Wachovia Mortgage, FSB v. Toczek , 189 Conn. App. 812 ( 2019 )

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WACHOVIA MORTGAGE, FSB v. PAWEL
TOCZEK ET AL.
(AC 42225)
Alvord, Keller, Elgo, Bright and Moll, Js.
Syllabus
The plaintiff W Co. sought to foreclose a mortgage on certain real property
owned by the defendant T. After T quitclaimed his interest in the property
to A, the trial court granted A’s motion to intervene as a defendant.
Thereafter, F Co. was substituted as the plaintiff, and the trial court
rendered a judgment of strict foreclosure in favor of F Co., from which
A appealed to this court, which affirmed the judgment and remanded
the case to the trial court for the purpose of setting new law days.
Subsequently, the trial court granted F Co.’s motion to reset the law
days in accordance with this court’s remand order and set new law
days, and A appealed to this court. Following the trial court’s issuance
of an order terminating the appellate stay for any subsequent appeals,
this court dismissed A’s appeal as frivolous and granted her motion for
review of the trial court’s order terminating the appellate stay but denied
the relief requested therein. A then timely filed motions for reconsidera-
tion en banc of the dismissal of the appeal and the denial of relief from
the termination of the appellate stay. While A’s motions for reconsidera-
tion en banc were still pending before this court, the trial court granted
F Co.’s motion to reset the law days and set the first law day for
December 4, 2018. Thereafter, A appealed to this court challenging the
trial court’s order resetting the law days, this court denied her motions
for reconsideration en banc, and F Co. filed a motion to dismiss the
appeal. A subsequently filed a motion to open the judgment of strict
foreclosure and to extend the law days, which the trial court denied.
The trial court thereafter denied A’s motion to reargue, and A amended
her appeal to challenge the denial of those motions. This court then
ordered, sua sponte, the parties to file memoranda addressing the issue
of whether the trial court’s order resetting the law days should be
summarily reversed as being in contravention of the appellate stay.
Thereafter, F Co. filed a motion to dismiss the fourth appeal and the
amended appeal as moot and the amended appeal as frivolous. Held
that the trial court acted in contravention of the appellate stay when it
granted F Co.’s motion to reset the law days and set the law days:
pursuant to the binding authority of RAL Management, Inc. v. Valley
View Associates (278 Conn. 672), our Supreme Court held that resetting
law days while an appellate stay is in effect violates the stay and cannot
be given any legal effect because doing so is an action to carry out or
to enforce the judgment pending appeal, the record revealed that the
appellate stay here was in effect on October 15, 2018, when the trial
court granted F Co.’s motion and set the law days, and although the
trial court had granted F Co.’s motion to terminate the appellate stay,
A filed a timely motion for review on July 16, 2018, which continued
the appellate stay, and, therefore, the trial court violated the stay when
it reset the law days during the period of time when A’s motion for
reconsideration of this court’s denial of the relief requested in her motion
for review was still pending; moreover, F Co. could not prevail on its
claim that because this court denied A’s motion for reconsideration,
the stay that had terminated when this court initially denied the relief
requested in A’s motion for review was never revived or brought back
to life, as that claim ignored the plain language of the rule of practice
(§ 71-6) that provides that any stay of proceedings remains in effect
during the period of time for filing a motion for reconsideration and, if
such a motion is filed, until it is denied, and it was clear pursuant to
RAL Management, Inc., that resetting the law days while the stay was
pending was in contravention of the stay, regardless of whether this
court ultimately granted the motion for reconsideration; accordingly,
the motion to dismiss the appeal was denied and the judgment granting
the F Co.’s motion to reset the law days and setting the law days could
not stand, and the motion to dismiss the amended appeal as frivolous
was granted.
