Wells Fargo Bank, N.A. v. Melahn , 148 Conn. App. 1 ( 2014 )

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WELLS FARGO BANK, N.A., TRUSTEE v. MICHAEL
JOHN MELAHN ET AL.
(AC 34726)
Gruendel, Bear and Flynn, Js.
Argued November 12, 2013—officially released February 4, 2014
(Appeal from Superior Court, judicial district of
Danbury, Pavia, J.)
Benjamin Gershberg, with whom, on the brief, was
Ridgely Whitmore Brown, for the appellant (named
defendant).
Opinion
BEAR, J. The defendant Michael John Melahn1
appeals2 from the trial court’s judgment denying his
motion to open the strict foreclosure action that was
instituted against him by the plaintiff, Wells Fargo Bank,
N.A., as trustee.3 We conclude that the court had the
jurisdiction and authority to open, and that it should
have opened, the judgment of strict foreclosure after
the running of the law day in order to effectuate the
clear terms of its judgment, with which the plaintiff
encumbrancer had failed to comply and then falsely
certified that it had complied. Accordingly, given the
unusual specific facts and circumstances of this case,
including the omissions and falsification by the plaintiff
constituting its noncompliance with the strict foreclo-
sure judgment of the court, we reverse the judgment
of the trial court denying the defendant’s motion to
dismiss the strict foreclosure action.
The following facts inform our review of the defen-
dant’s claim. On September 9, 2010, the plaintiff filed
an action against the defendant to foreclose a mortgage
on certain of his real property. The defendant was
defaulted for failure to appear on November 2, 2010.
The court rendered a judgment of strict foreclosure on
November 22, 2010, with a law day of January 11, 2011.
As part of its judgment, the court ordered the plaintiff
to ‘‘send notice to nonappearing individual defendants
by regular and certified mail in accordance with the
standing orders.’’ Paragraph D of the uniform foreclo-
sure standing orders, form JD-CV-104, provides: ‘‘Within
10 days following the entry of judgment of strict foreclo-
sure the plaintiff must send a letter by certified mail,
return receipt requested, and by regular mail, to all non-
appearing defendant owners of the equity and a copy
of the notice must be sent to the clerk’s office. The
letter must contain the following information: a.) the
letter is being sent by order of the Superior Court; b.)
the terms of the judgment of strict foreclosure; c.) non-
appearing defendant owner(s) of equity risk the loss of
the property if they fail to take steps to protect their
interest in the property on or before the defendant
owners’ law day; d.) non-appearing defendant owner(s)
should either file an individual appearance or have
counsel file an appearance in order to protect their
interest in the equity. The plaintiff must file the return
receipt with the Court. The Plaintiff Must Not File A
Certificate Of Foreclosure On The Land Records Before
Proof Of Mailing Has Been Filed With The Court.’’ On
November 23, 2010, the court sent notice of the order
and judgment to the plaintiff. The plaintiff, however,
did not send notice to the defendant until January 7,
2011, four days before his law day, and the certified
notice was not delivered to him until January 11, 2011,
the actual law day. The notice sent to the then nonap-
pearing defendant also did not contain the important
information required by the standing orders, which the
court had mandated in its judgment. Despite this defi-
ciency, the plaintiff nevertheless certified to the court
that notice had been mailed ‘‘in compliance with Uni-
form Foreclosure Standing Order JD-CV-794 and JD-CV-
104 (d), on January 7, 2011, to all counsel and pro se
parties of record to this action . . . .’’5 (Emphasis
omitted.)
On February 22, 2011, after the defendant secured
legal representation, his attorney filed an appearance
in the case, and, on March 31, 2011, he filed a motion
to dismiss the foreclosure action due to the plaintiff’s
noncompliance with the court’s judgment and the false
certification. The plaintiff opposed the motion. On July
14, 2011, the court opened the judgment of strict foreclo-
sure and granted the defendant’s motion to dismiss,
holding that because the plaintiff had ‘‘failed to comply
with the notice requirement of the standing orders, the
matter is dismissed as to [the defendant]. . . .’’ On
August 24, 2011, the plaintiff filed a motion to reargue,
citing the case of Falls Mill of Vernon Condominium
Assn., Inc. v. Sudsbury, 128 Conn. App. 314, 320–21,
15 A.3d 1210 (2011).6 The defendant objected to the
plaintiff’s motion and argued that the dismissal was a
proper sanction for the plaintiff’s failure to adhere to
the order contained in the court’s judgment and that it
filed a false certification. The court granted the plain-
tiff’s motion and concluded that, despite the plaintiff’s
failure to adhere to the notice requirements contained
in the judgment of strict foreclosure, the court was
precluded from opening the judgment and dismissing
the action because the law day had passed and title had
become absolute in the plaintiff. The court therefore
vacated its order granting the defendant’s motion to
dismiss and then denied the defendant’s motion. This
appeal followed.
