Deutsche Bank National Trust Co. v. Pollard

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DEUTSCHE BANK NATIONAL TRUST COMPANY,
TRUSTEE v. ALVIN POLLARD ET AL.
(AC 40259)
Lavine, Bright and Bishop, Js.
Syllabus
The plaintiff bank sought to foreclose a mortgage on certain real property
of the defendant P, who filed an answer with special defenses and
a six count counterclaim. The counterclaim contested, inter alia, the
plaintiff’s standing to bring the foreclosure action and alleged that the
mortgage lien and underlying debt had been discharged in bankruptcy.
Thereafter, the plaintiff filed a motion for summary judgment as to
liability on its complaint and on the counterclaim. The trial court granted
the motion for summary judgment, and P appealed to this court. In an
articulation of its decision, the trial court stated that it had granted the
motion for summary judgment on the ground of legal insufficiency and
because the counterclaim did not relate to the making, validity or
enforcement of the note or mortgage, and, therefore, failed to satisfy
the transaction test. This court, thereafter, dismissed the portion of P’s
appeal challenging the trial court’s granting of the motion for summary
judgment as to liability on the complaint for lack of a final judgment.
Held that the trial court properly rendered summary judgment in favor
of the plaintiff on P’s counterclaim; that court aptly applied the transac-
tion test and did not abuse its discretion in determining that the claims
asserted in the counterclaim did not have a sufficient nexus to the
making, validity or enforcement of the note or mortgage to survive
summary judgment, and other than a broad and conclusory claim in his
appellate brief that the court construed the transaction test too narrowly,
P provided this court with no argument specific to any claim in his
counterclaim and failed to set forth any reasoning in support of his
contention that the counterclaim fell within the parameters of the trans-
action test.
Argued April 18—officially released June 5, 2018
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
Hartford, where the named defendant filed a counter-
claim; thereafter, the court, Dubay, J., granted the plain-
tiff’s motion for summary judgment as to liability on
the complaint and on the counterclaim and rendered
judgment for the plaintiff on the counterclaim; subse-
quently, the court, denied the named defendant’s
motion to reargue, and the named defendant appealed
to the court; thereafter, the court, Dubay, J., issued
an articulation of its decision; subsequently, this court
dismissed the appeal in part. Affirmed.
Alvin Pollard, self-represented, the appellant
(defendant).
Melanie Dykas, with whom, on the brief, was Tara
L. Trifon, for the appellee (plaintiff).
Opinion
PER CURIAM. In this foreclosure action, the self-
represented defendant Alvin Pollard1 appeals from the
trial court’s rendering of summary judgment in favor
of the plaintiff, Deutsche Bank National Trust Com-
pany,2 as to liability on the complaint and rendering
summary judgment in favor of the plaintiff on the defen-
dant’s counterclaim. The defendant appeals, as well,
from the court’s denial of his motion to reargue. We
affirm the judgment of the trial court as to the defen-
dant’s counterclaim.
The following facts and procedural history are rele-
vant to our discussion of the issues on appeal. By com-
plaint dated August 14, 2015, the plaintiff brought this
action against the defendant to foreclose a mortgage
on residential property located at 6 Wild Rose Court in
Bloomfield. The loan indebtedness and related mort-
gage arose in conjunction with a loan to the defendant
from the plaintiff’s predecessor in interest, New Cen-
tury Mortgage Corporation. In response, by pleading
dated September 14, 2015, the defendant filed an
answer, numerous special defenses and a six count
counterclaim contesting, inter alia, the plaintiff’s stand-
ing to bring this action and alleging that the mortgage
lien and underlying debt in question had been dis-
charged in bankruptcy. Thereafter, on April 6, 2016, the
plaintiff moved for summary judgment as to liability
on its complaint and the counterclaim asserted by the
defendant. On January 6, 2017, the court granted the
plaintiff’s motion for summary judgment. Subsequently,
on March 3, 2017, the court denied the defendant’s
motion to reargue. This appeal followed.
During the pendency of this appeal, the trial court,
on prompting from this court, articulated its reasons
for granting the motion for summary judgment. On April
27, 2017, the court stated that it had granted the motion
for summary judgment as to liability on the plaintiff’s
complaint and that the eight special defenses and the
six count counterclaim filed by the defendant were
legally insufficient to the extent they could be compre-
hended. The court stated, as well, that the special
defenses and counterclaim did not satisfy the transac-
tion test requiring that they relate to the making, validity
or enforcement of the note or mortgage.
Also, while this appeal was pending, this court dis-
missed the portion of the defendant’s appeal regarding
the trial court’s granting of the motion for summary
judgment as to liability on the complaint on the ground
that the court’s order in this regard is not a final judg-
ment. See Danbury v. Hovi, 34 Conn. App. 121, 123,
640 A.2d 609 (1994) (appeal dismissed for lack of final
judgment when trial court rendered summary judgment
as to liability only); see also Essex Savings Bank v.
Frimberger, 26 Conn. App. 80, 597 A.2d 1289 (1991)
(appeal dismissed for lack of final judgment from sum-
mary judgment on plaintiff’s complaint when ‘‘[t]rial
court has yet to determine the amount of the debt, the
attorney’s fees, or even whether the foreclosure shall
be strict or by sale’’). Accordingly, all that remains for
this court to decide on review is the defendant’s claim
that the court incorrectly rendered summary judgment
as to his counterclaim.3
In brief, the defendant argues that the court too nar-
rowly construed the transaction test in determining that
his counterclaim did not relate to the making, validity
or enforcement of the note or mortgage.4 As a result,
the defendant asserts that the court erred in rendering
summary judgment in favor of the plaintiff. ‘‘Our review
of the decision to grant a motion for summary judgment
is plenary.’’ (Internal quotation marks omitted.) U.S.
