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Foreclosure Law

Foreclosure Law Appellate Court Opinions

   by Agati, Taryn

 https://jud.ct.gov/lawlib/LawLibNews/Posts/Post.aspx?Id=4333

AC43719 - Bank of New York Mellon v. Madison ("In this foreclosure action, the defendants Russell M. Madison and Margit Madison appeal from the judgment of the trial court rendered in favor of the plaintiff, The Bank of New York Mellon, Trustee, on its amended two count complaint asserting claims for foreclosure and reformation of the mortgage. On appeal, the defendants claim that the court improperly granted (1) the plaintiff's oral motion for judgment on its reformation claim when the plaintiff failed to produce any evidence in support thereof and (2) the plaintiff's motion for summary judgment as to liability only on its foreclosure claim when the plaintiff failed to establish that the default notice that it had mailed to the defendants complied with the notice requirements of the mortgage. We reverse in part the judgment of the trial court.")

AC43568 - U.S. Bank, National Assn. v. Moncho ("The defendants Lee Moncho and Karen Moncho appeal from the judgment of strict foreclosure rendered by the trial court in favor of the plaintiff, U.S. Bank, National Association, Trustee, as successor in interest to Wachovia Bank, N.A., as Trustee for JPMorgan 2005-A7. On appeal, the defendants claim that the court erred by (1) refusing to deem all of the defendants' special defenses as admitted when the plaintiff failed to reply to them prior to trial, (2) concluding that the plaintiff had standing and was entitled to enforce the note, (3) rejecting the defendants' five special defenses, and (4) improperly admitting evidence concerning the payment history of the note as a business record. We affirm the judgment of the trial court.")


Foreclosure Law Appellate Court Opinion

   by Agati, Taryn

 https://jud.ct.gov/lawlib/LawLibNews/Posts/Post.aspx?Id=4308

AC40959 - Bank of New York Mellon v. Tope ("The defendant Achyut M. Tope appeals from the denial of his motion to open and vacate the judgment of foreclosure by sale rendered by the trial court in favor of the plaintiff, The Bank of New York Mellon, formerly known as The Bank of New York, as Successor to JPMorgan Chase Bank, N.A., as Trustee for Structured Asset Mortgage Investments II, Inc., Bear Stearns Alt-A Trust, Mortgage Pass-Through Certificates, Series 2004-3. The defendant claims that the trial court erred in denying his motion to open and vacate because the plaintiff lacked standing to commence this action and, consequently, the trial court lacked subject matter jurisdiction over it. The plaintiff contends that it had standing to commence this action and that this appeal constitutes an impermissible collateral attack on the court's foreclosure judgment, which initially was entered in 2014 and from which the defendant did not appeal. We agree with the plaintiff that the defendant's appeal from the motion to open and vacate constitutes an impermissible collateral attack on the foreclosure judgment, and, accordingly, affirm the trial court's denial of the defendant's motion to open and vacate.")


Foreclosure Appellate Court Opinion

   by Townsend, Karen

 https://jud.ct.gov/lawlib/LawLibNews/Posts/Post.aspx?Id=4298

AC41720 - OneWest Bank, N.A. v. Ceslik ("On appeal, the defendant claims that the court erred by (1) rejecting his defense of laches when it granted the motion of OneWest Bank, N.A. (OneWest), for summary judgment as to liability, (2) rejecting his postjudgment claim that the plaintiff lacked standing, (3) crediting obviously fraudulent and defective assignments of the mortgage, (4) denying his motion to dismiss the present action on the ground that OneWest initiated a prior identical foreclosure action against the defendant that it subsequently withdrew, and (5) denying him due process in connection with his motion for judgment. We affirm the judgment of the trial court.")


Foreclosure Law Appellate Court Opinion

   by Agati, Taryn

 https://jud.ct.gov/lawlib/LawLibNews/Posts/Post.aspx?Id=4253

AC42176 - Newtown v. Ostrosky ("This is an appeal from a denial of a motion to reargue and for reconsideration filed by the defendant Scott E. Ostrosky from the judgment of foreclosure by sale rendered by the trial court in favor of the plaintiff, the town of Newtown. On appeal, the defendant claims that the judgment should be opened and vacated because (1) the default that was entered by the court clerk was invalid and cannot serve as the basis for the foreclosure judgment and (2) the motion for a judgment of foreclosure was filed prematurely by the plaintiff. We affirm the judgment of the trial court.")


