HSBC Bank USA, N.A. v. Lahr , 165 Conn. App. 144 ( 2016 )

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HSBC BANK USA, NATIONAL ASSOCIATION v.
CAMILLE LAHR ET AL.
(AC 37266)
DiPentima, C. J., and Mullins and Norcott, Js.
Argued December 7, 2015—officially released May 3, 2016
(Appeal from Superior Court, judicial district of
Fairfield, Hon. Richard P. Gilardi, judge trial referee.)
Nicholas Stanisci, for the appellant (named
defendant).
William R. Dziedzic, for the appellee (plaintiff).
Opinion
DiPENTIMA, C. J. The defendant Camille Lahr, also
known as Camille M. Russo-Lahr, appeals from the judg-
ment of strict foreclosure rendered in favor of the plain-
tiff, HSBC Bank USA, National Association. On appeal,
she claims that the court improperly denied her motion
to open the judgment of strict foreclosure. Specifically,
she argues that no further actions should have occurred
in the case after she had filed a suggestion of death
regarding the defendant Charles Lahr (decedent)1 until
the plaintiff applied for an order to substitute the dece-
dent’s executor or administrator as provided in General
Statutes § 52-599, the survival of cause of action statute.
We affirm the judgment of the trial court.
The following facts and procedural history are rele-
vant to this appeal. On January 3, 2013, the plaintiff
commenced a foreclosure action against the defendant
and the decedent. In its complaint, the plaintiff alleged
that they owed Opteum Financial Services, LLC,
$187,000, and that this debt was secured by a mortgage
on property located at 155 Lambert Drive in Stratford.
The mortgage was transferred to the plaintiff, and it
became the party entitled to collect the debt. The plain-
tiff claimed that the note and mortgage were in default
by virtue of nonpayment as of June 1, 2011. The plaintiff
sought a foreclosure of the mortgage, immediate pos-
session of the property, a deficiency judgment, the
appointment of a receiver to collect rents and profits,
reasonable attorney’s fees, and other such relief as
required.
On May 16, 2014, the court granted the plaintiff’s
motion to default the defendant for failing to plead. On
June 5, 2014, the court granted the plaintiff’s motion to
default the decedent for failing to appear. On April 9,
2014, the plaintiff moved for a judgment of strict fore-
closure.
The defendant filed a suggestion of death on August
11, 2014.2 It stated that the decedent had died on January
27, 2014.3 It also referenced § 52-599 and indicated that
‘‘the action should be stayed until the plaintiff proceeds
pursuant to [that statute].’’
On August 18, 2014, the court granted the plaintiff’s
motion for a judgment of strict foreclosure.4 It found
the fair market value of the property to be $149,000,
the debt to be $217,302.20, and attorney’s fees in the
amount of $3100. It also set the law day for October
14, 2014. The defendant’s counsel did not attend the
hearing on August 18, 2014.
On September 9, 2014, the defendant moved to open
the judgment of strict foreclosure. She again argued
that because a suggestion of death had been filed prior
to the rendering of judgment, the court should not have
proceeded until the plaintiff complied with § 52-599.
defendant’s counsel requested that the court open and
vacate the judgment of strict foreclosure because it was
not ‘‘proper’’ for the court to render a judgment until
the plaintiff substituted a representative of the estate
for the decedent. The plaintiff’s counsel countered that
such a substitution was unnecessary because the plain-
tiff had filed a lis pendens5 on the land records, and,
therefore, pursuant to General Statutes § 52-325,6 it was
not obligated or required to take any further action.
After hearing further argument, the court denied the
defendant’s motion. It set the new law day for Novem-
ber 18, 2014. This appeal followed.
In her appellate brief, the defendant iterated her argu-
ment that § 52-599 caused the case to have no vitality
after the suggestion of death had been filed and until
a representative of the estate had been substituted for
the decedent. She further contended that §§ 52-599 and
52-325 may be harmonized by requiring the plaintiff to
substitute the decedent’s executor following which
§ 52-325 would make all further proceedings binding
on subsequent takers of the property. The plaintiff coun-
tered, inter alia, that § 52-325 controls, and that it was
not required to make any substitution in this case.