On appeal, the defendant claims that the court
improperly ‘‘grant[ed] reargument and vacat[ed] the dis-
missal’’ of the foreclosure action against the defendant
because ‘‘the plaintiff’s initial noncompliance with the
trial court’s judgment of strict foreclosure [requiring
it] to send notice to the nonappearing defendant in
accordance with the uniform foreclosure standing
orders, JD-CV-104 . . . [and the] plaintiff’s . . . mis-
representing [its] compliance with the standing order,
constitute[d] the sort of fraud . . . and flagrant non-
compliance with the specific order of the trial court as
to vitiate the strict foreclosure judgment post law day.’’
The defendant also argues that the standing orders were
adopted by the judges of the Superior Court to ensure
that nonappearing defendants receive ‘‘constitutional
and due process protection . . . .’’ Given the specific
facts and circumstances of this case, including the omis-
sions and falsification by the plaintiff constituting its
noncompliance with the strict foreclosure judgment of
the court, we conclude that the court had the jurisdic-
tion and authority to open the judgment of strict foreclo-
sure in order to effectuate the clear terms of its
judgment, including that the plaintiff comply with the
uniform foreclosure standing orders, with which the
plaintiff had failed to comply despite certifying oth-
erwise.7
‘‘The law governing strict foreclosure lies at the cross-
roads between the equitable remedies provided by the
judiciary and the statutory remedies provided by the
legislature. . . . Because foreclosure is peculiarly an
equitable action . . . the court may entertain such
questions as are necessary to be determined in order
that complete justice may be done. . . . In exercising
its equitable discretion, however, the court must comply
with mandatory statutory provisions that limit the reme-
dies available to a foreclosing mortgagee. . . . It is our
adjudicatory responsibility to find the appropriate
accommodation between applicable judicial and statu-
tory principles. Just as the legislature is presumed to
enact legislation that renders the body of the law coher-
ent and consistent, rather than contradictory and incon-
sistent . . . [so] courts must discharge their
responsibility, in case by case adjudication, to assure
that the body of the law—both common and statutory—
remains coherent and consistent.’’ (Citations omitted;
internal quotation marks omitted.) New Milford Sav-
ings Bank v. Jajer, 244 Conn. 251, 256–57, 708 A.2d
1378 (1998).
We are mindful that Practice Book § 63-1 (b) provides
that the ‘‘failure to give notice of judgment to a nonap-
pearing party shall not affect the running of the appeal
period,’’ that General Statutes § 49-15 provides that no
judgment of strict foreclosure ‘‘shall be opened after
the title has become absolute in any encumbrancer,’’
and that ‘‘the limitation period of § 49-15 is definitely
jurisdictional.’’ D. Caron & G. Milne, Connecticut Fore-
closures (4th Ed. 2004) § 9.01A, p. 197. Nevertheless,
as our Supreme Court explained in AvalonBay Commu-
nities, Inc. v. Plan & Zoning Commission, 260 Conn.
