BANK OF NEW YORK, TRUSTEE v. ATHINA

SAVVIDIS ET AL.

(AC 39080)

DiPentima, C. J., and Keller and Graham, Js.

Syllabus

The plaintiff bank, as trustee, sought to foreclose a mortgage on certain

real property owned by the defendant mortgagors. Following the trial

court’s rendering of a judgment of strict foreclosure, the plaintiff filed

a notice with the court that the defendants had commenced a bankruptcy

proceeding, thereby staying the judgment. Thereafter, the bankruptcy

court issued an order granting the plaintiff relief from the automatic

stay, and the plaintiff filed a motion with the trial court to reenter the

judgment and to reset the law days. In support of its motion, the plaintiff

submitted an updated calculation of debt with an attached affidavit of

debt from its servicing agent, B. The calculation of debt was less than

the calculation of debtthat the plaintiff previously had submitted approximately two years earlier, despite the accrual of interest. At the hearing

on the plaintiff’s motion, the defendants’ counsel argued that the court

should not rely on B’s affidavit in calculating the outstanding debt. The

trial court inquired of counsel as to how the defendants were harmed

by the more advantageous updated calculation of debt, and whether

counsel had any basis on which to challenge B’s affidavit. In response,

counsel stated that B’s affidavit was inconsistent with the prior affidavit

and he requested an evidentiary hearing on the matter, but indicated

that he would not offer any evidence to contradict B’s affidavit. Thereafter, the trial court declined counsel’s request for an evidentiary hearing,

reentered the judgment of strict foreclosure, reset the law days, and

calculated the outstanding debt relying on B’s affidavit. On appeal, the

defendants challenged the trial court’s reliance on B’s affidavit in calculating their outstanding debt. Held that the trial court properly relied

on B’s affidavit in calculating the outstanding debt, the defendants on

appeal having failed to articulate any colorable claim of prejudice by

the court’s decision: although the updated calculation of debt with B’s

attached affidavit was inconsistent with the one that the plaintiff previously had submitted, the updated calculation of debt was less than

the prior calculation of debt, and the defendants did not rebut the

plaintiff’s contention that there was effectively no harm to them; moreover, the trial court did not abuse its discretion in declining to conduct

an evidentiary hearing on the matter in light of the defendants’ affirmation that they would not offer any additional evidence to challenge the

figures set forth in B’s affidavit.

Argued April 25—officially released July 25, 2017

Procedural History

Action to foreclose a mortgage on certain real property owned by the named defendant et al., brought to

the Superior Court in the judicial district of StamfordNorwalk, where the defendants were defaulted for failure to plead; thereafter, the court, Adams, J., granted

the plaintiff’s motion for a judgment of strictforeclosure

and rendered a judgment of foreclosure by sale; subsequently, the court, Mintz, J., granted the motion to open

the judgment filed by the named defendant et al. and

rendered a judgment of strict foreclosure; thereafter,

the court, Povodator, J., granted the plaintiff’s motion

to reenter the judgment and to reset the law days, and

the named defendant et al. appealed to this court.

Affirmed.
Joseph DaSilva, Jr., with whom, on the brief, was

Marc J. Grenier, for the appellants (named defendant

et al.).

Jonathan A. Adamec, for the appellee (plaintiff).
Opinion

GRAHAM, J. The defendants Athina Savvidis and

Anastasios Savvidis1 appeal from the judgment of strict

foreclosure reentered by the trial court in favor of the

plaintiff, Bank of New York, as trustee,2

following the

lifting of a bankruptcy stay. On appeal, the defendants

contend that the trial court improperly relied on an

affidavit furnished by the plaintiff in calculating the

outstanding debt. We affirm the judgment of the trial

court.

This appeal concerns real property owned by the

defendants and known as 106B Comstock Hill Avenue

in Norwalk (property). On April 14, 2003, the defendants

executed a promissory note (note)in favor of America’s

Wholesale Lender3in the principal amount of $550,000.

The note was secured by a mortgage deed on the property (mortgage).

On October 3, 2006, the plaintiff commenced this

foreclosure action in its capacity as owner and holder

of the note and mortgage. The operative complaint, the

plaintiff’s January 31, 2007 amended complaint, alleged

in relevant part that the note was in default, that the

defendants had been provided written notice thereof,

and that the defendants had failed to cure that default.

Accordingly, the plaintiff sought to ‘‘declare [the] note

to be due in full and to foreclose the mortgage securing

said note.’’ Over the next decade, multiple judgments

of foreclosure were entered by the trial court, only to

be stayed by the filing of bankruptcy petitions by the

defendants under title 11, chapter 13, of the United

States Code. See U.S. Bank National Assn., Trustee v.

