Opinion
No. FST CV 044000918 S
September 23, 2010
MEMORANDUM OF DECISION RE REQUEST FOR LEAVE TO AMEND COMPLAINT #42
On August 24, 2004, the plaintiff, ABN AMRO Mortgage Group, filed a foreclosure action against the defendants, Michal Hrebik aka Michel Hrebik (Mr. Hrebik), Katarina Hrebik aka Kathy Hrebik (Ms. Hrebik), Fleet National Bank (Fleet), and George Rozsa. The plaintiff filed a request for leave to amend the complaint on March 12, 2009. In response, Ms. Hrebik filed an objection on February 24, 2009, and the defendant Martello filed an objection on March 2, 2009. The plaintiff filed a reply to the defendants' objections on May 6, 2009, in response to which the defendants Martello and Rozsa filed a joint memorandum of law on December 31, 2009, in support of their objections to the plaintiffs request for leave to amend the complaint. On January 15, 2010, the plaintiff filed a memorandum in further support of its request for leave to amend the complaint, as well as an affidavit. Finally, on January 29, 2010, upon the request of the court, the plaintiff filed another memorandum in further support, and the defendants filed a memorandum in further support of their opposition. The matter was heard at short calendar on July 19, 2010.
The request for leave to amend the complaint is dated February 24, 2009.
The plaintiff filed a motion to cite in party defendants United States of America, Internal Revenue Service, and Michael Martello on February 11, 2009, which was granted by the court, Mintz, J., on March 6, 2009
Ms. Hrebik argues that the plaintiff should be denied the request to amend on several grounds. The first is laches, as in that the request has not been timely made, due to the initial filing of the complaint on August 24, 2004, and a two-year dormancy period of the action. Further, Ms. Hrebik argues that there was no mutual mistake by the parties requiring the amendment, but rather that it was the plaintiff's omission and mistake. As to unclean hands, Ms. Hrebik argues that the plaintiff's strategy merely did not work out as planned, and this is a last minute change of course. Additionally, Ms. Hrebik has not been unjustly enriched by the plaintiff's error, nor is the plaintiff entitled to equitable subrogation. Finally, Ms. Hrebik argues that allowing the reformation of the mortgage and other equitable relief will harm intervening lienors. Similarly, Martello argues that intervening lienors will be harmed by the reformation of the mortgage and other equitable relief, that the plaintiff's mortgage as recorded did not show Ms. Hrebik as a mortgagor, and that had Martello known about Ms. Hrebik's interest in the property, he would not have extended the loan to her.
The plaintiff replies that the proposed amendments will neither unduly delay trial, nor unduly prejudice the defendants' trial preparation. Further, the plaintiff argues that the defendants' merit-based attacks are irrelevant and groundless for the purpose of the proposed amendment.
Martello and Rozsa respond that the plaintiff has been extremely negligent and guilty of laches in waiting almost six years to seek an amended complaint. Further, Martello would never have loaned money to Ms. Hrebik, had he known that the plaintiff was going to make a claim against her interest in the property. Additionally, the plaintiff's unconscionable delay in seeking to make a claim against Ms. Hrebik's interest induced Rozsa to refrain from seeking enforcement of the foreclosure sale in a related proceeding. Martello and Rozsa continue to argue that there will be no injustice to the plaintiff because they have full recourse against the title insurance company, the denial of the amendment will do little or no harm to the plaintiff in any event, since the proposed claim of equitable subrogation is inapplicable here, and the only legitimate amendment proposed by the plaintiff is that for a claim of unjust enrichment as to the defendant Ms. Hrebik.
The plaintiff responds that equitable subrogation is not inapplicable in this case, and that laches does not apply, as in the course of this case there were various occurrences and proceedings that prevented the case from proceeding to a more rapid conclusion. Finally, the plaintiff argues that the defendants' argument that the plaintiff has full recourse by way of title insurance, is entirely inappropriate and equally irrelevant in the present case.
Upon the court's request, the parties submitted further memoranda in support of their respective arguments. The plaintiff argues that the court should grant the request, because the plaintiff can start a new action and consolidate it with this case, the plaintiff is not barred from commencing a second foreclosure action, there is no statute of limitations to bar a claim for foreclosure of the mortgage, and the statute of limitations do not bar the equitable claims set forth in the proposed amended complaint. The defendants argue that they did not find any law that would prevent the plaintiff from filing a new action; however, as the plaintiff was guilty of negligence and laches in failing to file the subject claims during the almost six-year pendency of this action, to the detriment of the defendants, the court should deny the request to amend the complaint.
"Our courts have pursued a liberal policy in allowing amendments . . . A trial court has wide discretion in granting or denying amendments to the pleadings and only rarely will this court overturn the decision of the trial court . . . To reverse a ruling of the trial court allowing an amendment to the pleadings requires that the defendant make a clear showing of abuse of discretion . . .
"In determining whether there has been an abuse of discretion, much depends on the circumstances of each case . . . In the final analysis, the court will allow an amendment unless it will cause an unreasonable delay, mislead the opposing party, take unfair advantage of the opposing party or confuse the issues, or if there has been negligence or laches attaching to the offering party." (Citations omitted; emphasis added; internal quotation marks omitted.) McNeil v. Riccio, 45 Conn.App. 466, 473-74, 696 A.2d 1050 (1997).
Additionally, "Connecticut courts have held that: Amendments to pleadings are governed by Practice Book § 10-60 . . . Connecticut courts have pursued a liberal policy in allowing amendments . . . While our courts have been liberal and permitting amendments . . . this liberality has limitations. Amendments should be made seasonably . . . The factors to be considered are: the length of delay; fairness to the opposing party; and the negligence if any of the parties seeking to amend." (Citations omitted; internal quotation marks omitted.) Coppa v. D.C.S.R., Inc., Superior Court, judicial district of New Haven, Docket No. CV 97 0258859 (January 27, 2000, Robinson, J.).
In the present case, the plaintiff with its amendment, seeks to add the defendant Martello as having an interest in the property, and most importantly adds three counts to the foreclosure count, sounding in unjust enrichment (count two), equitable subrogation (count three), and mutual mistake (count four). The proposed changes are significant, as entirely new causes of action are added to the complaint. Although most cases supporting prejudice against the defendants have involved closely scheduled trial dates; see Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 257-58, 905 A.2d 1165 (2006) (holding that no abuse of discretion because trial court could have concluded that granting request to amend with trial only four months away would have delayed trial and prejudiced defendants); see also Beckenstein v. Reid Riege, P.C., 113 Conn.App. 428, 967 A.2d 513 (2009) (holding that with trial scheduled three months after filing of request to amend, "court reasonably could have concluded that additional discovery would have been necessary or useful to adjudicate [the new] claim raised in the proposed amendment and that undue delay would have been caused thereby"); and there is no trial date yet scheduled in the present action, this does not take away from the discretion of the court to deny an amendment based on the demonstrated negligence and laches on the part of the plaintiff. The defendants have successfully argued, and the plaintiff has not disputed, that the added causes of action have been available to the plaintiff for six years. Although the court acknowledges that the delay was not entirely caused by the plaintiff, this does not change the fact that this time period was available to the plaintiff. The defendants in the present case did not cite in any additional parties, or raised any counterclaims or defenses, nor did they file a motion for summary judgment, prompting the plaintiff to modify its complaint.
Accordingly, the court finds that granting the requested amendment would cause undue prejudice to the defendants, and the defendants' objections are, thus, sustained.