Argued March 6—officially released May 14, 2019
Procedural History
Action to foreclose a mortgage on certain real prop-
erty owned by the named defendant, and for other relief,
brought to the Superior Court in the judicial district of
Stamford-Norwalk, where the court, Mintz, J., granted
the motion to intervene as a party defendant filed by
Aleksandra Toczek; thereafter, Wells Fargo Bank, N.A.,
was substituted as the plaintiff; subsequently, the court
rendered a judgment of strict foreclosure, from which
the defendant Aleksandra Toczek appealed to this
court, which dismissed the appeal; thereafter, the court,
Mintz, J., granted the substitute plaintiff’s motion to
open the judgment and to extend the law days and
rendered a judgment of strict foreclosure, from which
the defendant Aleksandra Toczek appealed to this
court, which affirmed the judgment and remanded the
case for the purpose of setting new law days; subse-
quently, the court, Genuario, J., granted the substitute
plaintiff’s motion to reset the law days and set new law
days, and the defendant Aleksandra Toczek appealed
to this court; thereafter, the court, Genuario, J., issued
an order terminating the automatic appellate stay for
any subsequent appeals; subsequently, this court dis-
missed the appeal and granted the motion for review
filed by the defendant Aleksandra Toczek but denied
the relief requested therein; thereafter, the defendant
Aleksandra Toczek filed motions for reconsideration
en banc; subsequently, the court, Genuario, J., granted
the substitute plaintiff’s motion to reset the law days
and set new law days, and the defendant Aleksandra
Toczek appealed to this court; thereafter, this court
denied the defendant Aleksandra Toczek motions for
reconsideration en banc; subsequently, the substitute
plaintiff filed a motion to dismiss the appeal; thereafter,
the court, Genuario, J., denied the motion to open
the judgment and to extend the law days filed by the
defendant Aleksandra Toczek; subsequently, the court,
Genuario, J., denied the motion to reargue filed by
the defendant Aleksandra Toczek, and the defendant
Aleksandra Toczek filed an amended appeal; thereafter,
the substitute plaintiff filed a motion to dismiss the
appeal and the amended appeal. Reversed; further pro-
ceedings; motion to dismiss appeal denied; amended
appeal dismissed.
Aleksandra Toczek, self-represented, the appellant
(intervening defendant).
David M. Bizar, with whom, on the memorandum,
was J. Patrick Kennedy, for the appellee (substitute
plaintiff).
Opinion
BRIGHT, J. In this foreclosure action, the self-repre-
sented defendant, Aleksandra Toczek,1 appeals from
the judgments of the trial court granting the motion of
the plaintiff Wells Fargo Bank, N.A.,2 to reset the law
days and denying her motions to open the judgment of
strict foreclosure and extend the law days and to rear-
gue. On November 2, 2018, the plaintiff filed a motion
to dismiss the appeal as frivolous. On February 14, 2019,
the plaintiff filed a second motion to dismiss this appeal
as moot and the amended appeal as moot and frivolous.
That motion followed this court’s order of February 4,
2019, in which we raised the question of whether the
trial court’s order resetting the law days should be sum-
marily reversed as being in contravention of the appel-
late stay. After considering the parties’ written
submissions on that question and hearing oral argument
on the matter, we conclude that, under binding author-
ity from our Supreme Court, the trial court acted in
contravention of the appellate stay when it reset the
law days. We, therefore, deny the plaintiff’s motion to
dismiss the appeal and reverse the court’s judgment
granting the plaintiff’s motion to reset the law days
and setting the law days. We agree, however, that the
defendant’s amended appeal is frivolous and, therefore,
grant the plaintiff’s motion to dismiss the amended
appeal.
The following procedural history is relevant to our
analysis. In November, 2008, the original plaintiff,
Wachovia Mortgage, FSB, filed this action seeking to
foreclose a mortgage on real property located at 15
Kenilworth Drive West in Stamford. In February, 2014,
the court, Mintz, J., rendered a judgment of strict fore-
closure. The defendant appealed to this court, which
dismissed her appeal for lack of diligence.
The trial court then reentered the judgment of strict
foreclosure in February, 2015. On appeal, this court
affirmed the judgment and remanded the case to the
trial court for the purpose of setting new law days.
Wachovia Bank, FSB v. Toczek, 170 Conn. App. 904,
155 A.3d 830 (2017), cert. denied, 328 Conn. 914, 180
A.3d 961 (2018). The plaintiff filed a motion for order
to reset the law days in accordance with this court’s
remand order, which the court, Genuario, J., granted,
setting the first law day for July 24, 2018.
On May 18, 2018, pursuant to Practice Book § 61-11
(d) and (e), the plaintiff filed a motion to terminate the
automatic appellate stay in § 61-11 (a) prospectively for
any subsequent appeals filed,3 which the court granted.
