Date: 04-21-2011

Case Style: Falls Mill of Vernon Condominium Association, Inc. v. John R. Subsbury, et al.

Case Number: AC 32032

Judge: Gruendel

Court: Connecticut Court of Appeals on appeal fromt he Superior Court, Judicial District of Tolland

Plaintiff's Attorney: Franklin G. Pilicy, for the appellee (plaintiff).

Defendant's Attorney: David F. Borrino, for the appellant (defendant Beneficial Mortgage Co. of Connecticut).

Description: The defendant mortgage lender, Beneficial Mortgage Co. of Connecticut, appeals from the judgment of the trial court denying its motion to open a judgment of strict foreclosure.1 The defendant contends that the court improperly concluded that it lacked authority to open that judgment.2 We disagree and, accordingly, affirm the judgment of the trial court.

In its memorandum of decision, the court found the following undisputed facts. The plaintiff, Falls Mill of Vernon Condominium Association, Inc., commenced this action on December 7, 2007, to foreclose its statutory lien on property over which the defendant also held a mortgage. The writ of summons named the defendant as ‘‘Beneficial Mortgage Co. of Connecticut, c/o CT Corporation System, Its Agent for Service, One Corporate Center, Floor 11, Hartford, CT 06103-3220.’’

The defendant previously had appointed CT Corporation System (agent) as its registered agent in Connecticut pursuant to General Statutes § 33-922.3 See also General Statutes § 33-926. On December 7, 2007, service of process was made on the agent on behalf of the defendant, consistent with the mandate of General Statutes § 52-57 (c).4 Months later, the defendant was defaulted for failure to appear, and the plaintiff subsequently filed a motion for judgment of strict foreclosure.

On July 21, 2008, the court rendered a judgment of strict foreclosure. Notice thereof was sent to the defendant’s registered agent at that time. The law days thereafter passed and title vested in the plaintiff on September 25, 2008. A certificate of foreclosure dated September 28, 2008, which stated that title had vested in the plaintiff, was recorded on the Vernon land records on October 3, 2008.

More than one year later on October 26, 2009, the defendant filed a motion to open the judgment of strict foreclosure. In its accompanying memorandum of law, the defendant alleged that it did not receive proper notice of the plaintiff’s motion for default, the court’s ruling thereon or the judgment of strict foreclosure, rendering the judgment of the court void ab initio. After initially denying the motion and then granting reargument thereon, the court in its February 18, 2010 memorandum of decision determined that it lacked authority to open the judgment of strict foreclosure.5 From that judgment, the defendant appeals.

The issue in this appeal is whether the court properly determined that it lacked authority to open the judgment of strict foreclosure. That issue presents a question of law over which our review is plenary. See Ins. Co. of Pennsylvania v. Waterfield, 102 Conn. App. 277, 281–82, 925 A.2d 451 (2007).

As a preliminary matter, we note that at no point in the course of this litigation has the defendant maintained that it was not provided actual notice of the plaintiff’s motion for default, the court’s ruling thereon or the judgment of strict foreclosure rendered on July 21, 2008. In both its memorandum of law in support of its motion to open and its appellate brief, the defendant acknowledges that notice thereof was sent to its registered agent designated pursuant to § 33-922. The defendant further acknowledges that its May, 2007 filing with the secretary of the state, which it has appended to its appellate brief, lists a corporate address in Illinois and a ‘‘[p]rincipal [o]ffice [a]ddress in CT only’’ for its agent.

The gist of the defendant’s claim is that although its agent received the requisite notice, the defendant did not receive notice at its address in Illinois. The trial court did not resolve that issue, concluding that whether the plaintiff or the court failed to provide notice to the defendant at its Illinois address was irrelevant to the jurisdictional question before it. On the facts of this case, we agree.

Resolution of this appeal involves the intersection of General Statutes § 49-15 (a) and Practice Book § 63-1 (b). Connecticut courts generally cannot open a civil judgment ‘‘unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed.’’ General Statutes § 52-212a. That general rule does not apply to judgments of strict foreclosure.

Rather, the legislature has seen fit to distinguish motions to open such judgments by crafting a specific protocol therefor. Section § 49-15 (a) (1) provides in relevant part that ‘‘[a]ny 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 . . . .’’6 (Emphasis added.) In interpreting that statute, our Supreme Court has explained that ‘‘the legislature’s purpose in barring courts from opening a judgment, after the mortgagor’s failure to redeem, was not to limit the mortgagee from further pursuit of its newly vested property rights but rather to prohibit the mortgagor from subsequent challenges to the enforceability of the mortgagee’s property rights.’’ New Milford Savings Bank v. Jajer, 244 Conn. 251, 260, 708 A.2d 1378 (1998). In the present case, it is undisputed that title to the property in question became absolute in the plaintiff on September 25, 2008, more than one year before the defendant filed its motion to open. Thus, § 49-15 (a) plainly indicates that the defendant could not prevail on that motion.

