligent misrepresenta-
tion, reckless misrepresentation, and violations of the Connecticut
Unfair Trade Practices Act (CUTPA) (§ 42-110a et seq.). Held:
1. The plaintiffs’ claim that the trial court improperly granted the bank’s
motion for summary judgment when issues of material fact existed
with respect to their breach of contract claims was not reviewable, the
plaintiffs having failed to brief their claim adequately.
2. The plaintiffs could not prevail on their claim that the trial court erred
in failing to determine that their breach of contract claim fell within a
purported promissory estoppel exception to the statute of frauds; our
courts have not established a promissory estoppel exception to the
statute of frauds, and even if promissory estoppel could bar a statute
of frauds defense, the plaintiffs failed to provide evidence that the bank
made a promise to grant a loan modification once the required documen-
tation was submitted, as the bank never offered and the plaintiffs never
accepted modification terms, and the bank represented only that it
would consider the plaintiffs’ modification application once the plaintiffs
submitted the required documentation.
3. The trial court properly rendered summary judgment on the plaintiffs’
claim of negligent misrepresentation, the plaintiffs having failed to pre-
sent evidence that the bank’s representation that it would evaluate their
loan for a possible modification was false when made; the record showed
that the bank took steps to consider the plaintiffs’ modification request
while it was still servicing the loan, and evidence that the bank trans-
ferred the loan before making a decision on the modification, standing
alone, was insufficient to establish that its prior representation that it
would consider the plaintiffs for a loan modification was false when
made.
4. The trial court properly rendered summary judgment on the plaintiffs’
CUTPA claim, which was based on their claim that the bank acted in
bad faith in its communications with the plaintiffs as they worked to
submit a loan modification request and in transferring their loan during
that process; the plaintiffs failed to present evidence raising a genuine
issue of material fact about whether the bank engaged in unfair or
deceptive practices or violated any identifiable public policy in associa-
tion with the plaintiffs’ loan modification application, as this court deter-
mined that the plaintiffs failed to present evidence of a promise made
by the bank to modify their loan or that the bank misrepresented facts
when it promised to review the loan for a possible modification, the
note and mortgage did not obligate the bank to grant a loan modification,
and the mortgage expressly gave the bank the right to transfer the loan
servicing rights.
Argued May 22—officially released September 12, 2017
Procedural History
Action to recover damages for, inter alia, breach of
contract, and for other relief, brought to the Superior
Court in the judicial district of Stamford-Norwalk,
where the court, Heller, J., granted the named defen-
dant’s motion for summary judgment, from which the
plaintiffs appealed to this court. Affirmed.
Kenneth A. Votre, for the appellants (plaintiffs).
Pierre-Yves Kolakowski, for the appellee (named
defendant).
Opinion
BEAR, J. In this litigation arising from an attempt to
modify the payment terms of a promissory note and
mortgage, the plaintiffs, Christopher P. McClancy and
Loretta Giannone, appeal from the summary judgment
of the trial court rendered in favor of the defendant,
Bank of America, N.A.1 On appeal, the plaintiffs claim
that the court erred (1) in rendering summary judgment
when genuine issues of material fact existed with
respect to their breach of contract claim; (2) in failing
to determine that the plaintiffs’ contract claim fell
within an exception to the statute of frauds, General
Statutes § 52-550; (3) in rendering summary judgment
when genuine issues of material fact remained with
respect to their negligent and reckless misrepresenta-
tion claims; and (4) in determining that no genuine
issues of material fact existed with respect to the plain-
tiffs’ claim of a violation of the Connecticut Unfair Trade
Practices Act, General Statutes § 42-110a et seq.
(CUTPA). We affirm the judgment of the trial court.
The following uncontested facts and procedural his-
tory are relevant to this appeal. On May 8, 2007, the
plaintiffs executed a note to the defendant and a mort-
gage to secure that note in favor of the defendant on
property in Darien.2 The defendant serviced this home
loan. In the summer and fall of 2011, the plaintiffs and
the defendant communicated with respect to the possi-
ble modification of the plaintiffs’ loan. After the plain-
tiffs, in November, 2011, had submitted a completed
application for modification, on December 1, 2011, the
defendant transferred its servicing rights to Bayview.