Bank National Assn. v. Sorrentino, 158 Conn. App. 84,
94, 118 A.3d 607, cert. denied, 319 Conn. 951, 125 A.3d
530 (2015). ‘‘The transaction test is one of practicality,
and the trial court’s determination as to whether that
test has been met ought not be disturbed except for an
abuse of discretion.’’ (Internal quotation marks omit-
ted.) Morgera v. Chiappardi, 74 Conn. App. 442, 449,
813 A.2d 89 (2003).
Other than a broad and conclusory claim that the
court too narrowly construed the transaction test, the
defendant has provided this court with no argument
specific to any count of his counterclaim; nor has he
set forth any reasoning in support of the notion that his
pleadings fall within the parameters of the transaction
test.5 Although we recognize and adhere to the well-
founded policy to accord leeway to self-represented
parties in the appeal process, our deference is not
unlimited; nor is a litigant on appeal relieved of the
obligation to sufficiently articulate a claim so that it is
recognizable to a reviewing court. ‘‘[I]t is the established
policy of the Connecticut courts to be solicitous of [self-
represented] litigants and when it does not interfere
with the rights of other parties to construe the rules of
practice liberally in favor of the [self-represented] party.
. . . This rule of construction has limits, however.
Although we allow [self-represented] litigants some lati-
tude, the right of self-representation provides no atten-
dant license not to comply with relevant rules of
procedural and substantive law. . . . In addition, while
courts should not construe pleadings narrowly and
technically, courts also cannot contort pleadings in
such a way so as to strain the bounds of rational compre-
hension.’’ (Internal quotation marks omitted.) Mourn-
ing v. Commissioner of Correction, 120 Conn. App.
612, 624–25, 992 A.2d 1169, cert. denied, 297 Conn. 919,
996 A.2d 1192 (2010); see also Rutka v. Meriden, 145
Conn. App. 202, 218, 75 A.3d 722 (2013).
On the basis of our thorough review of each count
of the defendant’s counterclaim, we conclude that the
court aptly applied the transaction test and did not
abuse its discretion in determining that the matters
asserted therein by the defendant did not have a suffi-
cient nexus to the making, validity or enforcement of
the note or mortgage to survive summary judgment.
See U.S. Bank National Assn. v. Sorrentino, supra, 158
Conn. App. 97.
The judgment is affirmed as to the counterclaim.
1
Wynfield Homeowners Association, Inc., New Century Mortgage Corpo-
ration, United States of America, Secretary of Department of Housing and
Urban Development, State of Connecticut, Department of Revenue Services,
and University of Connecticut Health Center-John Dempsey Hospital also
were named as defendants but are not parties to this appeal. We therefore
refer in this opinion to Pollard as the defendant.
2
The plaintiff is acting as trustee for New Century Home Equity Loan
Trust, Series 2005-D, Asset Backed Pass-Through Certificates.
3
We briefly comment on the defendant’s argument that his discharge in
bankruptcy served to release the subject property from the plaintiff’s lien
securing the underlying debt. The following additional information is perti-
nent to this claim.
The record reflects that the defendant filed a bankruptcy petition under
chapter 7 of the United States Bankruptcy Code, 11 U.S.C. § 701 et seq., in
the United States Bankruptcy Court for the District of Connecticut on May
5, 2016, and that he received a discharge in bankruptcy under 11 U.S.C.
§ 727 on August 31, 2016. He claims this occurrence served to relieve him
not only of the obligation reflected in the note, but also as a result of the
bankruptcy discharge, the plaintiff no longer has a lien on his property. He
is incorrect. Apparently, the defendant has the mistaken belief that because
he did not list the plaintiff therein as a secured creditor in his bankruptcy
petition but, rather, claimed, in his filing, that the debt alleged by the plaintiff
was unsecured, he is not only discharged from the underlying obligation
but that the plaintiff’s security interest in the subject property is no longer
valid. In making this assertion, the defendant, however, highlights a misun-
derstanding of bankruptcy law; he also ignores the clear statement made
by his assigned bankruptcy trustee in papers filed in conjunction with his
bankruptcy proceedings that secured obligations are not subject to discharge
in the chapter 7 filing. As part of its order of discharge, the Bankruptcy
Court noted that ‘‘a creditor with a lien may enforce a claim against the
debtors’ property subject to that lien unless the lien was avoided or elimi-
nated.’’ There is no evidence of either occurrence. In short, the defendant
is under an incorrect apprehension of the legal effect of his discharge
in bankruptcy.
4
‘‘[I]n assessing the legal viability of counterclaims to a foreclosure action,
the court should employ the transaction test set forth in Practice Book § 10-
10, and . . . although this test may require an assessment of whether the
counterclaim in question relates to the making, validity or enforcement of
the subject note and mortgage, there can be such a nexus even though the
counterclaim may not directly attack the making, validity or enforcement
of the mortgage and note which form the basis of the foreclosure complaint.’’
CitiMortgage, Inc. v. Rey, 150 Conn. App. 595, 605–606, 92 A.3d 278 (trial
court incorrectly struck defendant’s counterclaim because it satisfied trans-
action test), cert. denied, 314 Conn. 905, 99 A.3d 635 (2014).
5
We also note that the defendant did not raise the transaction test argu-
ment in his objection to the plaintiff’s motion for summary judgment. This
court typically will not review arguments raised for the first time on appeal
to prevent trial by ambuscade. See, e.g., Billboards Divinity, LLC v. Com-
missioner of Transportation, 133 Conn. App. 405, 411, 35 A.3d 395, cert.
denied, 304 Conn. 916, 40 A.3d 783 (2012). We review this claim in this
instance only because the court, in its decision, expressly found that the
counterclaim did not meet the transaction test.