Works, 160 Conn. App. 49, 52, 124 A.3d 935 (filing of

bankruptcy petition pursuant to title 11 operates ‘‘as

an automatic stay of the plaintiff’s foreclosure action’’),

cert. denied, 320 Conn. 904, 127 A.3d 188 (2015).

Relevant to this appeal are the events subsequent to

the rendering of a judgment of strict foreclosure by the

court on June 8, 2015. On September 9, 2015, the plaintiff, in accordance with General Statutes § 49-15 (b),4

filed a notice that the defendants had commenced yet

another bankruptcy proceeding, thereby staying the

judgment of foreclosure recently reentered by the trial

court. On January 7, 2016, the United States Bankruptcy

Court for the District of Connecticut issued an order

granting relief from that automatic stay ‘‘to permit the

[plaintiff] to exercise [its] rights, if any, with respect

to [the property] in accordance with applicable nonbankruptcy law.’’ The plaintiff thereafter filed a motion

to reset the law days and to reenter the judgment on

the ground that the June 8, 2015 judgment of strict

foreclosure had been opened and the law days vacated

pursuant to § 49-15 (b).

In support of that motion, the plaintiff submitted an

updated calculation of debt dated March 9, 2016. That
filing stated that the total due as of February 18, 2016

was $794,608.66. Attached to that filing was an affidavit

of debt dated March 3, 2016, and signed under oath by

Tina Marie Braune, a ‘‘Document Execution Specialist

of Nationstar Mortgage LLC,’’ which was the plaintiff’s

servicing agent at that time. In her affidavit, Braune

provided a detailed breakdown of the various components of that calculation, including unpaid principal,

interest, and property tax and hazard insurance

advances.

The parties appeared before the court on March 14,

2016, at which time the court indicated that it had ‘‘a

couple of questions or problems with some of the numbers that don’t make sense’’ in comparison to the calculation of debt submitted by the plaintiff two years

earlier. The plaintiff previously had filed a calculation of

debt dated February 11, 2014 (2014 calculation), which

indicated that the total due to February 18, 2014 was

$801,528.16. That filing was accompanied by an affidavit

of debt dated November 12, 2013, and signed under oath

by Kimberly Gina Harvey, an assistant vice president at

Bank of America N.A.5 Comparing the 2014 calculation

to the one presently before it, the court observed that

‘‘[t]he total debt has actually gone down which doesn’t

make sense since you’re dealing with a substantial

increase in interest.’’ The court then noted a significant

discrepancy with respect to the property tax and hazard

insurance advances detailed in the respective affidavits,

‘‘that seems to be the source . . . of why notwithstanding increased interest over time the aggregate actually

has gone down somewhat.’’ The parties requested a

one week continuance to review the matter, which the

court granted.

The parties returned to court on March 21, 2016. The

plaintiff had filed an additional calculation of debt dated

March 18, 2016, which was identical in all material

respects to the March 9, 2016 calculation, save for the

inclusion of $2328.81 in additional interest that recently

had accrued. The defendants’ counsel indicated that

he had ‘‘no problem’’ with that additional interest but

remained ‘‘deeply concerned’’ that the 2014 calculation

was higher than the one presently before the court. In

response, the court inquired whether the defendants

had any reason or evidentiary basis for the court to

doubt the accuracy of the updated calculation of debt

furnished by the plaintiff, which the court noted was

‘‘more advantageous’’ to the defendants. The defendants’ counsel offered no such reason, apart from the

fact that the plaintiffs had introduced inconsistent affidavits. The plaintiff’s counsel confirmed thatthe Braune

‘‘numbers are correct for the affidavit of debt.’’

The defendants’ counsel nonetheless argued that the

court should not rely on Braune’s affidavit because ‘‘the

plaintiff . . . is now seeking to collect roughly half of

what it allegedly’’ paid in property tax and hazard insur-
ance advances. The court noted that it had two alternatives: accept the updated calculation of debt predicated

on Braune’s affidavit or conduct an evidentiary hearing.

The defendants’ counsel stated that he did not want an

evidentiary hearing, but an explanation for why the

numbers had decreased.

The court inquired of the defendants’ counsel how

the defendants were harmed by the present calculation

of debt, and whether he had ‘‘any basis’’ on which to

challenge Braune’s affidavit. In response, counsel

pointed only to its inconsistency with the prior affidavit.

The courtresponded that‘‘there is a presumptive quality

to what is being submitted. Absent a request for an

ability to challenge the evidentiary value and weight to

be given presumptively, I rely on unchallenged submissions such as this affidavit.’’ The defendants’ counsel

then requested an evidentiary hearing but indicated that

he would not be offering any evidence to contradict

the affidavit.

