Wells Fargo Bank, N.A. v. Owen

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WELLS FARGO BANK, N.A. v. OWEN—DISSENT

FLYNN, J., dissenting. Those who have sat in the
busy trial courts engaged in the challenging business
of what Whittier once described as the ‘‘doubtful bal-
ance of rights and wrongs,’’ know that some cases merit
a second look on appeal. In my view, this case requires
such a second look. In late 2005, the defendants Marlene
E. Owen and William S. Owen executed two mortgages
on their 22 Bayberry Hill Road property, including the
mortgage that is the subject of this foreclosure action,
in favor of Mortgage Electronic Registration Systems,
Inc., as nominee for WMC Mortgage Corporation
(WMC).1 The subject mortgage later was assigned to
the plaintiff, Wells Fargo Bank, N.A., as Trustee for the
Holders of the Merrill Lynch Mortgage Investors Trust,
Mortgage Loan Asset-Backed Certificates, Series 2006-
WMCI, in September, 2012. After the mortgage pay-
ments proved unsustainable for the defendants, the
plaintiff commenced this action and ultimately obtained
a judgment of strict foreclosure on May 18, 2015. A few
months later, after retaining a lawyer, the defendants
moved to open the judgment of strict foreclosure pursu-
ant to General Statutes § 49-152 in an attempt to save
their home. In support of their motion, the defendants
submitted a sworn affidavit—along with a federal tax
return and their original mortgage loan application—
averring that they were fraudulently induced into exe-
cuting the two mortgages; see footnote 1 of this dis-
senting opinion; by an agent of the plaintiff’s
predecessor in interest, WMC. After hearing arguments,
the trial court denied the defendants’ motion to open
on the papers. In my view, this was a mistake. The
affidavit, together with the attachments, set forth more
than mere unsupported allegations of fraud. Arguably,
these submissions were sufficient to warrant opening
the judgment. In any event, the defendants certainly
satisfied their threshold burden of presenting more than
unsubstantiated speculation. Therefore, the court rea-
sonably should have set the motion down for an eviden-
tiary hearing. Accordingly, I would reverse the court’s
judgment and remand the case for further proceedings.
I acknowledge that where, as in the present case, ‘‘a
party seeks to open and vacate a judgment based on
new evidence allegedly showing the judgment is tainted
by fraud, he must show, inter alia, that he was diligent
during trial in trying to discover and expose the fraud,
and that there is clear proof of that fraud.’’3 (Internal
quotation marks omitted.) Chapman Lumber, Inc. v.
Tager, 288 Conn. 69, 107, 952 A.2d 1 (2008). Our case
law recognizes, however, that parties seeking to open
a judgment on the basis of fraud need only make a
threshold showing substantiating their claim beyond
mere speculation or suspicion; upon making that show-
ing, they become entitled to an evidentiary hearing to
determine whether clear proof of the fraud exists. In
Tyler E. Lyman, Inc. v. Lodrini, 78 Conn. App. 684,
690, 828 A.2d 681, cert. denied, 266 Conn. 917, 833 A.2d
468 (2003), this court held that ‘‘[b]ecause the [trial]
court’s exercise of discretion in ruling on the motion
to open [the judgment] was dependent on the disputed
factual issue of fraud, due process required that the
[trial] court hold an evidentiary hearing on that issue.
. . . The [trial] court, therefore, abused its discretion
in ruling on the matter without affording the parties
the opportunity to present evidence with regard to the
defendant’s fraud claim.’’ (Citation omitted.) In Chap-
man Lumber, Inc. v. Tager, supra, 69, our Supreme
Court rejected the defendant’s claim that the trial court
abused its discretion by denying his motion to open
without first conducting an evidentiary hearing because
it was ‘‘obvious . . . that the defendant had no evi-
dence in support of his allegations [of fraud], but rather,
sought to go on a fishing expedition in the hope of
discovering some.’’ Id., 108. Significantly, however, the
court did not foreclose the proposition that a party
could be entitled to a hearing under other circum-
stances, observing that ‘‘[t]o be entitled to a hearing,
the defendant needed to make some threshold showing
that his claims had substance, which he failed to do.’’
(Emphasis added.) Id. Indeed, this court previously has
approved a trial court’s position that ‘‘[i]f the plaintiff
was able to substantiate her allegations of fraud beyond
mere suspicion, then the court would open the judg-
ment for the limited purpose of discovery, and would
later issue an ultimate decision on the motion to open
after discovery had been completed and another hear-
ing held.’’ Oneglia v. Oneglia, 14 Conn. App. 267, 270,
540 A.2d 713 (1988).4
This rule entitling parties to an evidentiary hearing
after making the requisite threshold showing makes
good sense—requiring parties to demonstrate ‘‘clear
proof’’ of the fraud based solely on affidavits and the
paper record, without an evidentiary hearing, will in
many cases be an insurmountable burden. This is
because fraud claims inevitably involve ‘‘questions of
motive, intent and subjective feelings and reactions’’;
(internal quotation marks omitted) Barasso v. Rear Still
Hill Road, LLC, 81 Conn. App. 798, 806, 842 A.2d 1134
(2004); and affidavits setting forth only one party’s ver-
sion of the facts can sometimes be deemed inadequate
to prove such issues. See id. Our Supreme Court has
observed that the ‘‘summary judgment procedure is par-
ticularly inappropriate’’ for resolving questions of fraud-
ulent intent. Town Bank & Trust Co. v. Benson, 176
Conn. 304, 309, 407 A.2d 971 (1978). Rather, ‘‘[i]t is only
when the witnesses are present and subject to cross-
examination that their credibility and the weight to be
given to their testimony can be appraised.’’ (Internal