In November, 2011, the defendant had given prior notice
to the plaintiffs that this would occur and that Bayview
would be responsible for continuing the modification
discussions. Neither Bayview nor the defendant entered
into a modification with the plaintiffs.
On June 26, 2013, the plaintiffs commenced this
action against the defendant and its predecessor in
interest for actions purportedly taken and promises
allegedly made while the plaintiffs were attempting to
modify their loan. In the operative complaint filed June
24, 2014, the plaintiffs alleged claims of breach of con-
tract, negligent misrepresentation, reckless misrepre-
sentation, intentional misrepresentation—fraud,
violation of CUTPA, and civil conspiracy against the
defendant and its predecessor in interest.3
On May 20, 2015, the defendant filed a motion for
summary judgment on all claims against it and its suc-
cessor in interest. In support of its motion, the defen-
dant submitted the adjustable rate note dated May 3,
2007, made and signed by the plaintiffs, to the defen-
dant; a mortgage deed dated May 3, 2007, recorded May
4, 2007, and signed by the plaintiffs in favor of the
defendant;4 a sworn affidavit of Tiffany Barnfield, assis-
tant vice president, senior operations manager for the
defendant; excerpts from the March 9, 2015 deposition
of McClancy; and excerpts from the March 9, 2015 depo-
sition of Giannone.
The plaintiffs filed a memorandum in opposition to
the motion for summary judgment. In support of the
memorandum in opposition, the plaintiffs submitted an
affidavit of McClancy, attached to which were a letter
from the plaintiffs to the defendant’s predecessor in
interest dated June 16, 2011, authorizing an attorney to
negotiate a modification of the loan on their behalf;
letters from the defendant to the plaintiffs dated Novem-
ber 2, November 10, November 21, and two from
November 25, 2011; and an assignment of the mortgage
on the plaintiffs’ property from the defendant to
E*Trade. The November 10, 2011 letter informed the
plaintiffs that the servicing rights to their loan would
be transferred to Bayview effective December 1, 2011.
The court rendered summary judgment on October 30,
2015. This appeal followed.
We start by setting forth the applicable standard of
review. ‘‘The standards governing our review of a trial
court’s decision to grant a motion for summary judg-
ment are well established. Practice Book [§ 17-49] pro-
vides that summary judgment shall be rendered
forthwith if the pleadings, affidavits 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. . . . In deciding a motion
for summary judgment, the trial court must view the
evidence in the light most favorable to the nonmoving
party. . . . The party seeking summary judgment has
the burden of showing the absence of any genuine issue
[of] material facts which, under applicable principles
of substantive law, entitle him to a judgment as a matter
of law . . . and the party opposing such a motion must
provide an evidentiary foundation to demonstrate the
existence of a genuine issue of material fact. . . . A
material fact . . . [is] a fact which will make a differ-
ence in the result of the case. . . . Finally, the scope
of our review of the trial court’s decision to grant the
plaintiff’s motion for summary judgment is plenary.’’5
(Internal quotation marks omitted.) Romprey v. Safeco
Ins. Co. of America, 310 Conn. 304, 312–13, 77 A.3d
726 (2013).
I
The plaintiffs claim that the court erred in granting
summary judgment on their breach of contract claims
when genuine issues of material fact existed with
respect to the existence of a contract.6 The court con-
cluded that the plaintiffs had failed to present evidence
that there was a contract between the plaintiffs and the
defendant with respect to a modification of any of the
terms of the note or mortgage, or as an independent
agreement. Additionally, the court reasoned the defen-
dant had the express right under the loan documents
to transfer the note and mortgage at any time without
notice to the plaintiffs and, therefore, it was not a breach
of contract when it transferred its servicing rights.
We conclude that the plaintiffs’ claim that there were
genuine issues of material fact on their contract claim
is inadequately briefed. ‘‘We are not required to review
issues that have been improperly presented to this court
through an inadequate brief. . . . Analysis, rather than
[mere] abstract assertion, is required in order to avoid
abandoning an issue by failure to brief the issue prop-
erly. . . . We do not reverse the judgment of a trial
court on the basis of challenges to its rulings that have
not been adequately briefed.’’ (Citation omitted; internal
quotation marks omitted.) Grasso v. Connecticut Hos-
pice, Inc., 138 Conn. App. 759, 768, 54 A.3d 221 (2012).
