Opinion
FSTCV116009219S.
12-19-2012
WELLS FARGO BANK, N.A. as Trustee v. Robert TREGLIA et al.
UNPUBLISHED OPINION
GENUARIO, J.
The plaintiff brings this foreclosure action by summons and complaint which are returnable to the judicial district of Stamford/Norwalk at Stamford on May 10, 2011. The plaintiff brings this action against four defendants. Plaintiff alleges that each defendant has the following interest in the property: Robert Treglia is alleged to be the sole owner of the property by virtue of a quit claim deed recorded on August 30, 2002 in volume 4559 at page 122 of the Norwalk land records. The plaintiff alleges that the defendant Robert Treglia and Edna Treglia (now deceased) executed and delivered to the plaintiff's predecessor a note and mortgage dated August 29, 2002 and recorded on August 30, 2002 in volume 4559 at page 108 of Norwalk land records. The plaintiff alleges that the defendant Robert P. Keyes has an interest in the case because he was appointed the administrator of the estate of Edna N. Treglia by the Norwalk Probate Court on December 15, 2003 and that the defendant Keyes may have possession of assets of the estate which can be used to satisfy any deficiency; plaintiff alleges that the defendant Michael Treglia claims an interest in the property by virtue of two lis pendens recorded on July 17, 2003 and September 16, 2003 both in the Norwalk land records; the plaintiff alleges that the defendant Patrick Treglia claims an interest in the property by virtue of a lis pendens dated October 5, 2004 and recorded in the Norwalk land records October 7, 2004.
The defendant Robert Treglia was defaulted for failure to appear on May 31, 2011. The defendant Robert Keyes, administrator was defaulted for failure to plead on June 23, 2011; the defendant Patrick Treglia was defaulted for failure to plead on October 19, 2011. The only non-defaulted party, the defendant Michael Treglia, filed an answer in special defense dated January 23, 2012 which was replied to by the plaintiff on January 31, 2012 closing the pleadings as to the plaintiff and the only non-defaulted defendant as of January 31, 2012. On February 22, 2012 the defendant Michael Treglia filed a cross complaint against the defendant Patrick Treglia.
On August 10, 2012 plaintiff filed a motion for summary judgment with supporting affidavits and memorandum of law. The court granted several motions for continuance, filed by the defendant Patrick Treglia, of the hearing on the motion for summary judgment. On November 2, 2012 the court denied the plaintiff's last motion for continuance and accordingly a hearing was held on November 5, 2012 on the plaintiff's motion for summary judgment. The only parties at the hearing were the plaintiff and the defendant Patrick Treglia. Notably the only non-defaulted defendant, Michael Treglia, has filed no affidavit, memorandum of law or objection to the plaintiff's motion for summary judgment. The morning of the hearing the defendant Patrick Treglia filed an objection to the motion for summary judgment, a motion to open the default for failure to plead, an answer, special defense and counterclaim as well as a cross complaint and answer to the cross complaint of the defendant Michael Treglia. At the close of oral argument on November 5th the court allowed both parties to provide a supplemental memorandum of law to be simultaneously filed on November 14th and both parties have done so.
Before considering the plaintiff's motion for summary judgment, the court needs to rule on the defendant Patrick Treglia's motion to open default since the defendant Patrick Treglia is precluded from making any further defense to this action unless and until the default is opened. " The entry of the default operates as a confession by the defaulted defendant of the truth of the material facts alleged in the complaint which are essential to a judgment. Thus, the defaulted defendant is precluded from making any further defense to this action." Costello v. Hartford Institute of Accounting, Inc., 193 Conn. 160, 161, United National Indemnity Co. v. Zullo, 143 Conn. 124, 129-30 (1956).