232, 241, 796 A.2d 1164 (2002): ‘‘We reject [a] hypertech-
nical understanding of the trial court’s continuing juris-
diction to effectuate prior judgments. We conclude,
instead, that the trial court’s continuing jurisdiction is
not separate from, but, rather, derives from, its equita-
ble authority to vindicate judgments. Moreover, we hold
that such equitable authority . . . [derives] from its
inherent powers. See Connecticut Pharmaceutical
Assn., Inc. v. Milano, 191 Conn. [555, 563, 468 A.2d
1230 (1983)] (recognizing ‘trial court’s power to fashion
a remedy appropriate to the vindication of a prior con-
sent judgment’); Papa v. New Haven Federation of
Teachers, 186 Conn. 725, 737, 444 A.2d 196 (1982) (rec-
ognizing ‘the inherent power of the court to coerce
compliance with its orders’).’’ (Emphasis in original;
footnote omitted.) See also Rosado v. Bridgeport
Roman Catholic Diocesan Corp., 276 Conn. 168, 213,
884 A.2d 981 (2005) (explaining and applying reasoning
of AvalonBay Communities, Inc.). In the present case,
where the judgment of the court contained the specific
notice requirements to which the plaintiff was ordered
to adhere, the court necessarily retained the jurisdiction
and authority to effectuate its judgment when the plain-
tiff failed to adhere to the terms of the judgment ren-
dered in its favor and then falsely certified to the court
that it had complied.8
‘‘Courts of equity may grant relief from the operation
of a judgment when to enforce it is against conscience,
and where the appellant had no opportunity to make
defense, or was prevented from so doing by accident,
or the fraud or improper management of the opposite
party, and without fault on his own part. Folwell v.
Howell, 117 Conn. 565, 169 A. 199 [1933]; Dante v. Dante,
93 Conn. 160, 105 A. 353 [1919]; Jarvis v. Martin, 77
Conn. 19, 58 A. 15 [1904]; Smith v. Hall, 71 Conn. 427,
42 A. 86 [1899]; Carrington v. Holabird, 17 Conn. 530,
537 [1846], 19 Conn. 83, 87 [1848]; General Statutes
§ 5701 [now § 52-270].’’9 Hoey v. Investors’ Mortgage &
Guaranty Co., 118 Conn. 226, 230, 171 A. 438 (1934).
‘‘Fraud, accident, mistake, and surprise are recognized
grounds for equitable interference, when one, without
his [or her] own negligence, has lost an opportunity to
present a meritorious defense to an action, and the
enforcement of the judgment so obtained against him
[or her] would be against equity and good conscience,
and there is no adequate remedy at law. Lithuanian
Brotherhelp Society v. Tunila, 80 Conn. 642, 645, 70 A.
25 (1908). Equity will not, save in rare and extreme
cases, relieve against a judgment rendered as the result
of a mistake on the part of a party or his [or her] counsel,
unless the mistake is unmixed with negligence or . . .
unconnected with any negligence or inattention on the
part of the judgment debtor . . . . Jarvis v. Martin,
[supra, 21]; see Hartford Federal Savings & Loan Assn.
v. Stage Harbor Corporation, 181 Conn. 141, 434 A.2d
341 (1980).’’ (Internal quotation marks omitted.)
Cavallo v. Derby Savings Bank, 188 Conn. 281, 285, 449
A.2d 986 (1982); see also Hoey v. Investors’ Mortgage &
Guaranty Co., supra, 230–31.
Furthermore, we repeatedly have held that ‘‘a trial
court has broad discretion to make whole any party
who has suffered as a result of another party’s failure to
comply with a court order.’’ (Internal quotation marks
omitted.) AvalonBay Communities, Inc. v. Plan & Zon-
ing Commission, supra, 260 Conn. 243, citing Nelson
v. Nelson, 13 Conn. App. 355, 367, 536 A.2d 985 (1988)
and Clement v. Clement, 34 Conn. App. 641, 647, 643
A.2d 874 (1994). In AvalonBay Communities, Inc., our
Supreme Court concluded that ‘‘the trial court’s contin-
uing jurisdiction to effectuate its prior judgments, either
by summarily ordering compliance with a clear judg-
ment or by interpreting an ambiguous judgment and
entering orders to effectuate the judgment as interpre-
ted, is grounded in its inherent powers, and is not lim-
ited to cases wherein the noncompliant party is in
contempt, family cases, cases involving injunctions, or
cases wherein the parties have agreed to continuing
jurisdiction.’’ AvalonBay Communities, Inc. v. Plan &
Zoning Commission, supra, 246. The court also
addressed the argument of the defendant, who had con-
tended that the court’s jurisdiction in the cases of Clem-
ent and Nelson had derived from statutory authority,
explaining: ‘‘Clement involved a dispute over a property
assignment following a marital dissolution and that
General Statutes § 46b-86 specifically provides that the
trial court does not have continuing jurisdiction to set
aside, alter or modify property assignments. See Gen-
eral Statutes § 46b-86 (a) (providing in relevant part
that that statute’s provision that order for payment of
alimony or support may at any time be continued, set
aside, altered or modified by court ‘shall not apply to
[property] assignments under section 46b-81’). We also
reject the defendant’s claim that General Statutes § 46b-
87 provides for the court’s continuing jurisdiction over
cases involving family matters. That statute merely rec-
ognizes the court’s common-law contempt power and
provides that the court may award attorney’s fees to
either party in contempt proceedings related to orders
issued under the specified statutes. Moreover, nothing
in either Nelson or Clement suggests that the trial
court’s continuing jurisdiction in those cases derived
from the special nature of marital dissolution cases.
