Opinion
FSTCV096001636S
02-21-2017
Citibank, N.A., as Trustee for the Holders of Bear Stearns ALT-A Trust 2006-6, Mortgage Pass-Through Certificates, Series 2006-6 v. Laura A. Stein et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON MOTIONS OF DEFENDANT BRIAN STEIN FOR REARGUMENT AND FOR A NEW TRIAL
Donna Nelson Heller, J.
The plaintiff Citibank, N.A., as Trustee for the Holders of Bear Stearns Alt-A Trust 2006-6, Mortgage Pass-Through Certificates, Series 2006-6 (the plaintiff or Citibank), commenced this action against the defendants Laura A. Stein (Ms. Stein), Brian M. Stein, a/k/a Brian Stein (Mr. Stein), JPMorgan Chase Bank, N.A. (JPMorgan Chase), State of Connecticut, Department of Revenue Services (Department of Revenue Services), and Standard Oil of Connecticut, d/b/a Standard Security Systems (Standard Security) to foreclose a mortgage (the Stein mortgage) on real property owned by Mr. Stein and located at 983 New Norwalk Road, New Canaan, Connecticut (the New Norwalk Road property). On January 7, 2016, following a three-day trial and the parties' post-trial briefing, this court denied the motion to dismiss filed by Mr. Stein (#157.00), found in favor of Citibank, and entered a judgment of strict foreclosure (#178.00; #179.55).
Mr. Stein filed a motion for a new trial on January 19, 2016 (#181.00). He moved for reargument and reconsideration of the court's ruling on his motion to dismiss on January 27, 2016 (#182.00). Citibank objected to both motions on February 11, 2016 (#183.00; #184.00).
Counsel for Citibank and Mr. Stein were before the court on February 16, 2016 for oral argument on Mr. Stein's motions for reargument and for a new trial and Citibank's objections thereto. The court subsequently determined to open the record and take additional testimony from the plaintiff's witness at the foreclosure trial, Mr. Johnny Nguyen of Nationstar Mortgage LLC (Nationstar), the servicer of the Stein mortgage.
As ordered by the court, Mr. Nguyen testified again on August 30, 2016. The court also heard argument on the plaintiff's motion to substitute Wilmington Trust, National Association, as Successor Trustee to Citibank, N.A., as Trustee for the Holders of Bear Stearns Alt-A Trust 2006-6, Mortgage Pass-Through Certificates, Series 2006-6 (the substituted plaintiff or Wilmington Trust), as the plaintiff in this action (#188.00). The court granted the motion to substitute (#188.01).
Mr. Stein moved for reargument and reconsideration of the court's ruling granting the plaintiff's motion to substitute on September 19, 2016 (#189.00). The court heard argument from counsel on the motion to reargue on November 28, 2016. On February 1, 2017, counsel for Mr. Stein filed a memorandum in further support of his motion to reargue the decision on the motion to substitute, together with a transcript of Mr. Nguyen's August 30, 2016 testimony (#193.00; #194.00). Mr. Stein also submitted a statement and a memorandum on his own behalf in support of the motion to reargue that day (#195.00; #196.00). Wilmington Trust filed an objection to the motion to reargue on February 15, 2017 (#197.00).
Although styled as a " Supplemental Response to Objection to Motion to Reargue, " Wilmington Trust's objection was the first written objection to Mr. Stein's motion to reargue the court's ruling on the motion to substitute. Its counsel asserted an oral objection during the argument on November 28, 2016.
With all briefing, oral argument, and additional testimony thus completed, the following motions of Mr. Stein, and the objections thereto, are presently before the court: the motion for a new trial, filed January 19, 2016 (#181.00); the motion for reargument of the court's ruling on his motion to dismiss, filed January 27, 2016 (#182.00); and the motion for reargument of the court's ruling granting the plaintiff's motion to substitute, filed September 19, 2016 (#189.00).