quotation marks omitted.) Barasso v. Rear Still Hill
Road, LLC, supra, 806. In light of this practical reality,
in-court testimony is sometimes necessary to determine
whether ‘‘clear proof’’ of the fraud exists.
Applying these principles, even if the court concluded
that the affidavit and its supporting documents were
not enough, standing alone, to warrant opening the
judgment, I do not believe that the court reasonably
could have concluded that the defendants had not met
the threshold for entitlement to a further evidentiary
hearing on their motion to open. In his sworn affidavit,
William attested to the following facts concerning the
making of the mortgages: (1) that before executing the
two mortgages, he expressed concerns about his ability
to afford them, particularly because they represented
100 percent financing on the property, required greater
monthly payments than he was used to, and carried a
substantial $45,457.89 balloon payment;5 (2) that an
agent of WMC convinced him to ignore such concerns
by falsely claiming that similarly structured mortgages
‘‘were common and usual’’ and that, ‘‘based on the value
of the property,’’ he could ‘‘certainly’’ refinance the
mortgages to avoid the balloon payment; (3) that he
would not have agreed to the mortgage loans, given
their ‘‘substantial initial costs and unaffordable bur-
dens,’’ but for these misrepresentations; and (4) that
WMC falsely listed Marlene’s monthly income as $5000
in the loan application when in fact it was only $2100.
The defendants also submitted copies of their loan
application and Marlene’s 2004 tax returns, showing
that she earned just over $2100 per month that year,
and that her income was listed as $5000 on the applica-
tion. The plaintiff never filed a counteraffidavit rebut-
ting any of the defendants’ assertions, nor did it offer
any rebuttal testimony or documentary evidence. Argu-
ments by the plaintiff’s counsel in opposition are not
sworn, and are not evidence.
The defendants’ submissions raised a substantial
question about whether the defendants were fraudu-
lently induced into entering the two mortgages. Indeed,
this court recently has held that knowingly false state-
ments to a borrower about the affordability of a loan
can form the basis for a claim of fraud in the induce-
ment. See Bank of America, N.A. v. Aubut, 167 Conn.
App. 347, 382–83, 143 A.3d 638 (2016). That the defen-
dants presented documentary evidence suggesting that
Marlene’s income was improperly inflated—by almost
140 percent—bolsters their claim that the ultimate judg-
ment of strict foreclosure was tainted by fraud. I also
do not agree with the majority’s characterization of
William’s affidavit as mere ‘‘allegations’’ of fraud. Sworn
statements of fact set forth in an affidavit, concerning
matters about which the affiant has personal knowl-
edge, are not mere allegations entitled to no weight;
they are actual evidence of the truth of those facts.
That our judicial system accords affidavits the weight
of evidence in a variety of contexts bears that out.
Indeed, the plaintiff in the present case proved the
underlying mortgage debt by submitting an affidavit of
debt. In the marital dissolution context, this court held
that a defendant’s child support guidelines worksheet
was sufficiently ‘‘based on underlying evidence,’’ includ-
ing, inter alia, a financial affidavit. McKeon v. Lennon,
155 Conn. App. 423, 444, 109 A.3d 986 (2015), rev’d in
part on other grounds, 321 Conn. 323, 138 A.3d 242
(2016). Affidavits also suffice in prejudgment remedy
proceedings to establish probable cause that the moving
party will prevail on the merits. See General Statutes
§ 52-278c (a) (2).
Additionally, the transcript of the July 20, 2015 short
calendar hearing, at which the defendants’ motion was
heard, does not reflect that the trial court applied any
of the previously discussed principles.6 Instead,
although the precise basis for the court’s decision is
not entirely clear, the court expressed skepticism about
the merits of the defendants’ fraud claim because they
had an opportunity to review the allegedly inflated
income statement during the closing, and because they
executed the mortgage to consolidate their credit card
debt. There is no evidence in the record, however, to
suggest that the defendants had an opportunity to
review the loan application at the loan closing or that
the proceeds from the mortgage being foreclosed satis-
fied their credit card debt. Indeed, William Owen explic-
itly disputed the proposition that the mortgage, in any
manner, was related to their credit card debt. Thus, the
stated basis for the court’s decision only underscores
the need for an evidentiary hearing if the court was
not satisfied that the affidavit and attached documents
established clear proof of the fraud.
In sum, this is not a case in which the defendants
were ‘‘not able to substantiate [their] allegation of fraud
beyond the realm of speculation and mere suspicion.’’
Bank of America, N.A. v. Thomas, 151 Conn. App. 790,
805, 96 A.3d 624 (2014). Accordingly, if the court
deemed it needed more than the unrebutted affidavit
and attachments, an evidentiary hearing at which the
plaintiff and the defendants would present relevant evi-
dence was necessary for the court to reasonably and
properly exercise its discretion in ruling on the defen-
dants’ motion to open. See Tyler E. Lyman, Inc. v.
Lodrini, supra, 78 Conn. App. 690. A short calendar,
like the calendar proceeding on the defendants’ motion
to open, is generally not the time or place to take
extended witness testimony. The court nonetheless
could have scheduled the case for a hearing at a later
date.7 The court’s failure to do so despite the genuine
and critically important issues raised by the defendants’
motion to open and supporting evidence, in my judg-
ment, was a mistake, and its denial of the defendants’
motion an abuse of discretion.