On July 10, 2018, the defendant filed a third appeal from
the court’s resetting the law days. On July 16, 2018, the
defendant filed a timely motion for review of the order
of the trial court terminating the appellate stay. The
plaintiff thereafter filed a motion to dismiss the third
appeal as frivolous.
On September 6, 2018, a panel of this court granted
the plaintiff’s motion to dismiss the third appeal as
frivolous and granted the defendant’s motion for review
but denied the relief requested therein. On Monday,
September 17, 2018, the defendant filed timely motions
for reconsideration en banc of the September 6, 2018
decisions dismissing the third appeal as frivolous and
denying relief from the termination of the appellate
stay. On October 31, 2018, this court en banc denied
the defendant’s motions for reconsideration of the dis-
missal of the third appeal and the defendant’s motion
for review.
On September 14, 2018, before the period for seeking
reconsideration under Practice Book § 71-5 had
expired, the plaintiff filed in the trial court a motion to
reset the law days following this court’s dismissal of
the third appeal as frivolous. The defendant filed an
objection, arguing that the trial court could not reset
the law days during the pendency of her motions for
reconsideration en banc of the dismissal of the third
appeal and the prospective termination of the appellate
stay. On October 15, 2018, while the defendant’s
motions for reconsideration en banc were still pending
before this court, the trial court granted the plaintiff’s
motion to reset the law days and set the first law day
for December 4, 2018. The defendant filed the present,
and fourth, appeal on October 25, 2018, challenging the
October 15, 2018 order of the trial court resetting the
law days, and, thereafter, the plaintiff filed a motion to
dismiss the appeal as frivolous.
On November 26, 2018, the defendant filed a motion
to open the judgment of strict foreclosure and extend
the law days, which the trial court denied. The defen-
dant filed a motion to reargue, which the court denied.
The defendant amended her fourth appeal to add the
trial court’s denial of her motions to open and to rear-
gue. The plaintiff then filed a motion to dismiss the
original fourth appeal and the amended appeal as moot
and the amended appeal as frivolous.
On February 4, 2019, this court issued the following
order: ‘‘[T]he parties are hereby ordered, sua sponte,
to file memoranda not to exceed ten pages, on or before
February 14, 2019, to give reasons, if any, why the trial
court’s October 15, 2018 order resetting the law days
should not be summarily reversed and the matter
remanded to the trial court to set new law days, as the
trial court’s order was in contravention of the appellate
stay in effect while the defendant Aleksandra Toczek’s
September 17, 2018 timely motion to reconsider the
motion for review of the termination of stay was pend-
ing. See RAL Management, Inc. v. Valley View Associ-
ates, [278 Conn. 672, 682–85, 899 A.2d 586 (2006)];
Practice Book §§ 71-5 and 71-6.’’ Both parties filed the
requested memoranda, and we heard argument on the
issue on March 6, 2019.
We set forth the following legal principles that guide
our review. ‘‘Mootness implicates [the] court’s subject
matter jurisdiction and is thus a threshold matter for
us to resolve. . . . It is a well-settled general rule that
the existence of an actual controversy is an essential
requisite to appellate jurisdiction; it is not the province
of appellate courts to decide moot questions, discon-
nected from the granting of actual relief or from the
determination of which no practical relief can follow.
. . . An actual controversy must exist not only at the
time the appeal is taken, but also throughout the pen-
dency of the appeal. . . . When, during the pendency
of an appeal, events have occurred that preclude an
appellate court from granting any practical relief
through its disposition of the merits, a case has become
moot. . . . Because mootness implicates subject mat-
ter jurisdiction, it presents a question of law over which
our review is plenary.’’ (Citation omitted; internal quota-
tion marks omitted.) New Hartford v. Connecticut
Resources Recovery Authority, 291 Conn. 502, 506–507,
970 A.2d 578 (2009).
‘‘Connecticut follows the title theory of mortgages,
which provides that on the execution of a mortgage on
real property, the mortgagee holds legal title and the
mortgagor holds equitable title to the property. . . .