I
The court will first address Mr. Stein's motion for reargument and reconsideration of the court's ruling denying his motion to dismiss. Mr. Stein had argued in the motion to dismiss that Citibank did not have standing to pursue this foreclosure action because it was not the owner of the note and the debt at issue and/or it was not the holder of the note, and it was not otherwise properly authorized by the owner of the note and the debt to prosecute this action on behalf of the owner. He also asserted by way of special defenses that Citibank lacked standing because it had failed to establish that it was the current holder and owner of the note and mortgage, and it did not have standing as a trustee under General Statutes § 52-106. In response, Citibank contended that it had standing to prosecute this foreclosure action as the holder of the note and as a trustee. As set forth in its January 7, 2016 memorandum of decision, this court found that Citibank had standing because it was the holder of the note, crediting the uncontroverted trial testimony of Mr. Nguyen. The court also found that Citibank had standing to prosecute this foreclosure action as a trustee. Accordingly, the court denied the motion to dismiss.
Mr. Stein sought reargument and reconsideration of the court's ruling on his motion to dismiss on the grounds of newly discovered evidence. Mr. Stein contended that, following the hearing on the motion to dismiss and the foreclosure trial, he discovered new evidence to the effect that Citibank was not the owner of the note and debt at issue and had not been for some time. According to Mr. Stein, Wilmington Trust was the owner. Mr. Stein first raised this argument in his post-trial memorandum (#168.00), filed on August 24, 2015, in which he asked the court to take judicial notice of certain public documents that purportedly demonstrated that Wilmington Trust had succeeded the plaintiff as the trustee for the Holders of Bear Stearns Alt-A Trust 2006-6, Mortgage Pass-Through Certificates, Series 2006-6 (the trust). The court declined to do so, noting that even if it took judicial notice as Mr. Stein requested, such information would not be a basis for dismissing the action. See Washington Mutual Bank, F.A. v. Walpuck, 134 Conn.App. 446, 43 A.3d 174, cert. denied, 305 Conn. 902, 43 A.3d 663 (2012). Mr. Stein also claimed that Wells Fargo Bank (Wells Fargo) was the servicer of the Stein mortgage, not Nationstar, thus calling into question the veracity of Mr. Nguyen's testimony at trial.
The court granted reargument on February 16, 2016 but reserved decision on reconsideration of its ruling denying the motion to dismiss. On May 26, 2016, the court determined to open the record to take additional testimony from Mr. Nguyen regarding whether Citibank, Wilmington Trust, or some other entity was the trustee of the trust on June 25, 2015, when Mr. Nguyen testified at the foreclosure trial; whether Nationstar, Wells Fargo, or some other entity was the mortgage servicer for the Stein mortgage when Mr. Nguyen testified; and if an entity other than Nationstar was the mortgage servicer, whether Mr. Nguyen was familiar with the books and records of such mortgage servicer at that time and was authorized to testify on its behalf (#181.01).
On August 30, 2016, Mr. Nguyen appeared for further testimony pursuant to the order of the court. The court credits the testimony of Mr. Nguyen and makes the following additional findings of fact. Nationstar has been the primary servicer of the Stein mortgage since the beginning of 2014. Nationstar was the servicer on June 25, 2015, when Mr. Nguyen testified in the foreclosure trial, and it continued to be the mortgage servicer. Citibank was the trustee of the trust and the holder of the note at the time the foreclosure complaint was filed in 2009. Citibank had the authority to commence this foreclosure action. Wilmington Trust because the trustee of the trust in 2012. Wilmington Trust was the trustee of the trust on June 25, 2015, and it remained the trustee. As of June 2015, Wilmington Trust was the holder of the note.
Two assignments of the Stein mortgage were also admitted into evidence at the August 30, 2016 hearing. The Stein mortgage was assigned by Citibank to Nationstar on May 4, 2016. The assignment of mortgage was recorded on May 19, 2016 in the Norwalk land records, in Volume 955 at Page 372. Nationstar executed an assignment of the Stein mortgage to Wilmington Trust on March 30, 2016. This assignment of mortgage was recorded on May 19, 2016 in the Norwalk land records, in Volume 955 at Page 373.