Finally, I do not fault the defendants for their delay
in identifying and raising their claim of fraud in the
inducement until after the judgment of foreclosure was
rendered. The defendants, who generally were unso-
phisticated in financial transactions and thus in a poor
position to recognize the factual basis for a claim of
fraud, remained self-represented until April 13, 2015,
by which point the plaintiff already had moved for the
judgment of strict foreclosure. After the defendants
obtained the benefit of counsel, it then took time for
their lawyer to obtain and review the evidence and
formulate their fraud claim. Indeed, the defendants
obtained Marlene’s 2004 tax returns from a decade
before this foreclosure action was commenced to sub-
stantiate their claim before filing their motion.
Like claims of bias, claims of fraud are easily alleged.
However, because the mere making of such claims
against another carries a certain taint, they should not
be made unless there is some substance to them. The
defendants’ counsel properly waited to make the claim
of fraud until he had gathered and reviewed the evi-
dence, including Marlene’s tax returns, to make the
required threshold showing that the claim had sub-
stance. Attorneys each take an oath swearing to ‘‘not
knowingly maintain or assist in maintaining any cause
of action that is false or unlawful . . . .’’ General Stat-
utes § 1-25. Rule 3.1 of the Rules of Professional Con-
duct provides in relevant part that ‘‘[a] lawyer shall not
bring or defend a proceeding, or assert or controvert
an issue therein, unless there is a basis in law and fact
for doing so that is not frivolous . . . .’’ Maintaining
fidelity to these principles can take time. Penalizing the
defendants for taking the time to obtain evidentiary
support for their claims before moving to open the
judgment would serve no useful policy consideration
embodied in the attorneys’ oath or Rules of Profes-
sional Conduct.
Accordingly, I would reverse the court’s judgment
denying the motion to open and remand the case for
further proceedings.
1
William Owen’s affidavit, which he filed in support of his motion to open
the judgment of strict foreclosure, avers that he executed a mortgage in favor
of WMC for $215,920—the mortgage at issue in this foreclosure action—and
a second, back-to-back mortgage for $53,980. That the deal was structured
in this manner appears to be undisputed.
2
General Statutes § 49-15 provides in relevant part: ‘‘(a) (1) Any judgment
foreclosing the title to real estate by strict foreclosure may, at the discretion
of the court rendering the judgment, upon the written motion of any person
having an interest in the judgment and for cause shown, be opened and
modified, notwithstanding the limitation imposed by section 52-212a, upon
such terms as to costs as the court deems reasonable, provided no such
judgment shall be opened after the title has become absolute in any encum-
brancer . . . .’’
3
As the majority correctly notes, the defendants brought this appeal more
than twenty days after the entry of the judgment of strict foreclosure. Thus,
our review is limited to whether the trial court abused its discretion in
denying the motion to open; we cannot entertain issues relating to the merits
of the underlying judgment. See Wells Fargo Bank, N.A. v. Ruggiri, 164
Conn. App. 479, 484, 137 A.3d 878 (2016).
4
This court’s decision in Bank of America, N.A. v. Thomas, 151 Conn.
App. 790, 96 A.3d 624 (2014), is not to the contrary. In that case, the defendant
moved to open the judgment of strict foreclosure asserting that newly discov-
ered evidence showed that the plaintiff obtained the judgment through fraud.
Id., 804. Although this court began by stating that the defendant failed to
present clear proof of the fraud at the initial hearing; id., 805; it later cited
Bruno v. Bruno, 146 Conn. App. 214, 76 A.3d 725 (2013), for the proposition
that the ‘‘the defendant was not able to substantiate her allegation of fraud
beyond the realm of speculation and mere suspicion.’’ Bank of America,
N.A. v. Thomas, supra, 805. In Bruno, this court observed that ‘‘the trial
court must first determine whether there is probable cause to open the
judgment for the limited purpose of proceeding with discovery related to
the fraud claim. . . . If the moving party demonstrates to the court that
there is probable cause to believe that the judgment was obtained by fraud,
the court may permit discovery.’’ (Citations omitted.) Bruno v. Bruno,
supra, 231.
5
The term ‘‘balloon payment’’ refers to an unamortized lump sum principal
payment due at the end of the term of the loan according to the payment
schedule set forth in the promissory note.
6
The court denied the defendants’ motion to open in an order dated July
20, 2015, without issuing a written decision. The court then granted the
defendants’ motion for articulation but, rather than issuing a written deci-
sion, attached a signed copy of the transcript from the short calendar hearing.
The defendants filed a second motion for articulation, which the court
denied.
7
The law days were set to run the day after the defendants’ motion to open
was heard at the July 20, 2015 short calendar, but that was no impediment to
the court’s ability to schedule a hearing at a later date. Indeed, the court’s
denial of the defendants’ motion to open without a hearing itself triggered
an automatic stay of the running of the law days until the expiration of the
twenty day period in which to appeal from that denial. See Citigroup Global
Markets Realty Corp. v. Christiansen, 163 Conn. App. 635, 639–40, 137 A.3d
76 (2016); Brooklyn Savings Bank v. Frimberger, 29 Conn. App. 628, 630–32,
617 A.2d 462 (1992). It follows that, if the court opened the judgment for
the limited purpose of holding an evidentiary hearing on the motion, then
the court could reset the law days to accommodate that hearing.

