Connecticut National Mortgage Co. v. Knudsen , 323 Conn. 684 ( 2016 )

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CONNECTICUT NATIONAL MORTGAGE COMPANY
v. LISE-LOTTE KNUDSEN ET AL.
(SC 19672)
Eveleigh, McDonald, Espinosa, Robinson and Lavine, Js.
Argued November 16—officially released December 13, 2016
Lise-Lotte Knudsen, self-represented, the appellant
(named defendant).
Benjamin T. Staskiewicz, for the appellee (plaintiff
Wells Fargo Bank, N.A.).
Opinion
PER CURIAM. The original plaintiff, Connecticut
National Mortgage Company, commenced this action
in 1989 seeking to foreclose a mortgage on a parcel of
real property that is owned by the named defendant,
Lise-Lotte Knudsen, and is located in the town of Red-
ding.1 Although the trial court had rendered a judgment
of foreclosure in 1994, that judgment has been opened
and modified several times over the years. Eventually,
on August 20, 2012, the plaintiff Wells Fargo Bank, N.A.,
was substituted as the plaintiff.2 On June 8, 2015, the
trial court rendered a new judgment of strict foreclosure
that extended the defendant’s law day to August 4,
2015. On June 17, 2015, the defendant filed a motion for
permission to file a motion to vacate the new judgment,
which was denied on June 18, 2015. The defendant
appealed to the Appellate Court on June 26, 2015, within
the twenty day appeal periods3 triggered by both the
new judgment and the denial of the defendant’s subse-
quent motion.4
The Appellate Court, acting on its own motion, then
ordered the parties to appear ‘‘and give reasons, if any,
why [the] appeal should not be dismissed as moot
because title vested in the plaintiff by the passing of
the law days and the defendant’s appeal following the
denial of her [motion] on June 18, 2015, did not stay
the passing of the law days. See . . . Practice Book
§ 61-11 (g).’’5 (Citations omitted.)
Practice Book § 61-11 (g)6 became effective on Octo-
ber 1, 2013. That provision was enacted to put a stop to
the ‘‘ ‘perpetual motion machine’ ’’7 and accompanying
appellate litigation generated when a defendant files
serial motions to open a judgment of strict foreclosure
and, each time a motion to open is denied, files a new
appeal from the judgment denying the motion to open.8
Citigroup Global Markets Realty Corp. v. Christiansen,
163 Conn. App. 635, 639, 137 A.3d 76 (2016). When no
automatic appellate stay is in effect, there is nothing to
prevent the law days from passing, rendering a pending
appeal from a judgment of strict foreclosure moot.
Argent Mortgage Co., LLC v. Huertas, 288 Conn. 568,
574–75, 953 A.2d 868 (2008).
It is undisputed that the defendant’s June 17, 2015
motion was a ‘‘subsequent contested motion’’ as con-
templated by § 61-11 (g), and that it was unaccompanied
by an affidavit of good cause. The Appellate Court dis-
missed the defendant’s appeal on January 13, 2016,9
apparently determining that, because no automatic
appellate stay was triggered on the denial of that
motion, no appellate stay prevented the law day from
passing on August 4, 2015, such that title had vested
irrevocably in the plaintiff and the defendant’s appeal
was therefore moot.
The plaintiff sought reconsideration of the judgment
of dismissal. The Appellate Court dismissed the motion
for reconsideration on January 29, 2016. On March 9,
2016, we granted the defendant’s petition for certifica-
tion based on the following question: ‘‘Did the Appellate
Court properly dismiss the appeal in this matter as
moot?’’ Connecticut National Mortgage Co. v. Knud-
sen, 320 Conn. 926, 926–27, 133 A.3d 458 (2016).
In the present case, the trial court granted the defen-
dant’s motion to open the judgment on June 8, 2015,
and extended the law day to August 4, 2015. On June
26, 2015, the defendant filed an appeal to the Appellate
Court, which was within twenty days of the trial court’s
June 8, 2015 decision. The defendant’s appeal was filed
prior to the law day and title never passed to the plain-
tiff. Moreover, the defendant’s appeal was timely
because it was filed within the applicable twenty day
appeal period. See Practice Book § 63-1 (a). The Appel-
late Court apparently characterized this appeal as one
taken from the judgment denying the defendant’s June
17, 2015 motion which, pursuant to Practice Book § 61-
11 (g), did not give rise to an automatic stay. However,
this appeal was filed within the twenty day appeal
period for both the order denying the defendant’s June
17, 2015 motion and the June 8, 2015 judgment that set
a new law date. The June 8, 2015 judgment triggered
an automatic stay because it was an appealable final
judgment, and the defendant’s filing of this appeal
within twenty days of that judgment continued the stay
‘‘until the final determination of [this appeal].’’ Practice
Book § 61-11 (a).10
Both parties have argued that the Appellate Court’s
order of dismissal should be reversed and that the case
should be remanded to that court for further proceed-
ings. We agree. An ‘‘automatic’’ appellate stay of pro-
ceedings to enforce the judgment went into effect on
June 8, 2015, when the trial court rendered a new judg-
ment of strict foreclosure setting a law date of August
4, 2015. See Practice Book § 61-11 (a). Because the
defendant appealed within twenty days of that judg-
ment, the automatic stay was in effect on August 4,
2015, and will continue in effect until the ‘‘final determi-
nation of the [appeal].’’ Practice Book § 61-11 (a). Since
the appellate stay prevented title from vesting in the
plaintiff by operation of law when the defendant failed
to exercise her right of redemption on August 4, 2015,
the case should not have been dismissed by the Appel-
late Court as moot.