Having granted reargument of the court's ruling on the motion to dismiss, and having heard additional testimony from Mr. Nguyen, the court now turns to the second part of Mr. Stein's motion--that the court reconsider its previous decision denying the motion. Under Practice Book § 11-12(a), " [a] party who wishes to reargue a decision or order rendered by the court shall, within twenty days from the issuance of notice of the rendition of the decision or order, file a motion to reargue setting forth the decision or order which is the subject of the motion, the name of the judge who rendered it, and the specific grounds for reargument upon which the party relies." Practice Book § 11-12(a).
" [T]he purpose of a reargument is . . . to demonstrate to the court that there is some decision or some principle of law which would have a controlling effect, and which has been overlooked, or that there has been a misapprehension of facts . . . It may also be used to address alleged inconsistencies in the trial court's memorandum of decision as well as claims of law that the [movant] claimed were not addressed by the court . . . [A] motion to reargue is not to be used as an opportunity to have a second bite of the apple or to present additional cases or briefs which could have been presented at the time of the original argument." (Citations omitted; internal quotation marks omitted.) Opoku v. Grant, 63 Conn.App. 686, 692-93, 778 A.2d 981 (2001).
" Newly discovered evidence may warrant reconsideration of a court's decision. However, [f]or evidence to be newly discovered, it must be of such a nature that [it] could not have been earlier discovered by the exercise of due diligence." (Internal quotation marks omitted.) Durkin Village Plainville, LLC v. Cunningham, 97 Conn.App. 640, 656, 905 A.2d 1256 (2006). The evidence that Mr. Stein now seeks to offer falls well short of meeting this standard.
At no point--either before or after the court's January 7, 2016 memorandum of decision--did Mr. Stein seek to open the record to introduce evidence that Wilmington Trust was the successor trustee to Citibank. The court ordered further testimony from Mr. Nguyen to respond to the issues raised by Mr. Stein.
Mr. Stein represented in his post-trial memorandum that he learned through a Lexis case search and public records search that Wilmington Trust had replaced Citibank as the trustee for the trust in late 2012. He stated that he found the following public documents in that search: (i) an October 22, 2012 report from Moody's rating service on the proposed resignation of Citibank as the trustee of various Bear Stearns Alt-A Trusts, including the trust at issue in this action, to be replaced by Wilmington Trust; (ii) pleadings in other lawsuits reporting that Wilmington Trust succeeded Citibank as trustee for the other trusts listed in the Moody's report, citing as an example In re Wilson, 492 B.R. 691, 693 (Bankr.S.D.N.Y. 2013) (" Wilmington Trust succeeded Citibank as trustee in December 2012"); and (iii) Schedule A to a document described as a limited power of attorney, dated November 18, 2013 and recorded in the county records for Salt Lake City, Utah, which identified Wilmington Trust as the successor trustee to Citibank for the trust. While this evidence may be newly discovered by Mr. Stein, it has been publicly available on the Moodys.com website, in the New York federal bankruptcy court files, and/or in the Utah land records for years. A simple Lexis case search and a public records search in the months before the foreclosure trial would have revealed this information.
https://www.moodys.com/research/Moodys-determines-no-negative-rating-impact-on-35-US-RMBS--PR_257305
Accordingly, having granted reargument, the court declines to reconsider and modify its January 7, 2016 ruling denying Mr. Stein's motion to dismiss. Mr. Stein's motion for reargument and reconsideration of the court's decision on the motion to dismiss (#182.00) is denied.
II
The court will next address Mr. Stein's motion for a new trial. Mr. Stein seeks a new trial on the same grounds as set forth in his motion to reargue the court's ruling on his motion to dismiss: that since the foreclosure trial, he discovered new evidence to the effect that Wilmington Trust, not Citibank, was the owner of the note and debt at issue, and had been for some time.
Mr. Stein purports to move for a new trial pursuant to Practice Book § 16-35; however, Practice Book § 16-35 only applies to post-verdict motions, including motions for new trial, following civil jury trials, and it is not applicable here. See Jaser v. Jaser, 37 Conn.App. 194, 201, 655 A.2d 790 (1995) (" The defendant's argument in this regard must fail because § 320 [the precursor to § 16-35] motions pertain only to jury trials, not bench trials. Motions in arrest of judgment, to set aside a verdict and for a new trial all require that the trier of fact be distinct from the trial court, in that each such motion seeks to attack the verdict that the trial judge has accepted"); Berlin Steel Construction Co. v. Liberty Mutual Insurance Co., Superior Court, judicial district of Tolland, Docket No. CV-02-0078038-S, (Mar. 30, 2004, Klaczak, J.) (" The practice book refers to 'verdicts' which would indicate a jury trial and that section does not refer to a bench trial as in this case").