Foreclosure Law Appellate Court Opinion

   by Agati, Taryn

 https://jud.ct.gov/lawlib/LawLibNews/Posts/Post.aspx?Id=4193

AC42389 - Wahba v. JPMorgan Chase Bank, N.A. (Connecticut Unfair Trade Practices Act (CUTPA) (§ 42-110a et seq.); foreclosure; whether plaintiff failed to adequately brief claim regarding foreclosure judgment; "The plaintiff, Susanne P. Wahba, appeals from the judgment of the trial court rendered in favor of the defendant, JPMorgan Chase Bank, N.A., after a jury trial on the plaintiff's complaint and a court trial on the defendant's counterclaim. On appeal, the plaintiff claims that the court improperly (1) granted the defendant’s March 15, 2017 motion in limine precluding evidence regarding a 2008 modification agreement (March 15 motion in limine), (2) granted the defendant’s March 16, 2017 motion in limine precluding evidence regarding government regulatory action taken against the defendant (March 16 motion in limine), and (3) denied the plaintiff’s request to amend her complaint.We dismiss the plaintiff’s first claim as moot because the plaintiff has not challenged both of the trial court’s bases for its evidentiary ruling.With regard to the plaintiff’s remaining claims, we affirm the judgment of the trial court.")


Foreclosure Law Appellate Court Opinion

   by Roy, Christopher

 https://jud.ct.gov/lawlib/LawLibNews/Posts/Post.aspx?Id=4170

AC41229 - Deutsche Bank National Trust Co. v. Pototschnig ("The defendant Hubert Pototschnig appeals from the judgment of foreclosure rendered by the trial court in favor of the plaintiff, Deutsche Bank National Trust Company, as Trustee, for HSI Asset Securitization Corporation 2005-NC2 Mortgage Pass-Through Certificates, Series 2005-NC2 (HSI).On appeal, the defendant claims that the court (1) improperly determined that the plaintiff had standing to bring the foreclosure action, (2) failed to follow the decision of an out of state court, (3) failed to consider whether the securitized trust, HSI, ever received the note and mortgage, and (4) abused its discretion in several of its evidentiary rulings. We affirm the judgment of the trial court.")


Foreclosure Law Supreme Court Opinion

   by Agati, Taryn

 https://jud.ct.gov/lawlib/LawLibNews/Posts/Post.aspx?Id=4153

SC20322 - Redding v. Georgetown Land Development Co., LLC (Foreclosure of municipal tax liens; "This appeal requires us to determine the priority of tax liens levied on real property by the Georgetown Special Taxing District (taxing district) pursuant to No. 07-196, § 4 (b) (3), of the 2007 Public Acts (P.A. 07-196) relative to tax liens held by other municipal entities on that same property. The plaintiffs, the town of Redding (town), the Redding Water Pollution Control Commission (commission), and Georgetown Fire District (fire district), brought this action to foreclose municipal liens against the defendant RJ Tax Lien Investments, LLC, an assignee of real estate tax liens originally levied by the taxing district. The town and the fire district filed motions for partial summary judgment with respect to priority, asserting that, under P.A. 07-196, § 4 (b) (3), their tax liens had priority over the liens that the defendant had acquired from the taxing district. The trial court agreed, granted their motions for partial summary judgment, and subsequently rendered a judgment of strict foreclosure in favor of the town and the fire district. The defendant appeals from the judgment of strict foreclosure, claiming that the trial court incorrectly concluded that its liens were subordinate to those of the town and the fire district. Although we agree with the trial court that the liens acquired by the defendant from the taxing district are subordinate to those of the town, we agree with the defendant that the trial court incorrectly concluded that they are subordinate to those of the fire district. Accordingly, we reverse the judgment insofar as the trial court granted the fire district's motion for partial summary judgment with respect to priority, and we remand the case with direction to vacate that portion of the judgment subordinating the liens acquired by the defendant to the fire district's liens, to render judgment consistent with this opinion, and for the setting of new law days.")