The section of the plaintiffs’ brief devoted to breach
of contract is a single paragraph, contains no case cita-
tions, and fails to provide an analysis demonstrating
why the court’s conclusions were incorrect. Other than
to state in a conclusory manner that facts were in dis-
pute, the plaintiffs failed to cite evidence in the record
supporting their claim on appeal that genuine issues of
material fact existed as to the court’s determination
that they failed to put forth evidence of a contract.
The plaintiffs’ reply brief fares no better. Although
they cite some evidence in the record and the statute
of limitations for oral contracts, they still fail to analyze
their claim by applying contract law to the evidence in
the record. Consequently, based upon this inadequate
briefing, we do not review this claim.
II
The plaintiffs also claim that the court erred in failing
to find that their claims fell within an exception to the
statute of frauds; specifically, promissory estoppel. We
first note that our courts have not established a promis-
sory estoppel exception to the statute of frauds. See
Glazer v. Dress Barn, Inc., 274 Conn. 33, 89-–90 n.38,
873 A.2d 929 (2005) (‘‘This court previously has not
addressed whether promises that otherwise would be
subject to the requirements of the statute of frauds may
be enforced on promissory estoppel grounds in the
absence of compliance with the statute of frauds; see
1 Restatement (Second) [of Contracts § 139 (1981)]; or
whether a separate promise to put the agreement in
writing may provide a basis to avoid the statute of
frauds. See 10 S. Williston, [Contracts (4th Ed. 1999)]
§ 27:14, pp. 128–33; annot., 56 A.L.R. 3d 1057 [1974 and
Supp. 2004].’’) The doctrine of equitable estoppel
accompanied by the doctrine of part performance on
the contract, however, bars the assertion of the statute
of frauds as a defense. Id., 60–63. We do not decide
whether promissory estoppel bars the defense of statute
of frauds because, even if it did, the plaintiffs failed
to provide evidence of the promise claimed to have
been made.
‘‘Under the law of contract, a promise is generally
not enforceable unless it is supported by consideration.
. . . [Our Supreme Court] has recognized, however, the
development of liability in contract for action induced
by reliance upon a promise, despite the absence of
common-law consideration normally required to bind
a promisor . . . . Section 90 of the Restatement [(Sec-
ond) of Contracts] states that under the doctrine of
promissory estoppel [a] promise which the promisor
should reasonably expect to induce action or forbear-
ance on the part of the promisee or a third person and
which does induce such action or forbearance is binding
if injustice can be avoided only by enforcement of the
promise. . . . A fundamental element of promissory
estoppel, therefore, is the existence of a clear and defi-
nite promise which a promisor could reasonably have
expected to induce reliance. Thus, a promisor is not
liable to a promisee who has relied on a promise if,
judged by an objective standard, he had no reason to
expect any reliance at all.’’ (Citation omitted; internal
quotation marks omitted.) Stewart v. Cendant Mobility
Services Corp., 267 Conn. 96, 104–105, 837 A.2d 736
(2003).
The plaintiffs’ claim is based on a purported promise
to grant a loan modification once the required documen-
tation was submitted. Having determined that there was
no promise by the defendant to grant a loan modifica-
tion, the court did not reach whether an alleged oral
contract fell under an exception to the statute of frauds.
In making this determination, the court cited McClan-
cy’s deposition testimony in which he acknowledged
that the defendant never offered terms for a loan modifi-
cation and that he never accepted terms for a modifica-
tion. The court also explained that McClancy’s affidavit
submitted in opposition to the motion for summary
judgment did not support a claim that the defendant
promised to modify the loan. McClancy averred in his
affidavit that the defendant represented to him that he
would be considered for a loan modification once he
supplied the required documentation; this, the court
determined, did not support his claim of a promise to
modify the loan. We agree with the court that, as it
set forth, the plaintiffs failed to present evidence of a
promise to modify the loan.7 Accordingly, there was no
basis for a claim of promissory estoppel nor for any
possible exception to the statute of frauds on that
ground.
III
The plaintiffs claim that genuine issues of material
fact remain on their claims of negligent misrepresenta-
tion and, therefore, the court improperly rendered sum-
mary judgment.8 The defendant argues that the plaintiffs
failed to identify any specific representations made by
it, and any representations that were knowingly false.