The defendant Patrick Treglia argues first that the default must be opened as a matter of right because Connecticut Practice Book section 17-32 requires the clerk to set aside a default entered for failure to plead if the defaulted party files an answer before a judgment after default has been rendered. However, the court finds that it is the second sentence of section 17-32(b) that controls. " If a claim for hearing and damages or a motion for judgment has been filed, the default may be set aside only by the judicial authority." In the case at bar the plaintiff filed a motion for summary judgment on August 11, 2012 almost three months before the defendant filed his motion to open the default. In general, section 17-32(b) provides a defendant with some protection, in that it prevents a claim for a hearing and damages or a motion for judgment from being filed before the expiration of 15 days after the notice of the issuance of the default. However, in this case the plaintiff's motion for judgment was filed almost ten months after the defendant had been defaulted. Accordingly, the decision of whether or not to open the default is one that is within the court's discretion. In determining whether or not to exercise that discretion the court is guided by Practice Book section 17-42 which states " a motion to set aside a default when no judgment has been rendered may be granted by the judicial authority for good cause shown." See Snowdon v. Grillo, 114 Conn.App. 131 (2009). In the instant case the defendant has offered no credible justification for the failure to plead within the time allowed by law, or for failure to move to open the default within a reasonable time thereafter. There is no claim that the defendant did not get notice of the default, there is no claim that the defendant was prevented in any way from filing a responsive pleading; and there is no claim that the defendant was prevented from filing a motion to open the default at an earlier date.
Indeed the defendant seems to be subtly implying in his memorandum that the reason for the defendant's failure to more actively defend this case was that the defendant Patrick Treglia was " waiting for the administrator to take action and avoid duplicate expenses." However, the administrator was defaulted on June 23, 2011 almost four months before the defendant Patrick Treglia was defaulted and has filed nothing and taken no action before the court that would have given anyone any indication that the administrator intended to actively defend this foreclosure action. Moreover, the defendant Patrick Treglia's position that he may have been delayed in filing pleadings because he was waiting for the administrator, seems to be inconsistent with the very position taken by the defendant Patrick Treglia, which is that it is the heirs at law as opposed to the administrator who have the right to assert certain defenses.
Finally, since both parties refer to a prior action brought by the plaintiff to foreclose the mortgage which is the subject of this action, the court will take judicial notice of those proceedings. In the case of Wells Fargo Bank, N.A. v. Robert Treglia et al., Docket No. FST CV 065001250, plaintiff brought an action, in 2006, to foreclose the mortgage which is the subject of this case. The defendant Patrick Treglia in that case asserted a counterclaim against the plaintiff. The plaintiff eventually withdrew its complaint, the defendant Patrick Treglia did not withdraw his counterclaim. The court however dismissed the counterclaim holding that the defendant Patrick Treglia lacked standing to pursue the claims that are virtually identical to the claims asserted as defenses and counterclaims in this action. The court (Jennings, J.) ruled that the defendant Patrick Treglia as an heir at law did not have standing to raise claims against the plaintiff therein which were originally claims of the decedent. The court held that it was the administrator of the decedent's estate, consistent with the Conn. Gen.Stat. § 52-599, that had the right to raise those issues. The court further observes that the defendant Patrick Treglia filed an appeal of the court's decision to dismiss its counterclaim with the Appellate Court of the State of Connecticut. The court observes that that appeal was dismissed on October 18, 2011 as a result of the defendant Patrick Treglia's failure to file a court reporter's acknowledgment including an estimated delivery date. This court does not need to rule on whether or not the defendant Patrick Treglia is collaterally estopped from raising the issues that it seeks to raise in its answer, special defenses and counterclaim. The court does observe that the defendant Patrick Treglia has had ample opportunity to litigate all of the issues he now raises, most importantly, by filing timely pleadings in the case at bar. Nor does the court agree with the defendant Patrick Treglia that there is no prejudice that would result from an opening of the default. According to the unrebutted