LAVINE, J.

The defendants Marlene E. Owen and William S. Owen

1

appeal from the denial of their motion to open the judgment of strict foreclosure rendered by the trial court in favor of the plaintiff, Wells Fargo Bank, N.A. The defendants claim that the court abused its discretion in denying their motion because they showed good cause to warrant opening the judgment pursuant to General Statutes § 49-15. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the defendants' claim. On April 23, 2013, the plaintiff, as trustee for the holders of the Merrill Lynch Mortgage Investors Trust, served a complaint on the defendants, a married couple, seeking to foreclose on their property at 22-24 Bayberry Hill Road in Norwich.

2

The defendants, self-represented, entered their appearances but never filed an answer or any special defenses to the plaintiff's complaint. For more than one year, from May 14, 2013, to June 3, 2014, the parties engaged in at least six mediation sessions to resolve the case but were ultimately unsuccessful. None
of the mediator reports stated that the defendants claimed that the loan application contained inaccurate information regarding Marlene Owen's income or that the plaintiff's predecessor in interest, WMC Mortgage Corporation, misled the defendants when they applied for and executed
the mortgage.

3

Instead, the defendants sought to modify the loan because "[t]he mortgagor was laid off from his job."

On March 20, 2015, approximately nine months after the mediation period ended, the plaintiff filed a motion to default the defendants for failure to plead, which was granted on April 1, 2015. On April 1, 2015, the plaintiff filed a motion for a judgment of strict foreclosure. On April 13, 2015, counsel for the defendants entered his appearance but failed to file an answer or any special defenses to the plaintiff's complaint or to contest the entry of the default in any way. See Practice Book §§ 10-46 and 10-50. The defendants also failed to file a motion for a continuance to obtain additional time to collect evidence to support a claim of fraud. On May 18, 2015, the court heard the plaintiff's motion for a judgment of strict foreclosure, but neither the defendants nor counsel for the defendants appeared at the hearing to contest the motion or to ask for a continuance. The court granted the plaintiff's unopposed motion for a judgment of strict foreclosure and set the law days to begin July 21, 2015.

On July 8, 2015, the defendants filed a motion to open the judgment of strict foreclosure pursuant to § 49-15.

4

In the motion, they requested oral argument but specifically indicated that "testimony is not required." The court heard oral argument on the motion during a short calendar hearing on July 20, 2015.

5

The defendants asserted that they had good cause to open the judgment because they had proof that an agent of the plaintiff's predecessor in interest knowingly misled them into applying for and executing the mortgage by assuring them that they could afford the mortgage. They also claimed that the plaintiff's predecessor in interest altered the income information on the loan application without the defendants' knowledge. The evidence the defendants submitted in support of their argument included a sworn affidavit from William Owen, who attested that he had applied for and executed the mortgage "based on false representations ... by [the] [p]laintiff's predecessor's agent that [he] could afford the mortgage in question" and that Marlene Owen's "income was fraudulently put down by [the] [p]laintiff's predecessor's said agent as $5000 per month without [her] knowledge or [his], when it was in fact $2100 per month." They also provided a copy of Marlene Owen's 2004 tax returns and the loan application, which showed that the income listed in the tax returns did not match the income listed in the loan application. Thus, they argued that they
should be given an opportunity to assert the special defenses of unclean hands and fraud in the inducement in the foreclosure action.

The plaintiff argued that the defendants failed to show good cause to open the judgment of strict foreclosure. Contrary to the defendants' assertion, the plaintiff
contended that if any party was defrauded or misled, it was the plaintiff because it unknowingly relied on the loan application that contained incorrect information. It also argued that the defendants could not claim that their income was altered without their knowledge because they had an opportunity to review the loan application and correct any inaccurate information before they had signed it.

The same day, the court denied the defendants' motion to open the judgment of strict foreclosure.

6

The defendants filed a motion for articulation, and the court granted the motion and referred the parties to the transcript of the July 20, 2015 hearing. The defendants filed another motion for articulation, which the court denied. The defendants appealed to this court on August 7, 2015. Thereafter, the defendants never sought an articulation in accordance with Practice Book § 66-5.

On appeal, the defendants claim that the court abused its discretion in denying their motion to open the judgment of strict foreclosure. They argue that, pursuant to § 49-15, they showed good cause to open the judgment by providing proof that the plaintiff engaged in fraud. They contend that they did not assert their defenses prior to the court's rendering its decision on the plaintiff's motion for a judgment of strict foreclosure because they were not aware of any relevant defenses to foreclosure until after they had hired an attorney, and, thus, "[i]t would be unjust to bar their defenses under these circumstances ...." We disagree.

7

"Generally, an appeal must be filed within twenty days of the date notice of the judgment or decision is given.... In the context of an appeal from the denial of a motion to open judgment, [i]t is well established in our jurisprudence that [w]here an appeal has been taken from the denial of a motion to open, but the appeal period has run with respect to the underlying judgment, [this court] ha[s] refused to entertain issues relating to the merits of the underlying case and ha[s] limited our consideration to whether the denial of the motion to open was proper.... When a motion to open is filed more than twenty days after the judgment, the appeal from the denial of that motion can test only whether the trial court abused its discretion in failing to open the judgment and not the propriety of the merits of the underlying judgment." (Citation omitted; internal quotation marks omitted.)

Wells Fargo Bank, N.A.

v.

Ruggiri

,

164 Conn.App. 479

, 484,

137 A.3d 878

(2016).

In the present case, there is no dispute that the defendants did not file their motion to open within twenty days of the court's rendering the judgment of strict
foreclosure. Therefore, we will review the defendants' claim under an abuse of discretion standard and will not address the merits of the judgment of strict foreclosure.