Following oral argument before this court, we
ordered the parties to file supplemental briefs to
address the applicability and effect of General Statutes
§ 52-600 in the present case. Section 52-600 provides:
‘‘If there are two or more plaintiffs or defendants in
any action, one or more of whom die before final judg-
ment, and the cause of action survives to or against the
others, the action shall not abate by reason of the death.
After the death is noted on the record, the action shall
proceed.’’ We conclude that as a result of § 52-600, the
trial court did not abuse its discretion in denying the
defendant’s motion to open the judgment.
As an initial matter, we identify the limited issue
before us. Only the defendant has appealed from the
denial of her motion to open the judgment of strict
foreclosure rendered on August 18, 2014.7 ‘‘A motion
to open and vacate a judgment . . . is addressed to
the [trial] court’s discretion, and the action of the trial
court will not be disturbed on appeal unless it acted
unreasonably and in clear abuse of its discretion. . . .
In determining whether the trial court abused its discre-
tion, this court must make every reasonable presump-
tion in favor of its action. . . . The manner in which
[this] discretion is exercised will not be disturbed so
long as the court could reasonably conclude as it did.’’
(Internal quotation marks omitted.) Bank of America,
N.A. v. Thomas, 151 Conn. App. 790, 798, 96 A.3d 624
(2014); see also Wells Fargo Bank Minnesota, N.A. v.
Russo, 148 Conn. App. 302, 306, 84 A.3d 1204, cert.
denied, 311 Conn. 950, 91 A.3d 462 (2014).
In the present case, the court rejected the defendant’s
argument that § 52-599 ‘‘stopped’’ or abated the pro-
ceedings until the plaintiff substituted a representative
of the decedent’s estate. We agree with this determina-
tion by the court, albeit on a different basis than the
court’s apparent acceptance of the plaintiff’s position
regarding § 52-325. Instead, we note that § 52-600
applies in the present case because the plaintiff had
named both the defendant and the decedent in this
foreclosure action. That statute specifically states that
‘‘[i]f there are two or more . . . defendants in any
action, one or more of whom die before final judgment,
and the cause of action survives to or against the others,
the action shall not abate by reason of the death.’’ Gen-
eral Statutes § 52-600.
This application of § 52-600 is supported by our case
law. For example, in Rocque v. DeMilo & Co., 85 Conn.
App. 512, 522, 857 A.2d 976 (2004), the surviving defen-
dants argued that the death of Frank DeMilo abated
the action and deprived the court of subject matter
jurisdiction. We rejected this argument, concluding:
‘‘The defendants, however, appear to overlook the fact
that Frank DeMilo was one of three defendants in the
action and that, after his death, the action continued
as to his two codefendants. . . . As the action contin-
ued against the remaining defendants, the court main-
tained authority to issue orders regarding pending
motions that affected the remaining defendants, includ-
ing the motion to dismiss the counterclaim. Pursuant
to the express statutory authority of § 52-600, the death
of Frank DeMilo did not stay the proceedings as to the
remaining defendants, and the court, therefore, retained
jurisdiction to rule on the motion to dismiss.’’ (Citation
omitted; internal quotation marks omitted.) Id.; see also
Warner v. Lancia, 46 Conn. App. 150, 153, 698 A.2d 938
(1997) (pursuant to § 52-600, case could proceed against
surviving defendant regardless of whether executrix
was substituted for deceased defendant). In the present
case, the passing of the decedent did not stay the pro-
ceedings as to the defendant, the sole appellant in this
case. Accordingly, we agree, albeit on different grounds,
with the trial court that the foreclosure action in the
present case was not abated following the suggestion
of the death filed by the defendant. See Studer v. Studer,
320 Conn. 483, 486, A.3d (2016) (judgment of
trial court may be affirmed on different grounds). The
court, therefore, did not abuse its discretion in denying
the defendant’s motion to open the judgment of strict
foreclosure.