Additionally, the defendant argues that the plaintiffs’
reliance on the transfer of the loan as a basis for this
claim is ineffectual because it had the express right
under the mortgage to transfer the loan.
‘‘Guided by the principles articulated in § 552 of
Restatement (Second) of Torts [our Supreme Court]
has long recognized liability for negligent misrepresen-
tation. . . . [Our Supreme Court has] held that even
an innocent misrepresentation of fact may be actionable
if the declarant has the means of knowing, ought to
know, or has the duty of knowing the truth. . . . Tradi-
tionally, an action for negligent misrepresentation
requires the plaintiff to establish (1) that the defendant
made a misrepresentation of fact (2) that the defendant
knew or should have known was false . . . (3) that
the plaintiff reasonably relied on the misrepresentation,
and (4) suffered pecuniary harm as a result.’’ (Citations
omitted; footnote omitted; internal quotation marks
omitted.) Coppola Construction Co. v. Hoffman Enter-
prises Ltd. Partnership, 309 Conn. 342, 351–52, 71 A.3d
480 (2013).
In the present case, the court determined that ‘‘the
plaintiffs . . . presented, at best, evidence that [the
defendant] represented to them that it would evaluate
their loan for a possible modification . . . .’’ The court
concluded, as do we, that the plaintiffs failed to present
evidence that this representation was false when made.
This representation appears to have been made in a
November 2, 2011 letter to the plaintiffs.9 In a letter
dated November 10, 2011, the defendant notified the
plaintiffs that the servicing of their loan would be trans-
ferred to Bayview effective December 1, 2011. In that
letter, the plaintiffs were informed that, if they were
being considered for a loan modification, all documen-
tation would be forwarded to Bayview, Bayview would
be making all decisions on qualification for foreclosure
avoidance programs, the transfer could extend the time
needed for such a determination, and that they should
continue to make loan payments to Bayview after the
transfer. The evidence presented by the plaintiffs indi-
cates that throughout the month of November, 2011,
while still servicer of their loan, the defendant contin-
ued to consider their materials and it informed the
plaintiffs that more information was being gathered and
that a specialist had been assigned to their request.
The plaintiffs failed to present evidence sufficient to
raise a genuine issue of material fact that the representa-
tion was false when made. To the contrary, it appears
that the defendant took steps to consider the plaintiffs’
modification request while still servicing the loan.
Standing alone, evidence that the defendant transferred
the loan before making a decision on the modification
is not evidence that its prior representation that it would
consider the plaintiffs for a loan modification was false
when made. Consequently, the plaintiffs raised no genu-
ine issue of material fact and the court properly ren-
dered summary judgment on the plaintiffs’ claim of
negligent misrepresentation.