Foreclosure Law Appellate Court Opinion

   by Agati, Taryn

 https://jud.ct.gov/lawlib/LawLibNews/Posts/Post.aspx?Id=4149

AC42599 - HSBC Bank USA, National Assn. v. Gilbert (Foreclosure; whether trial court erred in granting motion for summary judgment as to liability; claim that genuine issue of material fact existed as to whether defendants received proper notice of default and acceleration of note; "The defendants Howard I. Gilbert and Mary S. Gilbert appeal from the judgment of foreclosure by sale rendered by the trial court in favor of the plaintiff, HSBC Bank USA, National Association, as Trustee for Fremont Home Loan Trust 2005-E, Mortgage-Backed Certificates, Series 2005-E. On appeal, the defendants claim that the court erred in granting the plaintiff's motion for summary judgment as to liability only (1) because the plaintiff failed to establish that there was no genuine issue of material fact as to whether it sent proper notice of default and acceleration to the defendants, (2) because the plaintiff's affidavits submitted to the court in support of the motion failed to satisfy the requirements of Practice Book § 17-46, and (3) despite the fact that the plaintiff's affiants failed to establish that they had personal knowledge of the facts that were the subject of the affidavits, and that the court erred in rendering judgment of foreclosure by sale because the plaintiff's affidavit of debt was insufficient to demonstrate the amount of debt due on the subject note. We disagree and, thus, affirm the judgment of the trial court.")


Foreclosure Law Appellate Court Opinion

   by Booth, George

 https://jud.ct.gov/lawlib/LawLibNews/Posts/Post.aspx?Id=4124

AC41607 - Castle v. DiMugno (Action to recover on promissory note; foreclosure; standing; subject matter jurisdiction; "This appeal arises out of the plaintiff's action to collect on a promissory note (note) executed by the defendant, Katherine DiMugno, and to foreclose on the mortgage securing the defendant's obligations under the note. The plaintiff, AnnMarie Castle, as trustee for the Mary DiMugno Irrevocable Trust (trust), appeals from the judgment of the trial court rendered in favor of the defendant following its granting of the defendant's motion for summary judgment on the plaintiff's complaint. The plaintiff claims that the court (1) misinterpreted the defendant's payment obligations under the note, (2) improperly considered parol evidence regarding the meaning of certain language in the note, and (3) incorrectly concluded that there are no genuine issues of material fact regarding the defendant's alleged default under the note. In response, in addition to defending the analysis of the trial court, the defendant reasserts her claim that the plaintiff lacks standing to enforce the note and to foreclose on the corresponding mortgage, and that the court, therefore, should have dismissed the action. We agree with the defendant that the plaintiff lacks standing, and, therefore, we reverse the judgment of the trial court and remand the case to the trial court with direction to render a judgment of dismissal.")


Foreclosure Law Supreme Court Opinion

   by Booth, George

 https://jud.ct.gov/lawlib/LawLibNews/Posts/Post.aspx?Id=4118

SC20090 - JPMorgan Chase Bank, National Assn. v. Essaghof (Foreclosure; "In this certified appeal, we must decide whether a trial court may order a mortgagor to reimburse a mortgagee for the mortgagee's ongoing advancements of property taxes and insurance premiums during the pendency of an appeal from a judgment of strict foreclosure. The defendants Roger Essaghof and Katherine Marr-Essaghof appeal from the judgment of the Appellate Court affirming the trial court's order requiring that the defendants reimburse the plaintiff, JPMorgan Chase Bank, National Association, for property tax and insurance premium payments advanced by the plaintiff during the pendency of this appeal. The defendants' principal claim is that the Appellate Court incorrectly concluded that the trial court's order was a valid exercise of its equitable authority. We conclude that the trial court abused its discretion because the relief it ordered is inconsistent with the remedial scheme available to a mortgagee in a strict foreclosure. Accordingly, we reverse the judgment of the Appellate Court insofar as it affirmed the trial court's order directing the defendants to reimburse the plaintiff for property taxes and insurance premiums. We affirm the Appellate Court's judgment in all other respects.")


Foreclosure Law Appellate Court Opinion

   by Booth, George

 https://jud.ct.gov/lawlib/LawLibNews/Posts/Post.aspx?Id=4089

AC42709 - Chelsea Groton Bank v. Belltown Sports, LLC (Foreclosure; "The defendants Belltown Sports, LLC (Belltown Sports), Sports on 66, LLC (Sports on 66), and Brian Cutler appeal from the judgment of foreclosure by sale rendered by the trial court in favor of the plaintiff, Chelsea Groton Bank. On appeal, the defendants claim that the court improperly (1) rendered summary judgment as to liability in favor of the plaintiff and (2) concluded that the priority of a Small Business Administration (SBA) loan does not bar the plaintiff’s right to foreclose on its mortgage. We disagree and affirm the judgment of the trial court.")