The judgment is affirmed and the case remanded for
the purpose of setting new law days.
In this opinion the other judges concurred.
1
The plaintiff also named Mortgage Electronic Registration Systems, Inc.,
as a defendant by virtue of that entity’s prior mortgage on the property. For
convenience, we refer in this opinion to Camille Lahr as the defendant.
2
One decision from the Superior Court has noted that in the absence of
any appellate authority, ‘‘[a] suggestion of death, although not formally
recognized by the Practice Book, is the preferred method of compliance
with the written notification requirement of § 52-599.’’ Liljehult v. Johnson,
Superior Court, Judicial District of New London, Docket No. CV-11-6010384-
S (October 11, 2013).
3
The defendant attached a copy of the certificate of death to the suggestion
of death filed with the court.
4
‘‘The law governing strict foreclosure lies at the crossroads between the
equitable remedies provided by the judiciary and the statutory remedies
provided by the legislature. . . . Because foreclosure is peculiarly an equita-
ble action . . . the court may entertain such questions as are necessary to
be determined in order that complete justice may be done. . . . In exercis-
ing its equitable discretion, however, the court must comply with mandatory
statutory provisions that limit the remedies available to a foreclosing mort-
gagee. . . . It is our adjudicatory responsibility to find the appropriate
accommodation between applicable judicial and statutory principles. Just
as the legislature is presumed to enact legislation that renders the body of
the law coherent and consistent, rather than contradictory and inconsistent
. . . [so] courts must discharge their responsibility, in case by case adjudica-
tion, to assure that the body of the law—both common and statutory—
remains coherent and consistent.’’ (Internal quotation marks omitted.) Wells
Fargo Bank, N.A. v. Melahn, 148 Conn. App. 1, 7, 85 A.3d 1 (2014).
5
‘‘A notice of lis pendens is appropriate in any case where the outcome
of the case will in some way, either directly or indirectly, affect the title to
or an interest in real property.’’ Corsino v. Telesca, 32 Conn. App. 627, 632,
630 A.2d 154, cert. denied, 227 Conn. 931, 632 A.2d 703 (1993).
6
General Statutes § 52-325 (a) provides in relevant part: ‘‘In any action
in a court of this state . . . (1) the plaintiff or his attorney, at the time the
action is commenced or afterwards . . . may cause to be recorded in the
office of the town clerk of each town in which the property is situated a
notice of lis pendens, containing the names of the parties, the nature and
object of the action, the court to which it is returnable and the term, session
or return day thereof, the date of the process and the description of the
property, except that no such notice may be recorded in an action that
alleges an illegal, invalid or defective transfer of an interest in real property
unless the complaint or affirmative cause of action contains the date of the
initial illegal, invalid or defective transfer of an interest in real property and
such transfer has occurred less than sixty years prior to the commencement
of such action. Such notice shall, from the time of the recording only, be
notice to any person thereafter acquiring any interest in such property
of the pendency of the action; and each person whose conveyance or encum-
brance is subsequently executed or subsequently recorded or whose interest
is thereafter obtained, by descent or otherwise, shall be deemed to be a
subsequent purchaser or encumbrancer, and shall be bound by all proceed-
ings taken after the recording of such notice, to the same extent as if he
were made a party to the action. For the purpose of this section an action
shall be deemed to be pending from the time of the recording of such notice;
provided such notice shall be of no avail unless service of the process is
completed within the time provided by law. . . .’’ (Emphasis added.)
7
The defendant argues that the interpretation of the various statutes at
issue in this case requires this court to employ the plenary standard of
review. We conclude, for the reasons stated in our analysis, and the proce-
dural posture of this appeal, that the appropriate standard of review is abuse
of discretion.