Rather, the Appellate Court in Clement specifically
stated that, pursuant to [General Statutes] § 52-212a,
the trial court ‘[had] no jurisdiction to open a judgment
and affect the property assignment except within four
months after the original judgment’; Clement v. Clem-
ent, supra, 644–45; but that ‘it [was] within the equitable
powers of the trial court’ to effectuate its prior judgment
at any time . . . . Id., 646. Accordingly, the Appellate
Court in Clement could have concluded only that the
trial court’s continuing jurisdiction over that matter
derived from its equitable authority to vindicate judg-
ments.’’ (Emphasis in original.) AvalonBay Communi-
ties, Inc. v. Plan & Zoning Commission, supra, 243–44;
see also Rosado v. Bridgeport Roman Catholic Dioce-
san Corp., supra, 276 Conn. 211–13.
Recently, our Supreme Court again reiterated that
‘‘ ‘[e]quity will not, save in rare and extreme cases,
relieve against a judgment rendered as the result of a
mistake on the part of a party or his counsel, unless
the mistake is unmixed with negligence, or . . . uncon-
nected with any negligence or inattention on the part
of the judgment debtor, or . . . when the negligence
of the party is not one of the producing causes.’ . . .
Jarvis v. Martin, supra, [77 Conn.] 21.’’ Citibank, N.A.
v. Lindland, 310 Conn. 147, 174 n.16, 75 A.3d 651 (2013).
The court then explained: ‘‘Granting relief to [an injured
party] in the present case, however, would not consti-
tute a departure from this long established principle.
Instead, we are of the view that the circumstances of
the present case, which the trial court aptly described
as ‘sui generis,’ constitute precisely the sort of ‘rare and
extreme [case]’; Jarvis v. Martin, supra, 21; in which
equity permits a court to provide relief in response to
an egregious mistake. See Lomas & Nettleton Co. v.
Isacs, 101 Conn. 614, 620–21, 127 A. 6 (1924) (observing
that this court has ‘upheld the power of a court of equity
to grant relief from the consequences of an innocent
mistake, although the mistake was not unmixed with
negligence . . . and although it was a mistake of law
. . . [when] the failure to do so would allow one to
enrich himself unjustly at the expense of another’ . . .).
This is particularly true in the present case given the
‘highly relevant’ conduct of the plaintiff’s counsel in
creating these extraordinary circumstances and given
the ease with which this predicament might have been
averted if the plaintiff’s counsel had addressed the court
with greater accuracy.’’ Citibank v. Lindland, supra,
174 n.16.
In the present case, we conclude that this is one of
those rare and exceptional circumstances discussed in
the foregoing cases. Here, the plaintiff encumbrancer
itself failed to comply with the court’s judgment of strict
foreclosure, and then falsely certified to the court that
it had complied, to the detriment of the then nonap-
pearing defendant owner of the property.10 Under such
limited circumstances, we conclude that the court had
the jurisdiction and authority to open the judgment of
strict foreclosure, despite the passing of the law day,
and that it abused its discretion when it declined to do
so and denied the defendant’s motion to dismiss.
The judgment is reversed and the case is remanded
for further proceedings according to law.
In this opinion the other judges concurred.
1
Also named as defendants in the foreclosure action were Danbury Radio-
logical Associates, P.C., and Danbury Hospital. They, however, are not par-
ties to this appeal. We therefore refer in this opinion to Melahn as the
defendant.