Mr. Stein may have intended to move for a new trial pursuant to Practice Book § 17-4A, which provides in pertinent part that " [m]otions for new trials in cases tried to the court, unless brought by petition served on the adverse party or parties, must be filed with the clerk within ten days after the day the judgment is rendered; provided that for good cause the judicial authority may extend this time . . . Such motions shall state the specific grounds upon which counsel relies." (Emphasis added.) Practice Book § 17-4A. By its terms, Practice Book § 17-4A applies to a motion for a new trial following a bench trial. It does not apply to a petition for a new trial, which is a separate action.
A petition for a new trial is governed by General Statutes § 52-270, which provides in pertinent part that " [t]he Superior Court may grant a new trial of any action that may come before it, for mispleading, the discovery of new evidence or want of actual notice of the action to any defendant or of a reasonable opportunity to appear and defend, when a just defense in whole or part existed, or the want of actual notice to any plaintiff of the entry of a nonsuit for failure to appear at trial or dismissal for failure to prosecute with reasonable diligence, or for other reasonable cause, according to the usual rules in such cases." General Statutes § 52-270(a). " The statute applies to criminal as well as civil actions." Thomas v. State, 130 Conn.App. 533, 544, 24 A.3d 12, cert. denied, 302 Conn. 945, 30 A.3d 2 (2011).
" The differences between a motion for a new trial and a petition for a new trial are matters of substance, not simply matters of form." State v. Servello, 14 Conn.App. 88, 101, 540 A.2d 378, cert. denied, 208 Conn. 811, 545 A.2d 1107 (1988). As our Supreme Court explained in Hoberman v. Lake of Isles, 138 Conn. 573, 87 A.2d 137 (1952), " a petition for a new trial is instituted by writ and complaint served upon the adverse party in the same manner as in any other new action. Although the action so started is collateral to the action in which the new trial is sought, it nevertheless is a distinct suit in itself. The judgment rendered therein is, therefore, the termination of the suit. It is the final judgment in the action . . . On the other hand, a motion for a new trial is filed in a case already pending and is merely a step in the procedure leading to the final judgment in that case." Id. at 576-77.
The distinction between a motion for a new trial pursuant to Practice Book § 17-4A and a petition for a new trial under General Statutes § 52-270 is not simply procedural when a new trial is sought on the grounds of newly discovered evidence. In State v. Jones, 205 Conn. 723, 535 A.2d 808 (1988), a criminal action, our Supreme Court declined to review a claim regarding newly discovered evidence which was not brought in a separate proceeding pursuant to Practice Book § 904, the predecessor of Practice Book § 42-55, holding that " [t]he defendant must bring a petition under § 904 [in a separate proceeding instituted by writ and complaint served on the adverse party] if he wishes to seek a new trial based on newly discovered evidence." Id. at 730.
Practice Book § 42-55 expressly provides in pertinent part that " [a] request for a new trial on the ground of newly discovered evidence shall be called a petition for a new trial and shall be brought in accordance with General Statutes § 52-270."
" A motion for a new trial based upon newly discovered evidence cannot morph into a cognizable civil petition . . . Although the court has subject matter jurisdiction, the court lacks the authority to act upon it . . . Our Appellate Court has discouraged a trial court's consideration of claimed newly discovered evidence in the absence of a proceeding initiated by a summons and complaint served upon the adverse party." State v. Hopkins, Superior Court, judicial district of Fairfield, Docket No. CR-88-033903, (July 12, 2012, Kavanewsky, J.). See State v. Bruno, 132 Conn.App. 172, 176, n.3, 30 A.3d 34 (2011), cert. denied, 303 Conn. 919, 34 A.3d 393 (2012) (filing motion for new trial under same criminal docket number as underlying case deprived court of authority to entertain it as petition for new trial under § 52-270); State v. Gonzalez, 106 Conn.App. 238, 261, 941 A.2d 989, cert. denied, 287 Conn. 903, 947 A.2d 343 (2008) (following trial court's consideration and denial of defendant's amended motion for new trial based on newly discovered evidence, Appellate Court held that trial court lacked, in first instance, authority to act); State v. Servello, supra, 14 Conn.App. at 101-02 (where defendant filed " petition for new trial" in existing criminal case, trial court should have dismissed petition for a new trial as improperly brought).