"This court must make every reasonable presumption in favor of the trial court's decision when reviewing a claim of abuse of discretion.... Our review of a trial court's exercise of the legal discretion vested in it is limited to the questions of whether the trial court correctly applied the law and could reasonably have reached the conclusion that it did." (Internal quotation marks omitted.)

First Connecticut Capital, LLC

v.

Homes of Westport, LLC

,

112 Conn.App. 750

, 761,

966 A.2d 239

(2009).

"When a party seeks to open and vacate a judgment based on new evidence allegedly showing the judgment
is tainted by fraud, he must show, inter alia, that he was diligent during trial in trying to discover and expose the fraud, and that there is

clear proof of that fraud

." (Emphasis added.)

Chapman Lumber, Inc.

v.

Tager

,

288 Conn. 69

, 107,

952 A.2d 1

(2008). "Some evidence suggesting actual wrongdoing ... and not merely the specter of such, is necessary in order to set aside a final adjudication."

Bank of America, N.A.

v.

Thomas

,

151 Conn.App. 790

, 806 n.7,

96 A.3d 624

, 634 (2014).

We conclude that the court did not abuse its discretion in denying the defendants' motion to open the judgment of strict foreclosure because it reasonably could have decided that the defendants did not meet their burden of showing clear proof that the plaintiff engaged in fraud. The affidavit submitted by the defendants was made by William Owen himself, and contained only bare allegations that the plaintiff's predecessor fraudulently induced the defendants into applying for and executing the mortgage. The supporting documents gave no indication that the plaintiff altered the loan application without the defendants' knowledge or engaged in any other fraudulent activity. The tax return and the loan application listed two different incomes, but it was the responsibility of the defendants to review the loan application to ensure its accuracy before they signed it, and the court reasonably could have found that the discrepancy was not the product of fraudulent behavior. See

Ocwen Federal Bank, FSB

v.

Thacker

,

73 Conn.App. 616

, 618-19,

810 A.2d 279

(2002) (no abuse of discretion when only evidence in support of opening judgment was defendant's unsubstantiated claim in affidavit).

Additionally, "[t]he denial of such relief to a party who has suffered a default judgment by his failure to defend properly should not be held an abuse of discretion where the failure to assert a defense was the result
of the moving party's own negligence." (Internal quotation marks omitted.)

Hartford Federal Savings & Loan Assn.

v.

Stage Harbor Corp.

,

181 Conn. 141

, 143-44,

434 A.2d 341

(1980). The fact that the defendants sat on their equitable rights and waited to assert their defenses until after the court rendered the judgment of strict foreclosure further supports our conclusion that the court did not abuse its discretion. See

Countrywide Home Loans Servicing L.P.

v.

Peterson

,

171 Conn.App. 842

, 850,

158 A.3d 405

(2017) (no abuse of discretion because "the defendant waited until after the judgment of strict foreclosure had been rendered and the law days were about to run to challenge the finding of debt on the basis of the existence of private mortgage insurance");

Connecticut National Bank

v.

N.E. Owen II, Inc.

,

22 Conn.App. 468

, 475,

578 A.2d 655

(1990) (The trial court did not abuse its discretion because "[t]he defendants never asserted a defense with regard to the debt prior to the rendering of
the judgment of strict foreclosure. Therefore, any claim that they had a good defense to open that judgment and challenge the amount of the debt is equally without merit.").

The defendants attempt to justify their delay in asserting their defenses by arguing that they were unaware of any defenses available to them until they obtained counsel. "[A]lthough we allow [self-represented] litigants some latitude, the right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law." (Internal quotation marks omitted.)

Lewis

v.

Bowden

,

166 Conn.App. 400

, 403,

141 A.3d 998

(2016). The defendants' failure to assert their defenses because they were not represented by counsel is not a persuasive justification for failing to timely plead as required by court rules.

In any event, the defendants were represented by counsel on April 13, 2015, which was more than one month before the court rendered the judgment of strict
foreclosure on May 18, 2015. Not only did the defendants' counsel fail to respond to the plaintiff's complaint or assert any defenses prior to May 18, 2015, neither the defendants nor their counsel appeared at the hearing on the motion for a judgment of strict foreclosure to request a continuance in order to gather evidence to support their defenses. It is also notable that in the defendants' motion to open the judgment of strict foreclosure, the defendants' counsel only requested oral argument and specifically indicated that testimony was not required. See

USA Bank

v.

Schulz

,

143 Conn.App. 412

, 419,

70 A.3d 164

(2013) ("the defendant has no basis for claiming an abuse of discretion by the trial court in denying him relief that he could readily have sought, had he wished to, at a time when he was represented by competent counsel"). Perhaps another judge might have ordered an evidentiary hearing under the circumstances; however, we are unwilling to conclude that the failure to do so was an abuse of discretion.

The judgment is affirmed and the case is remanded for the purpose of setting new law days.

In this opinion PRESCOTT, J., concurred.

Mortgage Electronic Registration Systems, Inc., also was named as a defendant but is not a party to this appeal. We therefore refer in this opinion to the Owens as the defendants.

According to the plaintiff's complaint, the defendants, "to secure [the] note, mortgaged to Mortgage Electronic Registration Systems, Inc., as nominee for WMC Mortgage Corp., the premises known as 22 Bayberry Hill Road a/k/a 22-24 Bayberry Hill Road, Norwich," and that WMC Mortgage Corporation later assigned the mortgage to the plaintiff.

The mediator's final report stated that the reason why the issue was not resolved was because the "[d]efendants [do] not qualify for any retention options due to insufficient income. The court granted one more mediation session, which was held on [June 2, 2014]. [The] defendants recently submitted an application [for assistance] to [the Connecticut Housing Finance Authority pursuant to the Emergency Mortgage Assistance Program, General Statutes § 8-265cc et seq. ]."