affidavit filed by the plaintiff in connection with the motion for summary judgment, payment of principal or interest has not been made since February 1, 2006. The plaintiff has advanced money for taxes and hazard insurance. The result is that the principal balance of the loan at one time had been reduced to $168, 649.32, the total amount that the plaintiff now claims is $322, 066.90. The plaintiff may be prejudiced by accruing interest and costs beyond the value of the property securing the loan. Even if there is adequate value in the property, other co-defendants in this case may be prejudiced by further delay since the accrual of additional debt may diminish or exhaust the assets of the estate. This of course does not suggest that any defendant cannot at the appropriate time raise, assert and prosecute appropriate defenses to a foreclosure action. However, there can be adverse ramifications to other parties by the unreasonable delay. In the case at bar the defendant Patrick Treglia failed to plead within the time allowed by law and was defaulted for such failure on October 19, 2011, more than a year ago. This defendant could have preserved its rights by filing a pleading even after it had been defaulted at any time prior to filing of the motion for summary judgment by the plaintiff on August 10, 2012, a period of almost ten months. The defendant chose not to file such a responsive pleading though he had ample time to do so. Subsequent to the filing of the motion for summary judgment the defendant failed to file a motion to open the default until November 5, 2012, the morning of the hearing on the motion for summary judgment, a period of almost three months after the motion for summary judgment was filed. The defendant Patrick Treglia is correct that the issue of whether or not to open the default is an issue that is within the discretion of the court. The court, under all the circumstances, denies the defendant Patrick Treglia's motion to open the default.
The court now turns to the plaintiff's motion for summary judgment. All defendants except Michael Treglia having been defaulted, have confessed to the truth of the material facts alleged in the complaint essential to a judgment. Costello, supra. The defendant Michael Treglia has not been defaulted but the defendant Michael Treglia has not filed any objection, memorandum, documentation, or affidavit in opposition to the motion for summary judgment. " As the party moving for summary judgment the plaintiff is required to support its motion with supporting documentation including affidavits." Heymen Associates No. 1 v. Insurance Company of Pennsylvania, 231 Conn. 756, 796 (1995). Likewise " [t]he existence of the genuine issue of material fact must be demonstrated by counter affidavits and concrete evidence." Little v. Yale University, 92 Conn.App. 232, 235 (2005), cert. denied, 276 Conn. 936 (2006) (internal quotations omitted)." The affidavit filed by the plaintiff in support of its motion for summary judgment evidences that the defendant Robert Treglia and the decedent Edna Treglia executed a note and mortgage in favor of Option One Mortgage Corporation, the plaintiff's predecessor in interest which mortgage was duly recorded in the Norwalk land records. The affidavit further evidences as a result of a series of transactions the plaintiff is now the holder of the note and mortgage and was in physical possession of the original note at the time the foreclosure was filed. The affidavit evidences that the defendant Robert Treglia and the defendant Robert Keyes as well as the decedent failed to make monthly mortgage payments since February 1, 2006 and that they are in default under the note for failure to make the payments required. The affidavit evidences that the parties were duly notified and they failed to cure the defaults. The plaintiff exercised its right under the note and mortgage documents to accelerate the unpaid principal balance. The affidavit evidences in some detail that the total amount due as of August 10, 2012 was $322, 066.90 and that there are no valid set-offs or counterclaims as to the debt due. The affidavit is supported by attached documentation identified by the affiant that further support the statements contained in the affidavit. The court finds that the affidavits and documentation submitted by the plaintiff in support of its motion are (1) based on personal knowledge, (2) constitute facts that would be admissible at trial, and (3) affirmatively show that the affiant is competent to testify to the matter stated in the affidavit. See Barrett v. Danbury Hospital, 232 Conn. 242, 251 (1995). The non-defaulted defendant Michael Treglia having submitted no affidavits or documentation in opposition to the motion for summary judgment and the other defendants having been defaulted, the court finds that there is no genuine issue of material fact that a judgment should enter in favor of the plaintiff. Accordingly, the motion for summary judgment is granted as to liability only.