Foreclosure Law Appellate Court Opinion

   by Booth, George

 https://jud.ct.gov/lawlib/LawLibNews/Posts/Post.aspx?Id=4064

AC42573 - Bank of New York Mellon v. Francois (Foreclosure; vacated judgment; appellate stay; "In this residential mortgage foreclosure action, the amended appeal of the defendant, Beagy Francois, challenges the judgment of strict foreclosure rendered by the court in favor of the plaintiff, The Bank of New York Mellon FKA The Bank of New York as Trustee for the Certificate Holder of Cwalt, Inc., Alternative Loan Trust 2007-J1, Mortgage Pass-Through Certificates, Series 2007-J1. The defendant's sole claim in her amended appeal is that the court improperly vacated the prior judgment of foreclosure and subsequently rendered a second judgment of foreclosure in violation of an existing appellate stay of execution. We disagree and, accordingly, affirm the judgment of the trial court.")


Foreclosure Law Appellate Court Opinion

   by Booth, George

 https://jud.ct.gov/lawlib/LawLibNews/Posts/Post.aspx?Id=4056

AC42560 - Bank of New York Mellon v. Mangiafico (Foreclosure; whether foreclosure action was barred by limitation period set forth in statute (§ 42a-3-118); "The defendant Sebastian Mangiafico appeals from the judgment of strict foreclosure rendered in favor of the plaintiff, The Bank of New York Mellon, formerly known as The Bank of New York, as Trustee (CWALT 2007-14T2). On appeal, the defendant claims that the trial court erred in granting the plaintiff's motion for summary judgment as to liability only because (1) the action is time barred by the statute of limitations set forth in General Statutes § 42a-3-118, and (2) the court failed to consider the defendant's fifth special defense, namely, that the plaintiff engaged in inequitable conduct. We affirm the judgment of the trial court.")


Foreclosure Law Appellate Court Opinion

   by Booth, George

 https://jud.ct.gov/lawlib/LawLibNews/Posts/Post.aspx?Id=4027

AC39426 - Wells Fargo Bank, N.A. v. Melahn (Foreclosure; whether appeal from trial court's striking of special defenses was taken from final judgment; "This foreclosure case returns to this court on remand from our Supreme Court. See Wells Fargo Bank, N.A. v. Melahn, 333 Conn. 923, 218 A.3d 67 (2019). The defendant Michael John Melahn appeals from the judgment of the trial court rendered in favor of the plaintiff, Wells Fargo Bank, N.A., as trustee, on the defendant's stricken second amended counterclaim and the court's striking of the defendant's second amended special defenses. In Wells Fargo Bank, N.A. v. Melahn, 181 Conn. App. 607, 614, 186 A.3d 1215 (2018), rev'd, 333 Conn. 923, 218 A.3d 67 (2019), this court dismissed, for lack of a final judgment, the portion of the defendant's appeal taken from the striking of his second amended special defenses and affirmed the judgment in all other respects. Thereafter, the defendant petitioned our Supreme Court for certification to appeal. Our Supreme Court granted the defendant's petition, vacated this court's judgment, and remanded the case to this court with direction to reconsider its judgment in light of our Supreme Court's decision in U.S. Bank National Assn. v. Blowers, 332 Conn. 656, 212 A.3d 226 (2019). Wells Fargo Bank, N.A. v. Melahn, supra, 333 Conn. 923. On remand, we conclude that Blowers does not require a different disposition of the appeal. Accordingly, we dismiss, for lack of a final judgment, the appeal as to the striking of the defendant's second amended special defenses, and we affirm the judgment in all other respects.")


