Valley National Bank v. Private Transerve, LLC

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VALLEY NATIONAL BANK v. PRIVATE
TRANSERVE, LLC, ET AL.
(AC 39542)
Prescott, Elgo and Harper, Js.
Syllabus
The plaintiff bank commenced this action seeking to foreclose two mort-
gages on certain properties owned by the defendant P Co. that secured
a revolving promissory note, and to enforce personal guarantees of P
Co.’s debts that were executed by the defendants J and T. The trial
court denied the defendants’ motion to dismiss in which they challenged
the plaintiff’s standing. Subsequently, the plaintiff withdrew its foreclo-
sure counts and filed an amended complaint seeking to enforce only
the personal guarantees. The court granted the plaintiff’s motion for
summary judgment as to liability only and, following a hearing in dam-
ages, rendered judgment in favor of the plaintiff, from which J and T
appealed to this court. They claimed, inter alia, that genuine issues of
material facts existed regarding the plaintiff’s ownership of the debt
and that the plaintiff lacked standing. Held that the claims of J and T
that the plaintiff lacked standing were properly rejected by the trial
court, as the record reflected that the plaintiff established through docu-
mentary and other evidence that it was the owner of the debt when this
action was commenced, and to the extent that J and T, on appeal, relied
on certain evidence to support their claim that the plaintiff did not own
the debt, that evidence merely cast doubt on whether this action was
initiated under the proper corporate name, which was never raised
before the trial court, and any such defect was amenable to correction
and did not implicate the plaintiff’s standing; moreover, the trial court’s
decision granting the plaintiff permission to file a third amended com-
plaint and its evidentiary rulings at the hearing in damages were discre-
tionary in nature and entitled to deference, and J and T failed to
demonstrate that any of those rulings relied on clearly erroneous factual
findings or a misapprehension of the law, or that the court otherwise
abused its discretion.
Argued November 28, 2017—officially released January 30, 2018
Procedural History
Action, inter alia, to foreclose a mortgage on certain
real property owned by the named defendant, and for
other relief, brought to the Superior Court in the judicial
district of Fairfield, where the defendant Geoffrey Minte
et al. were defaulted for failure to plead; thereafter,
the court, Tyma, J., denied the defendants’ motion to
dismiss; subsequently, the court, Hon. Alfred J. Jen-
nings, judge trial referee, granted the plaintiff’s motion
for summary judgment as to liability; thereafter, the
plaintiff withdrew the counts of the complaint seeking
foreclosure; subsequently, following a hearing in dam-
ages, the court, Wenzel, J., rendered judgment for the
plaintiff, from which the defendant John Tartaglia et
al. appealed to this court. Affirmed.
John Tartaglia, self-represented, with whom, on the
brief, was Linda Tartaglia, self-represented, the appel-
lants (defendant John Tartaglia et al.).
Andrew M. McPherson, with whom, on the brief, was
William J. Kupinse, Jr., for the appellee (plaintiff).
Opinion
PER CURIAM. In this action seeking, inter alia, to
enforce a personal guarantee of a mortgage note, the
defendants John Tartaglia and Linda Tartaglia,1 against
whom summary judgment as to liability only was ren-
dered, appeal following a hearing in damages from the
court’s award of $967,467.59 in favor of the plaintiff,
Valley National Bank. On appeal, the defendants argue
that the court improperly (1) denied their motion to
dismiss the action, in which they alleged that the plain-
tiff was not the owner of the debt at the time the action
was commenced and, thus, lacked standing to prose-
cute the action; (2) granted summary judgment as to
liability only despite the defendants’ insistence that gen-
uine issues of material facts existed regarding the plain-
tiff’s ownership of the debt; (3) permitted the plaintiff
to amend the complaint after summary judgment
despite the defendants’ contention that the amendment
added a new cause of action; and (4) made several
evidentiary rulings against the defendants at the hearing
in damages. We are not persuaded by the defendants’
claims and, accordingly, affirm the judgment of the
court.
The record reveals the following relevant facts and
procedural history. The plaintiff commenced the under-
lying action in January, 2011. The initial complaint con-
tained three counts. The first two counts sought to
foreclose mortgages on two multifamily residential
properties located in Bridgeport. The mortgages were
executed by Private Transerve, LLC, as security for a
revolving building promissory note of up to $500,000.
The third count sought money damages based upon
breach of an unconditional guarantee of the debts of
Private Transerve, LLC. The guarantee was executed
by the defendants and Geoffrey Minte.
On May 31, 2013, the plaintiff filed a motion for sum-
mary judgment as to liability only. The defendants,
Minte, and Private Transerve, LLC, filed an opposition.
On October 23, 2013, after argument on the motion for
summary judgment but prior to the court acting on that
motion, the defendants, Minte, and Private Transerve,
LLC, filed a motion to dismiss the action, claiming that
the plaintiff lacked standing to bring the action, and,
thus, the court lacked subject matter jurisdiction. The
plaintiff opposed the motion to dismiss.
On August 15, 2014, the court, Tyma, J., issued a
decision denying the motion to dismiss. The court
rejected all arguments that the plaintiff did not own the
debt at the time the action was commenced in January,
2011, finding on the basis of the pleadings, affidavits,
and other proof in the file that the note and mortgages
initially had been assigned from the original lender,
PAF Capital, LLC, to The Park Avenue Bank, and then,
in June, 2010, were assigned to the plaintiff by the
Federal Deposit Insurance Corporation acting as
receiver for The Park Avenue Bank. The court moreover
rejected all claims that there were problems affecting
the validity of the aforementioned assignments.
