Wells Fargo Bank, N.A v. Ferraro

Syllabus

The plaintiff bank, W Co., sought to foreclose a mortgage on certain real property owned by the defendants F and D following their alleged default on the promissory note secured by the mortgage. Thereafter, T Co., which had been substituted as the plaintiff in the action, filed a motion for summary judgment as to liability on the ground that there was no genuine issue as to any material fact and that it was entitled to judgment as a matter of law. In response, the defendants filed an objection, asserting that a genuine issue of material fact existed as to whether W Co. had complied with the notice provisions (§ 8-265ee) of the Emergency Mortgage Assistance Program, which require a mortgagee to provide certain specific notice to the mortgagor before it can commence a foreclosure of a qualifying mortgage under the program. At the hearing on the motion for summary judgment, T Co. presented the live testimony of two witnesses and introduced five exhibits into evidence in support of its contention that the notice provisions of the program had been complied with, and both of the defendants testified that they did not receive the required notice. At the conclusion of the hearing, the trial court, on the basis of the credible testimony and the evidence, found that there had been full compliance with the notice provisions of the program. The court therefore granted T Co.'s motion for summary judg- ment as to liability on the ground that there was no genuine issue of material fact regarding the sole issue in dispute. Subsequently, the trial court granted T Co.'s motion for a judgment of strict foreclosure and rendered judgment thereon, from which the defendants appealed to this court. Held that the trial court improperly permitted and considered live testimony from witnesses during the evidentiary hearing on T Co.'s motion for summary judgment as to liability and the defendants' objec- tion to that motion; by weighing the credibility of the witnesses who testified and assessi