In response, the defendant submits that, because the court did not provide notice of the judgment of strict foreclosure to it at its Illinois address, the applicable period to appeal has not run, resulting in an automatic stay of execution pursuant to Practice Book § 61-11 (a).7 The defendant is mistaken. Practice Book § 63-1 (b) specifies when an appeal period begins. It provides in relevant part: ‘‘If notice of the judgment or decision is given in open court, the appeal period shall begin on that day. If notice is given only by mail, the appeal period shall begin on the day that notice was mailed to counsel and pro se parties of record by the trial court clerk. The failure to give notice of judgment to a nonappearing party shall not affect the running of the appeal period.’’ Practice Book § 63-1 (b). That last sentence is implicated here. Assuming arguendo that the court’s notice to the defendant’s agent somehow was deficient, it has little bearing on the issue before us.

Because the defendant was a nonappearing party, under Practice Book § 63-1 (b) any failure to provide proper notice of the judgment of strict foreclosure did not affect the running of the appeal period.

Moreover, the evolution of that rule of practice evinces an intent to preclude a nonappearing defendant in a foreclosure action from advancing the argument articulated by the defendant in this appeal. As the court discussed in detail in its memorandum of decision: ‘‘The last sentence of [Practice Book § 63-1 (b)] . . . was added to the Practice Book, effective January 1, 2000.

This revision to [Practice Book] § 63-1 (b) served to clarify an ambiguity in the section that had led some clerks to take the position that the failure of a plaintiff or the clerk to send notice of judgment after default for failure to appear to a nonappearing defendant in a foreclosure action rendered the judgment ineffective.

‘‘In a memorandum, dated March 29, 1999, written by Hon. David M. Borden, former Justice of [our] Supreme Court, to Hon. Ellen A. Peters, former Senior Justice of [our] Supreme Court and Hon. Edward Y. O’Connell, former Chief Judge of [our] Appellate Court, Justice Borden set forth the rationale behind the proposed revision and stated that the Rules Committee recommended that the revision to [Practice Book] § 63-1 (b) be adopted.

‘‘Justice Borden wrote that an issue had arisen among some court clerks ‘concerning the application of Practice Book [§] 17-22 to foreclosure actions. Some court clerks [took] the position that the failure of a plaintiff to send notice of a judgment of default for failure to appear to a nonappearing defendant in a foreclosure action renders the judgment ineffective as to that defendant.

Consequently, these clerks refuse[d] to give recognition to the judgment against these nonappearing parties for all purposes for which a valid judgment is a prerequisite, such as applications for executions of ejectment and the filing of motions to open judgment to extend the law day or sale date.’ . . .

‘‘Taking into account [Practice Book] § 63-1 (b), which provides that if notice of judgment is given by mail, the appeal period commences on the date notice was mailed by the trial court clerk, Justice Borden stated that the ‘Rules Committee [interpreted] this to mean that the notice referred to in [Practice Book] [§] 63-1 does not include the notice under [Practice Book] [§] 17-22. Therefore, the failure of the plaintiff in a foreclosure action to give a defaulted defendant the [Practice Book] [§] 17-22 notice has no bearing on the triggering of the twenty day appeal period or on the effectuation of the judgment.’ Justice Borden noted that despite this reasoning, ‘some clerks [did] not believe the issue [had] been resolved, because in order for the appeal period to be triggered under [Practice Book] [§] 63-1 in [Practice Book] [§] 17-22 cases, the clerk must send notice of judgment . . . to the defaulted parties.

However, there is no trial court rule that requires the court clerk to do so.’ . . . [Practice Book §] 17-22 only requires the prevailing party to mail notice of judgment after default for failure to appear to the party against whom judgment is directed and there is no trial court rule that requires the court clerk to send such notice.

Practice Book § 7-5 only provides that the court clerk ‘give notice to the attorneys of record and pro se parties . . . of all judgments, nonsuits, defaults, decisions, orders and rulings unless made in their presence.’ . . . ‘‘Justice Borden wrote that the Rules Committee believed that the adoption of the revision to Practice Book § 63-1 (b) would ‘resolve the problem by providing that when judgment has been rendered against a nonappearing defendant, the lack of notice of judgment to such defendant will not affect the running of the appeal period in the case.’ ’’ (Citations omitted.) We agree with the court that this background further demonstrates that the plain language of Practice Book § 63-1 (b) means what it says—the failure to give notice of judgment to a nonappearing party does not affect the running of the appeal period.

In the present case, title to the property in question became absolute in the plaintiff more than one year before the defendant filed its motion to open. Accordingly, § 49-15 (a) precluded the court from granting the defendant’s motion to open the judgment of strict foreclosure.

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See: http://www.jud.ct.gov/external/supapp/Cases/AROap/AP128/128AP348.pdf

Outcome: The judgment is affirmed.

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