The judgment of the Appellate Court is reversed and
the case is remanded to that court for further proceed-
ings according to law.
1
We note that Knudsen’s name has changed during the pendency of this
action. See Lind-Larsen v. Fleet National Bank of Connecticut, 84 Conn.
App. 1, 3 n.1, 852 A.2d 799, cert. denied, 271 Conn. 940, 861 A.2d 514 (2004).
We also note that, although additional parties with interests in the property
subordinate to the mortgage at issue have also been named as defendants
in the present case, these parties are not relevant to this appeal. In the
interest of consistency with the original pleadings, we hereinafter refer to
Knudsen as the defendant.
2
We note that, although several other parties have been substituted as
the plaintiff in the present action as the result of successive assignments,
none of those parties are relevant to the present appeal. In the interest of
simplicity, we hereinafter refer to Wells Fargo Bank, N.A., as the plaintiff.
3
Practice Book § 63-1 (a) provides in relevant part that ‘‘[u]nless a different
time period is provided by statute, an appeal must be filed within twenty
days of the date notice of the judgment or decision is given. . . .’’
4
This is the defendant’s sixth appeal in this foreclosure action.
5
The Appellate Court’s order also cited General Statutes § 49-15, which
provides in relevant part that a judgment of strict foreclosure shall not be
opened ‘‘after the title has become absolute in any encumbrancer . . . .’’
Finally, the order cited Appellate Court precedent establishing that an appeal
from a judgment of strict foreclosure is rendered moot when, during the
pendency of the appeal, the law days pass and title lawfully vests in the
foreclosing party. See Ocwen Federal Bank, FSB v. Charles, 95 Conn. App.
315, 321–25, 898 A.2d 197, cert. denied, 279 Conn. 909, 902 A.2d 1069 (2006);
Barclays Bank of New York v. Ivler, 20 Conn. App. 163, 166–68, 565 A.2d
252, cert. denied, 213 Conn. 809, 568 A.2d 792 (1989). Supreme Court prece-
dent also establishes that an appeal from a judgment of strict foreclosure
is moot when the law days pass, the rights of redemption are cut off, and
title becomes ‘‘ ‘unconditional’ ’’ in the plaintiff. Argent Mortgage Co., LLC
v. Huertas, 288 Conn. 568, 574–75, 953 A.2d 868 (2008).
6
Practice Book § 61-11 (g) provides in relevant part: ‘‘In any action for
foreclosure in which the owner of the equity has filed, and the court has
denied, at least two prior motions to open or other similar motion, no
automatic stay shall arise upon the court’s denial of any subsequent con-
tested motion by that party, unless the party certifies under oath, in an
affidavit accompanying the motion, that the motion was filed for good cause
arising after the court’s ruling on the party’s most recent motion. . . .’’
7
‘‘Prior to [the effective date of Practice Book § 61-11 (g)], a defendant
in a foreclosure action could employ consecutive motions to open the judg-
ment in tandem with Practice Book §§ 61-11 and 61-4 ‘to create almost the
perfect perpetual motion machine.’ ’’ Citigroup Global Markets Realty Corp.
v. Christiansen, 163 Conn. App. 635, 639, 137 A.3d 76 (2016).
8
The denial of a motion to open a judgment of strict foreclosure is an
appealable final judgment itself and distinctly appealable from the underlying
judgment. See Farmers & Mechanics Savings Bank v. Sullivan, 216 Conn.
341, 356 n.10, 579 A.2d 1054 (1990).
9
A hearing on the Appellate Court’s ‘‘own motion’’ was scheduled on
January 13, 2016, and the Appellate Court dismissed the appeal after both
the defendant and the plaintiff failed to appear.
10
Practice Book § 61-11 (a) provides in relevant part that ‘‘proceedings
to enforce or carry out the judgment or order shall be automatically stayed
until the time to file an appeal has expired. If an appeal is filed, such
proceedings shall be stayed until the final determination of the cause. . . .’’