by Benjamin Staskiewicz, Esq.

Bendett & McHugh, P.C.
USFN Member (CT, MA, ME, NH, RI, VT)

In OneWest Bank, N.A., v. Ceslik, Connecticut’s intermediary court of appellate jurisdiction, the Appellate Court, issued a decision on February 2, 2021, which affirmed the entry of judgment at the trial court level in a heavily contested residential foreclosure action based upon the defendant’s default on a reverse mortgage for failure to maintain insurance and pay property taxes as required by the note and mortgage.  The foreclosure defendant raised five issues on appeal: 1) rejection of his defense of laches; 2) plaintiff’s lack of standing; 3) plaintiff’s reliance on purported fraudulent and defective assignments; 4) denial of his motion to dismiss; and 5) lack of due process regarding his post-appeal motion for judgment. 

The defendant, in response to plaintiff’s complaint, filed numerous affirmative defenses, including the defense of laches.  The plaintiff filed a motion for summary judgment[i] to dispose of the defendant’s defenses and establish its prima facie case for foreclosure.  After briefing and argument, the trial court granted summary judgment finding that plaintiff established its prima facie case for foreclosure based upon the supporting affidavit and exhibits.  The trial court further determined that the special defenses raised by the defendant were legally insufficient and that the defense of laches lacked any specificity. 

The defendant thereafter filed a motion to dismiss claiming that the court lacked jurisdiction because plaintiff brought a prior foreclosure action that was subsequently withdrawn prior to the institution of the present case. The defendant’s motion was denied, and the plaintiff then moved for, and the trial court granted, a judgment of strict foreclosure.  The defendant’s appeal followed. Some five months after the appeal was filed, the defendant filed a motion for judgment with the trial court claiming that plaintiff lacked standing.  The trial court, after guidance from the Appellate Court, held a hearing on defendant’s motion for judgment and denied the motion.

The first appellate issue raised by the defendant related to the defense of laches.  The trial court, in granting plaintiff’s motion for summary judgment, found that the laches defense was legally insufficient, in that defendant failed to plead any facts that would satisfy the elements of laches.  The defendant failed to address the legal sufficiency of the defense in his appeal and instead focused his argument on the evidence that he believed supported the laches defense.  The Appellate Court did not accept defendant’s attempt to subvert the procedural rules of the court and instead held that the defendant failed to challenge the use of the summary judgment process to determine legal sufficiency of the laches defense and that defendant further failed to challenge the trial court’s legal conclusion that the defense was not properly pled.

The second appellate issue related to the trial court’s denial of the defendant’s post-appeal motion for judgment which was based on a claim that plaintiff lacked standing.  The defendant was unable to introduce any evidence at the hearing as to plaintiff’s lack of standing and attempted to rely on hearsay evidence which was not permitted by the trial court.  The defendant was unable to rebut the presumption that plaintiff had standing which arose after plaintiff had presented the original, endorsed note to the court.  The Appellate Court concluded the trial court properly determined plaintiff had standing to foreclose.

The third appellate issue related to defendant’s allegations that assignments of mortgage relied upon by plaintiff were fraudulent and/or defective.  The Appellate Court found that defendant failed to proffer any admissible evidence to support such a claim and found this claim without merit.

The fourth appellate issue related to the denial of defendant’s motion to dismiss based upon a prior foreclosure action being withdrawn.  The Appellate Court held that defendant failed to allege that plaintiff withdrew the first action for an improper purpose and thus plaintiff was entitled to withdraw the action, leading to the conclusion that the trial court did not make an error in disposing of the motion to dismiss.

The last appellate issue claimed a lack of due process relating to the post-appeal hearing on the motion for judgment.  The defendant’s argument was that he was unable to review plaintiff’s arguments and case law before the hearing.  The Appellate Court declined to review this issue as defendant never filed a timely appeal as to that ruling or amended the current appeal. 

This case illustrates the length to which a foreclosure defendant may attempt to challenge a foreclosure in Connecticut and further punctuates the importance of ensuring all evidence and documents are proper and fully reviewed by both the foreclosing plaintiff and counsel.  As a foreclosing plaintiff does not know in advance which case will be contested, every foreclosure in a judicial state must be prepared as if every step will be challenged.