Foreclosure Law Appellate Court Opinion

   by Booth, George

 https://jud.ct.gov/lawlib/LawLibNews/Posts/Post.aspx?Id=4017

AC42037 - USAA Federal Savings Bank v. Gianetti (Foreclosure; motion for summary judgment; motion to strike counterclaim; motion to open judgment; "In his appeal, Gianetti, who is self-represented, makes four separate claims of error: (1) the trial court abused its discretion in denying his motion to open the judgment of strict foreclosure; (2) the trial court erred in granting the plaintiff's motion to strike his counterclaim; (3) the trial court erred in divers ways in adjudicating the plaintiff's motion for summary judgment as to liability only; and (4) the trial court violated his right not to be deprived of his property without due process of law by the manner in which it adjudicated his motion to open the judgment of strict foreclosure, having allegedly been put under pressure to resolve the matter quickly, before all necessary discovery on the motion could be conducted. For the following reasons, we conclude that none of these claims furnishes a ground for granting the relief that Gianetti seeks in this appeal.")


Foreclosure Law Supreme Court Opinion

   by Booth, George

 https://jud.ct.gov/lawlib/LawLibNews/Posts/Post.aspx?Id=3990

SC20182 - Saunders v. KDFBS, LLC (Foreclosure; final judgment; declaratory judgment; "The issue in this foreclosure action is whether a determination of the priority of mortgages can be challenged in an appeal from the judgment of foreclosure by sale, before the foreclosure sale has taken place, when the priority of the foreclosing plaintiff's mortgage is in dispute. The trial court rendered judgment in favor of the plaintiff, Roger Saunders, Trustee of Roger Saunders Money Purchase Plan, on his two count complaint seeking a judgment of foreclosure on certain real property and a declaratory judgment that his mortgage had priority over a purported mortgage on the property held by the defendants Karen Davis and Daniel Davis. The Appellate Court summarily dismissed the Davis defendants' appeal challenging the priority of the plaintiff's mortgage over their mortgage for want of a final judgment. We distinguish the present case from one in which there is a dispute among junior encumbrancers and reverse the Appellate Court's order summarily dismissing the appeal.")


Foreclosure Law Appellate Court Opinions

   by Booth, George

 https://jud.ct.gov/lawlib/LawLibNews/Posts/Post.aspx?Id=3968

AC41566 - Merritt Medical Center Owners Corp. v. Gianetti (Foreclosure of statutory (§ 47-258 (m)) liens against medical office units for unpaid common charges; "In this joint appeal, the defendant Charles D. Gianetti appeals from two judgments of foreclosure by sale, each rendered in favor of the plaintiff, Merritt Medical Center Owners Corp., Inc., as to the defendant's two medical office units, which are located in a common interest community organized under the Common Interest Ownership Act (act), General Statutes § 47-200 et seq. The defendant claims in relevant part that the trial court improperly granted the plaintiff's motions for summary judgment as to liability after it erroneously concluded that the plaintiff was in compliance with the mandates of General Statutes § 47-258 (m) when it commenced these actions. We agree and, accordingly, reverse the judgments of the trial court.")

AC41541 - American Tax Funding, LLC v. Gore (Foreclosure of municipal tax liens; "In this municipal tax foreclosure case, the defendant William T. Gore, Jr., appeals from the judgment of the trial court denying his motion to open the judgment of strict foreclosure rendered in favor of the substitute plaintiff, ATFH Real Property, LLC. On appeal, the defendant claims that the court abused its discretion in denying his motion to open the judgment because he had equity in the home and, therefore, the judgment of strict foreclosure had been improper when it was rendered. We affirm the judgment of the trial court.")

AC42010 - World Business Lenders, LLC v. 526-528 North Main Street, LLC (Foreclosure; "The defendant Elissa E. Speer appeals from the judgment of strict foreclosure rendered by the trial court in favor of the substitute plaintiff, WBL SPE II, LLC (substitute plaintiff). On appeal, Speer claims that the court improperly rendered the judgment of strict foreclosure because (1) the note and mortgage charged more than 120 percent interest and were unconscionable, (2) the amended complaint did not describe the property being foreclosed, and (3) the substitute plaintiff lacked standing as of the date of the amended complaint. For the reasons that follow, we dismiss the appeal.")


