Date: 07-23-2012

Case Style: Selene Finance, L.P. v. John Tornatore

Case Number: AC 32780

Judge: Per Curiam

Court: Appellate Court of Connecticut on appeal fromt he Superior Court, Hartford County

Plaintiff's Attorney: Andrew P. Barsom, Hartford, Connecticut, for the appellee (plaintiff).

Defendant's Attorney: Kimberly A. Cuneo, with whom, on the brief, was J. William Gagne, Jr., J. William Gagne Jr. & Associates, P.C., West Hartford, Connecticut, for the appellant (named defendant).

Description: The mortgagor defendant, John Tornatore, 1 appeals from the judgment of the trial court denying his motion to open the default judgment of strict foreclosure in favor of the mortgagee plaintiff, Selene Finance, L.P. The defendant claims that the court improperly denied his motion to open and awarded attorney’s fees to the plaintiff. We affirm the judgment of the trial court.

The following undisputed facts are relevant to this appeal. The plaintiff is the holder of a mortgage and note on the defendant’s property located on Casey Lane in Wethersfield (property). The note entered default, and the plaintiff accelerated the amount due and declared the note due. When the defendant failed to cure the default, the plaintiff initiated foreclosure proceedings on the mortgage securing the note. The marshal left a true and attested verified copy of the notice, summons and complaint at the property.

On April 20, 2010, the plaintiff filed a motion for default for failure to appear and a motion for judgment of strict foreclosure. The court granted both motions.

The defendant failed to redeem the property, and the plaintiff filed a motion for deficiency judgment against the defendant on August 27, 2010.

On September 30, 2010, the defendant filed a motion to open the judgment of strict foreclosure. By way of two separate affidavits in support of the motion, the defendant claimed that he was not served with the complaint and did not receive notice of the motion for default or the motion for judgment of strict foreclosure. The motion to open appeared on the short calendar for October 12, 2010, and was marked ‘‘ready’’ for argument.

Counsel for the plaintiff appeared and objected to the motion, arguing that title to the property had vested in the plaintiff. Counsel for the defendant did not attend. The court denied the motion and awarded the plaintiff $150 in attorney’s fees. The defendant filed the present appeal on October 18, 2010.

The court issued an articulation on September 13, 2011. Citing General Statutes § 49-15 (a) (1) and (2),2 the court stated that title to the property had vested in the plaintiff and that the plaintiff properly had objected to the motion to open. Furthermore, the court stated that it awarded the plaintiff attorney’s fees because counsel for the defendant did not appear to prosecute the motion.

The defendant claims that the court abused its discretion in denying his motion to open the judgment of strict foreclosure and in awarding the plaintiff attorney’s fees.

He argues that he did not have proper notice of the foreclosure proceedings. We are not persuaded. ‘‘[A] judgment of strict foreclosure ordinarily cannot be opened after the law day has passed, [unless] the judgment [is] attacked on the ground that the court lacked jurisdiction over the party challenging it. . . . Once title has vested, no practical relief is available [p]rovided that this vesting has occurred pursuant to an authorized exercise of jurisdiction by the trial court . . . .’’ (Citation omitted; internal quotation marks omitted.) Highgate Condominium Assn., Inc. v. Miller, 129 Conn. App. 429, 434–35, 21 A.3d 853 (2011).

At the hearing on the defendant’s motion to open, the defendant did not claim that title to the property had not vested in the plaintiff or that the abode service of the summons and complaint was somehow improper.

Nevertheless, the defendant now improperly attempts to make these claims on appeal. We decline to consider them.3 Under these circumstances, and in accord with § 49-15 (a) (2), the court could grant the defendant’s motion to open only upon the agreement of the parties.

Since there was no assertion that the parties had come to any such agreement, and the record reflects that there was no such agreement, the court properly denied the defendant’s motion to open.

The defendant’s claim that the court’s award of attorney’s fees was improper is without merit. ‘‘[W]e review the trial court’s decision to award attorney’s fees for abuse of discretion. . . . Under the abuse of discretion standard of review, [w]e will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . [Thus, our] review of such rulings is limited to the questions of whether the trial court correctly applied the law and reasonably could have reached the conclusion that it did.’’ (Internal quotation marks omitted.) Noel v. Ribbits, LLC, 132 Conn. App. 531, 534–35, 35 A.3d 1078 (2011). After reviewing the record, we conclude that the court’s award of attorney’s fees to the plaintiff was reasonable and not an abuse of its discretion.

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See: http://www.jud.ct.gov/external/supapp/Cases/AROap/AP137/137AP470.pdf

Outcome: The judgment is affirmed.

Plaintiff's Experts:

Defendant's Experts:

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