On August 17, 2015, the court, Hon. Alfred J. Jen-
nings, judge trial referee, issued a decision granting
the motion for summary judgment as to liability only
on all counts of the complaint. The court again rejected
all arguments regarding the plaintiff’s lack of standing to
prosecute the action, indicating that the original signed
note had been presented and reviewed by the court
and the defendants at the hearing on the motion for
summary judgment. The court concluded that the plain-
tiff had made ‘‘an adequate showing of the prima facie
elements of its case for foreclosure and breach of guar-
anty: ownership of the loan, default of payment, and
notice of breach.’’2
During the pendency of the underlying action, the
two properties at issue were foreclosed in separate
actions brought by Bridgeport’s water pollution control
authority. In each of those actions, the plaintiff exer-
cised its right to redeem each of the properties on its
assigned law day. As a result, the plaintiff acquired title
to the properties and rendered moot its own foreclosure
counts in the present action. Each time the plaintiff
acquired a property, it filed an amended complaint
removing the related foreclosure count, eventually leav-
ing a single count complaint seeking money damages
on the basis of the defendants’ breach of the personal
guarantee of the debt. The last such amendment was
the third amended complaint, to which the defendants
objected, arguing, inter alia, that the plaintiff was
attempting to correct defects in its prior pleadings or
to change the cause of action alleged. The court over-
ruled the defendants’ objection and permitted the
amendment.
A hearing in damages was held by the court, Wenzel,
J., on July 26 and August 2, 2016. John Tartaglia
appeared as a self-represented party at the hearing.
Linda Tartaglia and Minte did not appear. On August
11, 2016, the court issued a memorandum of decision
awarding joint and several damages totaling $967,467.59
against the defendants and Minte. This appeal followed.3
On appeal, the defendants raise a number of claims,
none of which warrants significant discussion. The
court’s granting of permission to file the third amended
complaint and its evidentiary rulings at the hearing in
damages were discretionary in nature and are entitled
to deferential review. The defendants have failed to
demonstrate that any of these rulings relied upon clearly
erroneous factual findings or a misapprehension of the
law, or that the court otherwise abused its discretion.
As they have argued throughout these proceedings,
the defendants continue to maintain that the plaintiff
lacked standing to bring this action against them. Most
of the arguments are identical to those raised in con-
junction with both the motion to dismiss and the motion
for summary judgment. On the basis of our review of
the record provided, as well as the briefs and arguments
of the parties, we are convinced that the claims raised
before the trial court regarding standing lack merit and
were properly rejected by the court for the reasons
provided in its memoranda of decision. In short, the
record reflects that the plaintiff established through
documentary and other evidence that it was the owner
of the debt at the time this action was commenced, and
it would serve no useful purpose to engage in further
discussion.
The defendants attempt to breathe new life into their
standing claim on appeal by bringing to our attention
certain testimony provided by the plaintiff’s agent at
the hearing in damages in response to his cross-exami-
nation by John Tartaglia. In that testimony, the plain-
tiff’s agent appears to agree with John Tartaglia’s
suggestion that the debt at issue was owned in 2010 by
a corporate entity, VNB New York, Corp., that merged
into and became the plaintiff sometime in 2011.4 The
defendants suggest that this response amounted to an
admission that the plaintiff did not own the debt when
the action was initiated. Rather than truly implicating
the plaintiff’s standing, however, the defendants’ argu-
ment seems only to cast doubt on whether the action
was initiated under the proper corporate name, an issue
never raised to the trial court. If such a defect exists
here, which is not entirely clear from the record before
us, it was amenable to correction in accordance with
General Statutes § 52-109 and Practice Book § 9-20, and
does not implicate the plaintiff’s status as the owner
of the debt or its standing to prosecute this action.
See NewAlliance Bank v. Schaeppi, 139 Conn. App.
94, 97–98, 54 A.3d 1058 (2012) (distinguishing between
challenges implicating proper assignment of note or
mortgage between distinct parties and nomenclature
problems arising from mergers and corporate name
changes), cert. denied, 307 Conn. 948, 60 A.3d 737
(2013).
Having thoroughly reviewed the record and the argu-
ments of the parties, we conclude that the defendants
have not met their burden of proving any of the claims
raised on appeal.
The judgment is affirmed.
1
Geoffrey Minte, Private Transerve, LLC, and Randall Properties, LLC,
also are named as defendants in the underlying action, but they did not
participate in the present appeal, and, thus, all references to the defendants
in this opinion are to the Tartaglias only. The remaining defendants are
referred to by name.
2
We note that the motion for summary judgment filed by the plaintiff
only asked the court for a finding as to liability on the foreclosure counts.
Nonetheless, in its decision, the court also granted summary judgment as
to liability on the third count based on the personal guarantee. The defen-
dants have not raised this discrepancy as an issue in the present appeal, or
argued that the trial court exceeded its authority or otherwise committed
reversible error in this regard. Absent extraordinary circumstances not pre-
sent here, this court limits its review to those claims of error actually raised
and adequately briefed by the parties. See Blumberg Associates Worldwide,
Inc. v. Brown & Brown of Connecticut, Inc., 311 Conn. 123, 161–64, 84 A.3d
840 (2014); see also id., 164 (‘‘our system is an adversarial one in which the
burden ordinarily is on the parties to frame the issues, and the presumption
is that issues not raised by the parties are deemed waived’’).
3
John Tartaglia, who is not an attorney, initially filed this appeal as a
self-represented party, purportedly on his own behalf and on behalf of Linda
Tartaglia. Linda Tartaglia subsequently filed a joint appeal consent form in
compliance with Practice Book § 61-7 (a) (3). The defendants submitted a
joint brief.
4
We note that the transcript of the August 2, 2016 proceeding indicates
that John Tartaglia misstated to the witness that the complaint had been
filed in 2010. The record, however, shows that it was filed in February, 2011,
shortly after this action was commenced.