IV
The plaintiffs claim that the court improperly granted
summary judgment with respect to their CUTPA cause
of action, which is based on their claim that the defen-
dant acted in bad faith in its communications with the
plaintiffs as they worked to submit a loan modification
request and in transferring their loan during this pro-
cess. ‘‘[General Statutes §] 42-110b (a) provides that
[n]o person shall engage in unfair methods of competi-
tion and unfair or deceptive acts or practices in the
conduct of any trade or commerce. It is well settled
that in determining whether a practice violates CUTPA
we have adopted the criteria set out in the cigarette
rule by the federal trade commission for determining
when a practice is unfair: (1) [W]hether the practice,
without necessarily having been previously considered
unlawful, offends public policy as it has been estab-
lished by statutes, the common law, or otherwise—in
other words, it is within at least the penumbra of some
common law, statutory, or other established concept
of unfairness; (2) whether it is immoral, unethical,
oppressive, or unscrupulous; (3) whether it causes sub-
stantial injury to consumers, [competitors or other busi-
nesspersons]. . . . All three criteria do not need to be
satisfied to support a finding of unfairness. A practice
may be unfair because of the degree to which it meets
one of the criteria or because to a lesser extent it meets
all three. . . . Thus a violation of CUTPA may be estab-
lished by showing either an actual deceptive practice
. . . or a practice amounting to a violation of public
policy.’’ (Citation omitted; internal quotation marks
omitted.) Ramirez v. Health Net of the Northeast, Inc.,
285 Conn. 1, 18–19, 938 A.2d 576 (2008).
Having already determined that the plaintiffs failed
to present evidence raising a genuine issue of material
fact about whether the defendant made a promise to
modify the loan or that the defendant misrepresented
facts when it promised to review the loan for a possible
modification, we determine that the plaintiffs’ CUTPA
claim is without merit. The note and the mortgage did
not obligate the defendant to grant a loan modification,
and the mortgage expressly gave the defendant the right
to transfer the loan servicing rights. Accordingly, the
plaintiffs failed to present evidence raising a genuine
issue of material fact about whether the defendant
engaged in unfair or deceptive practices, or violated
any identifiable public policy in association with the
plaintiffs’ loan modification application.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The plaintiffs brought this action against Bayview Loan Servicing, LLC,
(Bayview), E*Trade Savings Bank (E*Trade), Bank of America and Bank
of America Home Loan Servicing, LP. On July 1, 2011, Bank of America,
and Bank of America Home Loan Servicing, LP merged, leaving Bank of
America as the sole surviving entity and successor in interest. Summary
judgment was sought by and rendered in favor of Bank of America, individu-
ally and as successor in interest to Bank of America Home Loan Servicing,
LP. Bayview and E*Trade, therefore, are not parties to this appeal, and all
references to the defendant herein are to Bank of America, individually and
as successor in interest to Bank of America Home Loan Servicing, LP.
2
In their recitation of the facts and in their complaint, the plaintiffs claim
that the note was signed in favor of a different lender. The only evidence
of the original note and mortgage in the record was provided by the defendant
in its appendix. Both the note and mortgage contain the names of the
plaintiffs and the defendant, and were executed, where required, by them.
Additionally, the plaintiffs submitted a copy of the assignment of the mort-
gage from the defendant to E*Trade in 2012, recorded on the Darien land
records, that refers to the recording of the mortgage provided by the defen-
dant in its appendix.
3
The plaintiffs on appeal do not raise any issues related to their intentional
misrepresentation or civil conspiracy claims.
4
The mortgage was also signed by a nonparty, Patricia G. McClancy.
5
Citing Bank of America, FSB v. Hanlon, 65 Conn. App. 577, 581, 783
A.2d 88 (2001), the defendant asserts that the burden on appeal is on the
party opposing summary judgment to demonstrate that the court’s decision
to grant the movant’s summary judgment motion was clearly erroneous.
Our Supreme Court expressly has disavowed this description of the law:
‘‘In reciting the applicable standard of review when a trial court’s decision to
grant a motion for summary judgment is challenged on appeal, the Appellate
Court correctly stated that such review is plenary. . . . The Appellate Court,
however, also stated that, ‘[o]n appeal . . . the burden is on the . . . party
[opposing summary judgment] to demonstrate that the trial court’s decision
to grant the movant’s summary judgment [motion] was clearly erroneous.’
. . . We hereby disavow this latter statement as an inaccurate description
of the law governing appellate review of summary judgment dispositions.’’
(Citations omitted; emphasis in original; footnote omitted.) Recall Total
Information Management., Inc. v. Federal Ins. Co., 317 Conn. 46, 51–52,
115 A.3d 458 (2015).
6
The plaintiffs appear to assert that the court erred in dismissing their
contract claims against all of the defendants. The court’s decision applied
only to the defendant individually and as successor in interest. Consequently,
we cannot, and do not, address the contract claims against Bayview and
E*Trade.
7
To the extent that the plaintiffs’ arguments can be read to raise a claim
of promissory estoppel on the basis of any promise to consider a modifica-
tion, that argument was not made before the trial court and, thus, we do
not consider it. See Shook v. Bartholomew, 173 Conn. App. 813, 819,
A.3d (2017); see also Practice Book § 60-5.
8
To the extent that the plaintiffs claim that the court improperly rendered
summary judgment on their claims of reckless and intentional misrepresenta-
tion, we consider these claims to be abandoned for inadequate briefing
because the plaintiffs have failed to set forth the applicable law or analyze
these claims. See Grasso v. Connecticut Hospice, Inc., supra, 138 Conn.
App. 768.
9
That letter states: ‘‘We recently received your request for financial assis-
tance with the above captioned loan. Bank of America, N.A. understands
your situation and would like to evaluate your financial situation in order
to determine whether we can help you.’’