This court finds the discussion in State v. Hopkins, supra, to be instructive. While there is no Practice Book rule applicable to civil matters that mirrors Practice Book § 42-55, General Statutes § 52-270, which addresses petitions for new trials brought on several grounds, including " the discovery of new evidence, " and Practice Book § 17-4A, which applies to motions for new trials except those brought by petition, when considered together, make clear that a party seeking a new trial of a civil action on the grounds of newly discovered evidence must do so by petition in accordance with General Statutes § 52-270, rather than by motion under the Practice Book. Cf. State v. Goodwin, 3 Conn.Cir.Ct. 386, 390, 215 A.2d 913, cert. denied, 153 Conn. 725, 213 A.2d 525 (1965) (" The rules governing the granting of a new trial, whether by motion or petition, on the ground of newly discovered evidence are the same in criminal and civil cases" (internal quotation marks omitted)). Therefore, Mr. Stein should have proceeded by a petition pursuant to General Statutes § 52-270 to seek a new trial on the grounds of newly discovered evidence. The motion for a new trial that Mr. Stein filed in this action " cannot morph into a cognizable civil petition." State v. Hopkins, supra, Superior Court, Docket No. CR-88-033903.
The court lacks authority to consider Mr. Stein's motion for a new trial on the ground of newly discovered evidence because Mr. Stein should have sought a new trial by petition under General Statutes § 52-270. Even if Mr. Stein were able to overcome this procedural obstacle, he would still not prevail on his motion for a new trial because the evidence he offers as " newly discovered" has been in the public domain for several years. Accordingly, the motion for a new trial (#181.00) is dismissed.
III
The final motion before the court is Mr. Stein's motion for reargument and reconsideration of the court's ruling granting Citibank's motion to substitute Wilmington Trust as the plaintiff in this action. Citibank moved to substitute Wilmington Trust as the plaintiff because the mortgage at issue was assigned to Wilmington Trust after the commencement of this action. The court granted the motion to substitute at the hearing on August 30, 2016.
Having considered the August 30, 2016 testimony of Mr. Nguyen, the exhibits admitted into evidence at that hearing, and the arguments of counsel and Mr. Stein, the court declines to change its ruling granting the motion to substitute Wilmington Trust as the plaintiff in this action. None of the arguments that Mr. Stein has attempted to raise lead the court to believe that it overlooked any controlling law or misapprehended the relevant facts when it granted the motion to substitute. See Opoku v. Grant, supra, 63 Conn.App. at 692. Rather, it appears that Mr. Stein is seeking the proverbial second bite of the apple. Accordingly, the motion for reargument and reconsideration of the court's decision granting the motion to substitute (#189.00) is denied.
IV
In its January 7, 2016 memorandum of decision, the court entered a judgment of strict foreclosure and assigned law days to the parties in the inverse order of their priority. The court set the first law day as Tuesday, February 23, 2016--a date that has long since passed. Accordingly, the court opens the judgment of strict foreclosure previously entered for the purpose of setting new law days.
The court sets the first law day as Tuesday, March 21, 2017. Mr. Stein and Ms. Stein shall have the first law day; the Department of Revenue Services shall have the second law day; and JP Morgan Chase shall have the third law day. If there is no prior redemption of the New Norwalk Road property, title shall vest in the substituted plaintiff.
The court orders the substituted plaintiff to notify all non-appearing defendants that a judgment of strict foreclosure was ordered by this court on this date pursuant to Practice Book § 17-22 and the Superior Court Standing Orders JD-CV-104, Rev. 4-11.