General Statutes § 49-15(a)(1) provides: "Any judgment foreclosing the title to real estate by strict foreclosure may, at the discretion of the court rendering the judgment, upon the written motion of any person having an interest in the judgment

and for cause shown

, be opened and modified, nothwithstanding the limitation imposed by section 52-212a, upon such terms as to costs as the court deems reasonable, provided no such judgment shall be opened after the title has become absolute in any encumbrancer except as provided in subsection (2) of this subsection." (Emphasis added.)

Before the court heard the merits of the defendants' claim, it ordered that the motion be sealed because their counsel failed to redact the defendants' personal and identifying information.

The court initially ruled that it would extend the law days and reserve its decision on whether it was going to grant or deny the motion after reviewing the evidence. The plaintiff pointed out, however, and the court agreed, that the court was precluded from doing so because, procedurally, it was required to grant the motion before it could extend the law days. Thus, the court was forced to make a decision on the motion that day, as the law day were set to begin the following day, July 21, 2015.

"The denial of a motion to open a judgment of strict foreclosure is an appealable final judgment itself and distinctly appealable from the underlying judgment."

Connecticut National Mortgage Co.

v.

Knudsen

,

323 Conn. 684

, 687 n.8,

150 A.3d 675

(2016).

FLYNN, J., dissenting.

Those who have sat in the busy trial courts engaged in the challenging business of what Whittier once described as the "doubtful balance of rights and wrongs," know that some cases merit a second look on appeal. In my view, this case requires such a second look. In late 2005, the defendants Marlene E. Owen and William S. Owen executed two mortgages on their 22 Bayberry Hill Road property, including the mortgage that is the subject of this foreclosure action, in favor of Mortgage Electronic Registration Systems, Inc., as nominee for WMC Mortgage Corporation
WMC).

1

The subject mortgage later was assigned to the plaintiff, Wells Fargo Bank, N.A., as Trustee for the Holders of the Merrill Lynch Mortgage Investors Trust, Mortgage Loan Asset-Backed Certificates, Series 2006-WMCI, in September, 2012. After the mortgage payments proved unsustainable for the defendants, the plaintiff commenced this action and ultimately obtained a judgment of strict foreclosure on May 18, 2015. A few months later, after retaining a lawyer, the defendants
moved to open the judgment of strict foreclosure pursuant to General Statutes § 49-15

2

in an attempt to save their home. In support of their motion, the defendants submitted a sworn affidavit-along with a federal tax return and their original mortgage loan application-averring that they were fraudulently induced into executing the two mortgages; see footnote 1 of this dissenting opinion; by an agent of the plaintiff's predecessor in interest, WMC. After hearing arguments, the trial court denied the defendants' motion to open on the papers. In my view, this was a mistake. The affidavit, together with the attachments, set forth more than mere unsupported allegations of fraud. Arguably, these submissions were sufficient to warrant opening the judgment. In any event, the defendants certainly satisfied their threshold burden of presenting more than unsubstantiated speculation. Therefore, the court reasonably should have set the motion down for an evidentiary hearing. Accordingly, I would reverse the court's judgment and remand the case for further proceedings.
I acknowledge that where, as in the present case, "a party seeks to open and vacate a judgment based on new evidence allegedly showing the judgment is tainted by fraud, he must show, inter alia, that he was diligent during trial in trying to discover and expose the fraud, and that there is clear proof of that fraud."

3

(Internal quotation marks omitted.)

Chapman Lumber, Inc.

v.

Tager

,

288 Conn. 69

, 107,

952 A.2d 1

(2008). Our case law recognizes, however, that parties seeking to open a judgment on the basis of fraud need only make a threshold showing substantiating their claim beyond mere speculation or suspicion; upon making that showing, they become entitled to an evidentiary hearing to determine whether clear proof of the fraud exists. In

Tyler E. Lyman, Inc

. v.

Lodrini

,

78 Conn. App. 684

, 690,

828 A.2d 681

, cert. denied,

266 Conn. 917

,

833 A.2d 468

(2003), this court held that "[b]ecause the [trial] court's exercise of discretion in ruling on the motion to open [the judgment] was dependent on the disputed factual issue of fraud, due process required that the [trial] court hold an evidentiary hearing on that issue.... The [trial] court, therefore, abused its discretion in ruling on the matter without affording the parties the opportunity to present evidence with regard to the defendant's fraud claim." (Citation omitted.) In

Chapman Lumber, Inc

. v.

Tager

, supra, at 69,

952 A.2d 1

, our Supreme Court rejected the defendant's claim that the trial court abused its discretion by denying his motion to open without first conducting an evidentiary hearing because it was "obvious ... that the defendant had no evidence in support of his allegations [of fraud], but rather,
sought to go on a fishing expedition in the hope of discovering some."

Id., at 108

,

952 A.2d 1

.
Significantly, however, the court did not foreclose the proposition that a party could be entitled to a hearing under other circumstances, observing that "[

t

]

o be entitled to a hearing, the defendant needed to make some threshold showing that his claims had substance

, which he failed to do." (Emphasis added.)

Id.

Indeed, this court previously has approved a trial court's position that "[i]f the plaintiff was able to substantiate her allegations of fraud beyond mere suspicion, then the court would open the judgment for the limited purpose of discovery, and would later issue an ultimate decision on the motion to open after discovery had been completed and another hearing held."