Foreclosure Law Appellate Court Opinion

   by Booth, George

 https://jud.ct.gov/lawlib/LawLibNews/Posts/Post.aspx?Id=3956

AC41723 - JPMorgan Chase Bank, National Assn. v. Syed (Foreclosure; motion for summary judgment; judgment of strict foreclosure; "In this foreclosure action, the defendant Sonia Syed appeals from the judgment of strict foreclosure rendered by the trial court in favor of the second substitute plaintiff, Wilmington Savings Fund Society, FSB, doing business as Christiana Trust, as Trustee for Normandy Mortgage Loan Trust, Series 2017-1 (Wilmington). On appeal, the defendant claims that the trial court erroneously (1) granted the motion filed by the first substitute plaintiff, Christiana Trust, A Division of Wilmington Savings Fund Society, FSB as Trustee for Normandy Mortgage Loan Trust Series 2013-18 (Christiana Trust), for summary judgment as to liability, despite questions concerning whether the original plaintiff, JPMorgan Chase Bank, National Association (JPMorgan), was the holder of the note at the time it commenced this foreclosure action, (2) rejected the defendant's first and third special defenses when granting summary judgment as to liability, and (3) struck the defendant's fourth count of her amended counterclaim when it granted summary judgment as to liability. We affirm the judgment of the trial court.")


Foreclosure Law Appellate Court Opinion

   by Booth, George

 https://jud.ct.gov/lawlib/LawLibNews/Posts/Post.aspx?Id=3944

AC42415 - U.S. Bank, National Assn. v. Mamudi (Foreclosure; "In this appeal, which stems from a fourteen year old foreclosure action, the defendants Wellsville Properties, LLC (Wellsville), and John C. Pastor (Pastor) appeal from the judgment of the trial court denying, as untimely, their motions to reargue the court's decisions granting two motions for orders filed by the plaintiff, U.S. Bank, National Association, as Trustee for RASC 2005-AHL1. On appeal, the defendants claim that (1) the court abused its discretion in denying their motions to reargue as untimely where, as here, those motions asserted mistakes of law in the court's rulings on the plaintiff's motions for orders, (2) the court erred in ruling that the law days were not "automatically vacated" pursuant to General Statutes § 49-15 (b) as a result of a bankruptcy petition filed by Wellsville on February 20, 2018, (3) the court improperly determined that the bankruptcy stay was eliminated by 11 U.S.C. § 362 (c) (4) (A) (i) (2012), and (4) even if § 49-15 (b) does not apply, pursuant to federal law, 11 U.S.C § 108 (b) (2012), Wellsville's bankruptcy petition extended the law days by up to sixty days to April 17, 2018, a date well past the February 20, 2018 date set forth in the foreclosure judgment. This action resulted in harm to the defendants in that they lost the right to move to open the judgment and to further extend the law days when the court ruled on the motions for orders on March 12, 2018, before the commencement of the extended law days on April 17, 2018. We conclude that there is no practical relief available to the defendants and, therefore, that the court should have dismissed as moot, rather than denied, their motions to reargue.")


Foreclosure Law Appellate Court Opinions

   by Booth, George

 https://jud.ct.gov/lawlib/LawLibNews/Posts/Post.aspx?Id=3932

AC42184 - RCN Capital, LLC v. Sunford Properties & Development, LLC (Foreclosure; personal guarantee; deficiency judgment; claim that trial count improperly rendered judgment for plaintiff on count of complaint seeking to recover on personal guarantee; "In this action to foreclosure two mortgages and to collect on a personal guarantee, the defendants Sunford Properties & Development, LLC (Sunford) and Janny Lam appeal from the judgment of the trial court, rendered in favor of the plaintiff, RCN Capital, LLC. The defendants claim that the trial court improperly (1) allowed the plaintiff to pursue a claim for monetary damages against Lam that was more than the amount to which the parties had stipulated to be the amount of the deficiency and (2) rendered judgment against all defendants, holding them jointly and severally liable on Lam's guarantee. We affirm the judgment of the trial court.")

AC41472 - Hudson City Savings Bank v. Hellman (Foreclosure; summary judgment; claim that trial court abused its discretion when it granted motion to substitute plaintiff; whether substitution of plaintiff had substantive effect or prejudiced defendants; "The defendants Charles D. Hellman and Holly H. Hellman appeal from the judgment of foreclosure by sale rendered by the trial court in favor of the substitute plaintiff, Manufacturers and Traders Trust Company (M&T). On appeal, the defendants claim that the court improperly (1) granted the motion to substitute M&T for Hudson City Savings Bank (HCSB) as the plaintiff in the action, and (2) rendered summary judgment as to liability in favor of HCSB. We agree with the defendants' second claim and reverse the judgment of the trial court.")


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