2
This appeal was filed jointly with the appeal of the defendant’s wife,
Kathleen Melahn, in a summary process action that the plaintiff had brought
against her. The propriety of the joint filing of these appeals and the issues
related to Kathleen Melahn’s appeal need not be discussed nor decided
because the trial court dismissed the summary process action after the filing
of the present appeal. Accordingly, the appeal as it relates to Kathleen
Melahn is moot.
The defendant also raises an issue regarding his filing of a motion for a
temporary injunction and a writ of audita querela. Because we conclude
that the court should have opened the judgment of strict foreclosure to
effectuate the terms of that judgment, we need not consider this issue.
3
The plaintiff has not filed either an appearance or a brief in this appeal.
4
Form JD-CV-79 contains the standing order in a foreclosure by sale
action.
5
It is unclear from the record whether the trial court clerk sent notice
of the judgment of strict foreclosure to the defendant. The order states in
relevant part: ‘‘via mail to plaintiff—[plaintiff] to send notice per standing
orders . . . .’’ The court’s ‘‘Notice of Judgment of Strict Foreclosure’’ then
provides that ‘‘Copies sent Tuesday, November 23, 2010 to: MARTHA CROOG
LLC [plaintiff’s counsel].’’ There is no indication that the court also sent
notice to the defendant.
6
We conclude that Falls Mill of Vernon Condominium Assn., Inc. v.
Sudsbury, supra, 128 Conn. App. 320–21, is distinguishable from the present
case in several respects, including that there was no allegation that the
plaintiff in that case had failed to comply with the terms of the court’s
judgment or that it had falsely certified compliance, the case did not concern
a nonappearing defendant owner, and there was no allegation that the
defendant had not received actual notice.
7
We make no determination on the appropriateness of a dismissal as a
sanction for the plaintiff’s failure to comply with the court’s judgment and
its improper certification. The appropriate sanction, if any, is discretionary
and may be reconsidered by the court on remand.
8
It is likely that the jurisdictional element presented by the passing of
the law day and the vesting of title in a strict foreclosure judgment concerns
personal jurisdiction rather than subject matter jurisdiction. See D. Caron &
G. Milne, supra, pp. 197–98; see also In re Baby Girl B., 224 Conn. 263, 292,
618 A.2d 1 (1992), citing, inter alia, the strict foreclosure case of Ferguson
v. Sabo, 115 Conn. 619, 623, 162 A. 844 (1932), for the proposition that ‘‘[o]ur
cases have recognized that a party may waive its objection to a trial court’s
erroneous exercise of personal jurisdiction . . . .’’ ‘‘Although the limitation
period of § 49-15 is definitely jurisdictional, it may still be waived under
certain circumstances.’’ D. Caron & G. Milne, supra, p. 197. This is demon-
strated in the case of Ferguson v. Sabo, supra, 619. In Ferguson, the plaintiff
obtained a judgment of strict foreclosure, and, following the passing of the
law days and the vesting of title, the defendant owner filed a motion to
open the judgment, which was granted by the trial court. Id., 620–21. The
defendant then filed an answer to the foreclosure complaint and brought a
counterclaim against the plaintiff, which the plaintiff answered. Id., 621.
The matter was tried to the court, and, following a judgment in favor of the
defendant on the counterclaim, the plaintiff filed a motion to open and
vacate the judgment, claiming it was null and void because the court did
not have jurisdiction to open the judgment in the first place because title
had vested in the plaintiff. Id. The Supreme Court disagreed and held that
the plaintiff had waived any claim of jurisdictional defect by proceeding
with the case. Id., 623.
9
General Statutes § 52-270 provides in relevant part: ‘‘(a) The Superior
Court may grant a new trial of any action that may come before it, for
mispleading, the discovery of new evidence or want of actual notice of the
action to any defendant or of a reasonable opportunity to appear and defend,
when a just defense in whole or part existed, or the want of actual notice
to any plaintiff of the entry of a nonsuit for failure to appear at trial or
dismissal for failure to prosecute with reasonable diligence, or for other
reasonable cause, according to the usual rules in such cases. The judges of
the Superior Court may in addition provide by rule for the granting of new
trials upon prompt request in cases where the parties or their counsel
have not adequately protected their rights during the original trial of an
action. . . .’’
10
Given the circumstances of the plaintiff’s noncompliance with a clear
order and judgment of the court and its false certification to the court, we
decline to examine the record for proof of any actual harm to the defendant.