Oneglia

v.

Oneglia

,

14 Conn.App. 267

, 270,

540 A.2d 713

(1988).

4

This rule entitling parties to an evidentiary hearing after making the requisite threshold showing makes good sense-requiring parties to demonstrate "clear proof" of the fraud based solely on affidavits and the paper record, without an evidentiary hearing, will in many cases be an insurmountable burden. This is because fraud claims inevitably involve "questions of
motive, intent and subjective feelings and reactions"; (internal quotation marks omitted)

Barasso

v.

Rear Still Hill Road, LLC

,

81 Conn.App. 798

, 806,

842 A.2d 1134

(2004) ; and affidavits setting forth only one party's version of the facts can sometimes be deemed inadequate to prove such issues. See

id.

Our Supreme Court has observed that the "summary judgment procedure is particularly inappropriate" for resolving questions of fraudulent intent.

Town Bank & Trust Co.

v.

Benson

,

176 Conn. 304

, 309,

407 A.2d 971

(1978). Rather, "[i]t is only when the witnesses are present and subject to cross-examination that their credibility and the weight to be given to their testimony can be appraised." (Internal quotation marks omitted.)

Barasso

v.

Rear Still Hill Road, LLC

, supra, at 806,

842 A.2d 1134

. In light of this practical reality, in-court testimony is sometimes necessary to determine whether "clear proof" of the fraud exists.

Applying these principles, even if the court concluded that the affidavit and its supporting documents were not enough, standing alone, to warrant opening the judgment, I do not believe that the court reasonably could have concluded that the defendants had not met the threshold for entitlement to a further evidentiary hearing on their motion to open. In his sworn affidavit, William attested to the following facts concerning the making of the mortgages: (1) that before executing the two mortgages, he expressed concerns about his ability to afford them, particularly because they represented 100 percent financing on the property, required greater monthly payments than he was used to,
and carried a substantial $45,457.89 balloon payment;

5

(2) that an agent of WMC convinced him to ignore such concerns by falsely claiming that similarly structured mortgages "were common and usual" and that, "based on the value
of the property," he could "certainly" refinance the mortgages to avoid the balloon payment; (3) that he would not have agreed to the mortgage loans, given their "substantial initial costs and unaffordable burdens," but for these misrepresentations; and (4) that WMC falsely listed Marlene's monthly income as $5000 in the loan application when in fact it was only $2100. The defendants also submitted copies of their loan application and Marlene's 2004 tax returns, showing that she earned just over $2100 per month that year, and that her income was listed as $5000 on the application. The plaintiff never filed a counteraffidavit rebutting any of the defendants' assertions, nor did it offer any rebuttal testimony or documentary evidence. Arguments by the plaintiff's counsel in opposition are not sworn, and are not evidence.

The defendants' submissions raised a substantial question about whether the defendants were fraudulently induced into entering the two mortgages. Indeed, this court recently has held that knowingly false statements to a borrower about the affordability of a loan can form the basis for a claim of fraud in the inducement. See

Bank of America, N.A

. v.

Aubut

,

167 Conn. App. 347

, 382-83,

143 A.3d 638

(2016). That the defendants presented documentary evidence suggesting that Marlene's income was improperly inflated-by almost 140 percent-bolsters their claim that the ultimate judgment of strict foreclosure was tainted by fraud. I also do not agree with the majority's characterization of William's affidavit as mere "allegations" of fraud. Sworn statements of fact set forth in an affidavit, concerning matters about which the affiant has personal knowledge, are not mere allegations entitled to no weight; they are actual evidence of the truth of those facts. That our judicial system accords affidavits the weight of evidence in a variety of contexts bears that out. Indeed, the plaintiff in the present case proved the
underlying mortgage debt by submitting an affidavit of debt. In the marital dissolution context, this court held that a defendant's child support guidelines worksheet was sufficiently "based on underlying evidence," including, inter alia, a financial affidavit.

McKeon

v.

Lennon

,

155 Conn.App. 423

, 444,

109 A.3d 986

(2015), rev'd in part on other grounds,

321 Conn. 323

,

138 A.3d 242

(2016). Affidavits also suffice in prejudgment remedy proceedings to establish probable cause that the moving party will prevail on the merits. See General Statutes § 52-278c(a)(2).

Additionally, the transcript of the July 20, 2015 short calendar hearing, at which the defendants' motion was heard, does not reflect that the trial court applied any of the previously discussed principles.

6

Instead, although the precise basis for the court's decision is not entirely clear, the court expressed skepticism about the merits of the defendants' fraud claim because they had an opportunity to review the
allegedly inflated income statement during the closing, and because they executed the mortgage to consolidate their credit card debt. There is no evidence in the record, however, to suggest that the defendants had an opportunity to review the loan application at the loan closing or that the proceeds from the mortgage being foreclosed satisfied their credit card debt. Indeed, William Owen explicitly disputed the proposition that the mortgage, in any manner, was related to their credit card debt. Thus, the stated basis for the court's decision only underscores the need for an evidentiary hearing if the court was not satisfied that the affidavit and attached documents established clear proof of the fraud.
In sum, this is not a case in which the defendants were "not able to substantiate [their] allegation of fraud beyond the realm of speculation and mere suspicion."

Bank of America, N.A.

v.

Thomas

,

151 Conn.App. 790

, 805,

96 A.3d 624

(2014). Accordingly, if the court deemed it needed more than the unrebutted affidavit and attachments, an evidentiary hearing at which the plaintiff and the defendants would present relevant evidence was necessary for the court to reasonably and properly exercise its discretion in ruling on the defendants' motion to open. See

Tyler E. Lyman, Inc

. v.