The court then ruled in relevant part: ‘‘Absent any

proffer of evidence that challenges the validity or accuracy of the most recent affidavit . . . I believe I am

entitled to and should proceed on the basis of the affidavit as submitted absent a claim that you’re going to

be offering evidence to challenge those numbers.’’ The

court issued an order reentering the judgment of strict

foreclosure, in which it reset the law days and found

the outstanding debt to be $796,922.47.6

On appeal, the defendants claim that the court

improperly relied on Braune’s March 3, 2016 affidavit

in calculating the debt. In response, the plaintiff argues

that, irrespective of the merits of that claim, the defendants cannot demonstrate that they were substantially

prejudiced by the court’s evidentiary ruling. We agree

with the plaintiff.

The standard governing such claims is well established. ‘‘Our standard of review regarding challenges to

a trial court’s evidentiary rulings is that these rulings

will be overturned on appeal only where there was an

abuse of discretion and a showing by the defendant of

substantial prejudice or injustice. . . . Additionally, it

is well settled that even if the evidence was improperly

admitted, the [defendant] must also establish that the

ruling was harmful and likely to affect the result of

the trial.’’ (Internal quotation marks omitted.) National

City Mortgage Co. v. Stoecker, 92 Conn. App. 787, 797,

888 A.2d 95, cert. denied, 277 Conn. 925, 895 A.2d

799 (2006).

The record reflects that the trial court rendered a

judgment of strict foreclosure on June 8, 2015. At that

time, the court, without objection by the defendants,

determined the outstanding debt to be $801,498.16. Ultimately, the defendants’ filing of a bankruptcy petition

precluded that foreclosure from proceeding.
Following the January 7, 2016 order ofthe bankruptcy

court granting the plaintiff relief to exercise its right to

foreclose on the property, the plaintiff moved for a

reentry of the judgment of strict foreclosure, which

necessitated a resetting of the law days and a recalculation of the debt. Although more than nine months had

passed, during which additional interest had accrued,

the plaintiff nonetheless submitted an updated calculation of debt and an accompanying affidavit that set

forth a total due that was thousands of dollars less than

the debt previously set by the court. When pressed by

the court as to how that reduction in the amount owed

to the plaintiff prejudiced the defendants, the defendants’ counsel provided no answer. Furthermore,

although the court considered conducting an evidentiary hearing on the matter, it declined to do so in light

of the defendants’ affirmation that they would not be

offering any additional evidence to challenge the figures

set forth in Braune’s affidavit.

On appeal, the defendants have articulated no colorable claim of prejudice. Although the plaintiff argued

in its appellate brief that ‘‘[t]here was effectively no

harm to the defendants by the trial court’s decision,’’

the defendants did not rebut that contention. On our

review of the record, we can discern no substantial

prejudice to the defendants. Moreover, we are mindful

that ‘‘[a] foreclosure action is an equitable proceeding

. . . [and the] determination of what equity requires is

a matter for the discretion of the trial court.’’ (Internal

quotation marks omitted.) Deutsche Bank National

Trust Co. v. Angle, 284 Conn. 322, 326, 933 A.2d 1143

(2007). We conclude that the defendants have not demonstrated that the trial court abused its discretion in

the present case.

The judgment is affirmed and the case is remanded

for the purpose of setting new law days.

In this opinion the other judges concurred.

1 Although Sophia Savvidis, Progressive Credit Union, and Norwalk Hospital also were named as defendants in the plaintiff’s complaint, none of those

defendants have appealed from the judgment of the trial court. We, therefore,

refer to Athina Savvidis and Anastasios Savvidis as the defendants in this

opinion.

2 The plaintiff is the trustee of the Certificate Holders of CHL Mortgage

Pass-Through Trust 2003-15.

3 America’s Wholesaler Lender is the trade name of Countrywide Home

Loans, Inc. America’s Wholesale Lender v. Pagano, 87 Conn. App. 474, 475,

866 A.2d 698 (2005).

4 General Statutes § 49-15 (b) provides in relevant part: ‘‘Upon the filing

of a bankruptcy petition by a mortgagor under Title 11 . . . any judgment

against the mortgagor foreclosing the title to real estate by strict foreclosure

shall be opened automatically without action by any party or the court,

provided, the provisions of such judgment, other than the establishment of

law days, shall not be set aside under this subsection, provided no such

judgment shall be opened after the title has become absolute in any encumbrancer or the mortgagee, or any person claiming under such encumbrancer

or mortgagee. The mortgagor shall file a copy of the bankruptcy petition,

or an affidavit setting forth the date the bankruptcy petition was filed, with

the clerk of the court in which the foreclosure matter is pending. . . .’’

5

In her affidavit, Harvey indicated that Bank of America N.A. was ‘‘the
plaintiff’s servicing agent for the subject loan . . . .’’

6 That figure is $4575.69 less than the debt set by the court nine

months earlier.