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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 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 § 49-152

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 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 theirthreshold 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, 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 evidence 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 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’’ forresolving 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 crossexamination 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 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. 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 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.

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 encumbrancer . . . .’’

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 decision, attached a signed copy of the transcriptfrom 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.