Lodrini

, supra,

78 Conn.App. at 690

,

828 A.2d 681

. A short calendar, like the calendar proceeding on the defendants' motion to open, is generally not the time or place to take extended witness testimony. The court nonetheless could have scheduled the case for a hearing at a later date.

7

The court's failure to do so despite the genuine and critically important issues raised by the defendants' motion to open and supporting evidence, in my judgment, was a mistake, and its denial of the defendants' motion an abuse of discretion.

Finally, I do not fault the defendants for their delay in identifying and raising their claim of fraud in the inducement until after the judgment of foreclosure was rendered. The defendants, who generally were unsophisticated in financial transactions and thus in a poor position to recognize the factual basis for a claim of
fraud, remained self-represented until April 13, 2015, by which point the plaintiff already had moved for the judgment of strict foreclosure. After the defendants obtained the benefit of counsel, it then took time for their lawyer to obtain and review the evidence and formulate their fraud claim. Indeed, the defendants obtained Marlene's 2004 tax returns from a decade before this foreclosure action was commenced to substantiate their claim before filing their motion.

Like claims of bias, claims of fraud are easily alleged. However, because the mere making of such claims against another carries a certain taint, they should not be made unless there is some substance to them. The defendants' counsel properly waited to make the claim of fraud until he had gathered and reviewed the evidence, including Marlene's tax returns, to make
the required threshold showing that the claim had substance. Attorneys each take an oath swearing to "not knowingly maintain or assist in maintaining any cause of action that is false or unlawful ...." General Statutes § 1-25. Rule 3.1 of the Rules of Professional Conduct provides in relevant part that "[a] lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous ...." Maintaining fidelity to these principles can take time. Penalizing the defendants for taking the time to obtain evidentiary support for their claims before moving to open the judgment would serve no useful policy consideration embodied in the attorneys' oath or Rules of Professional Conduct.

Accordingly, I would reverse the court's judgment denying the motion to open and remand the case for further proceedings.

William Owen's affidavit, which he filed in support of his motion to open the judgment of strict foreclosure, avers that he executed a mortgage in favor of WMC for $215,920-the mortgage at issue in this foreclosure action-and a second, back-to-back mortgage for $53,980. That the deal was structured in this manner appears to be undisputed.

General Statutes § 49-15 provides in relevant part: "(a) (1) Any judgment foreclosing the title to real estate by strict foreclosure may, at the discretion of the court rendering the judgment, upon the written motion of any person having an interest in the judgment and for cause shown, be opened and modified, notwithstanding the limitation imposed by section 52-212a, upon such terms as to costs as the court deems reasonable, provided no such judgment shall be opened after the title has become absolute in any encumbrancer ...."

As the majority correctly notes, the defendants brought this appeal more than twenty days after the entry of the judgment of strict foreclosure. Thus, our review is limited to whether the trial court abused its discretion in denying the motion to open; we cannot entertain issues relating to the

merits

of the underlying judgment. See

Wells Fargo Bank, N.A

. v.

Ruggiri

,

164 Conn.App. 479

, 484,

137 A.3d 878

(2016).

This court's decision in

Bank of America, N.A.

v.

Thomas

,

151 Conn.App. 790

,

96 A.3d 624

(2014), is not to the contrary. In that case, the defendant moved to open the judgment of strict foreclosure asserting that newly discovered evidence showed that the plaintiff obtained the judgment through fraud. Id., at 804,

96 A.3d 624

. Although this court began by stating that the defendant failed to present clear proof of the fraud at the initial hearing; id., at 805,

96 A.3d 624

; it later cited

Bruno

v.

Bruno

,

146 Conn.App. 214

,

76 A.3d 725

(2013), for the proposition that the "the defendant was not able to substantiate her allegation of fraud beyond the realm of speculation and mere suspicion."

Bank of America, N.A

. v.

Thomas

, supra, at 805,

96 A.3d 624

. In

Bruno

, this court observed that "the trial court must first determine whether there is probable cause to open the judgment for the limited purpose of proceeding with discovery related to the fraud claim.... If the moving party demonstrates to the court that there is probable cause to believe that the judgment was obtained by fraud, the court may permit discovery." (Citations omitted.)

Bruno

v.

Bruno

, supra, at 231,

76 A.3d 725

.

The term "balloon payment" refers to an unamortized lump sum principal payment due at the end of the term of the loan according to the payment schedule set forth in the promissory note.

The court denied the defendants' motion to open in an order dated July 20, 2015, without issuing a written decision. The court then granted the defendants' motion for articulation but, rather than issuing a written decision, attached a signed copy of the transcript from the short calendar hearing. The defendants filed a second motion for articulation, which the court denied.

The law days were set to run the day after the defendants' motion to open was heard at the July 20, 2015 short calendar, but that was no impediment to the court's ability to schedule a hearing at a later date. Indeed, the court's denial of the defendants' motion to open without a hearing itself triggered an automatic stay of the running of the law days until the expiration of the twenty day period in which to appeal from that denial. See

Citigroup Global Markets Realty Corp

. v.

Christiansen

,

163 Conn.App. 635

, 639-40,

137 A.3d 76

(2016) ;

Brooklyn Savings Bank

v.

Frimberger

,

29 Conn.App. 628

, 630-32,

617 A.2d 462

(1992). It follows that, if the court opened the judgment for the limited purpose of holding an evidentiary hearing on the motion, then the court could reset the law days to accommodate that hearing.