As the holder of equitable title, also called the equity
of redemption, the mortgagor has the right to redeem
the legal title on the performance of certain conditions
contained within the mortgage instrument. . . . The
equity of redemption gives the mortgagor the right to
redeem the legal title previously conveyed by per-
forming whatever conditions are specified in the mort-
gage, the most important of which is usually the
payment of money. . . .
‘‘Generally, foreclosure means to cut off the equity
of redemption, the equitable owner’s right to redeem
the property. . . . The equity of redemption can be
cut off either by sale or by strict foreclosure. . . . In
Connecticut, strict foreclosure is the rule, foreclosure
by sale the exception.’’ (Citations omitted; internal quo-
tation marks omitted.) Ocwen Federal Bank, FSB v.
Charles, 95 Conn. App. 315, 322–23, 898 A.2d 197, cert.
denied, 279 Conn. 909, 902 A.2d 1069 (2006). ‘‘Under
our law, an action for strict foreclosure is brought by
a mortgagee who, holding legal title, seeks not to
enforce a forfeiture but rather to foreclose an equity
of redemption unless the mortgagor satisfies the debt
on or before his law day. . . . Accordingly, [if] a fore-
closure decree has become absolute by the passing of
the law days, the outstanding rights of redemption have
been cut off and the title has become unconditional in
the plaintiff, with a consequent and accompanying right
to possession. The qualified title which the plaintiff had
previously held under his mortgage had become an
absolute one. . . . In other words, if the defendant’s
equity of redemption was extinguished by the passing
of the law days, we can afford no practical relief by
reviewing the rulings of the trial court now challenged
on appeal, as doing so would have no practical effect
or alter the substantive rights of the parties.’’ (Citations
omitted; internal quotation marks omitted.) Sovereign
Bank v. Licata, 178 Conn. App. 82, 97, 172 A.3d 1263
(2017).
There is no question that the December 4, 2018 law
day set by the court on October 15, 2018, passed without
the defendant redeeming her interest in the property.
Thus, unless the running of the law day was stayed,
title to the property has passed to the plaintiff and
the defendant’s appeal from the judgment granting the
motion to reset the law days is moot. There also is no
question that an appellate stay was in effect on October
15, 2018, when the trial court set the new law day of
December 4, 2018. Although the trial court granted the
plaintiff’s motion to terminate the appellate stay, the
defendant filed a timely motion for review on July 16,
2018, which continued the appellate stay. See Practice
Book § 61-14.4 Following this court’s denial of the relief
requested in that motion, the defendant filed, on Sep-
tember 17, 2018, a timely motion for reconsideration
en banc of the denial of the relief requested in her
motion for review, and, therefore, an appellate stay was
in effect when the trial court reset the law days on
October 15, 2018. See Practice Book § 71-6.5 This court
denied the motion for reconsideration en banc on Octo-
ber 31, 2018, and notice issued that same day. The stay
remained in effect for twenty days, until November 20,
2018. See Practice Book §§ 63-2 and 71-6.
The question, therefore, is whether the trial court’s
order resetting the law days violated the appellate stay.
On the basis of our Supreme Court’s decision in RAL
Management, Inc. v. Valley View Associates, supra, 278
Conn. 672, we conclude that it did. In RAL Management,
Inc., the court addressed whether the opening of a
judgment of strict foreclosure to reset the law days
violated the appellate stay that was in effect. In particu-
lar, the court stated that the threshold issue in the
case was ‘‘whether the trial court properly opened the
judgment while the appellate stay was in effect merely
to change the law days’’ and concluded ‘‘that such an
action was improper . . . .’’ Id., 682. The court rea-
soned that ‘‘the law days are ineffective pending the
stay because to treat them otherwise would carry out
the judgment in violation of the stay. It necessarily
follows, therefore, that if the law days have no legal
effect and necessarily will lapse pending the appeal
. . . any change to those dates pending the appeal simi-
larly has no effect. Indeed, the rules of practice antici-
pate such a circumstance by providing specific
authority for the trial court to set new law days if the
court’s judgment is affirmed on appeal. See Practice
Book § 17-10.’’ (Citation omitted; footnotes omitted.)
RAL Management, Inc. v. Valley View Associates,
supra, 683–84.
The plaintiff argues that RAL Management, Inc., is
inapplicable to this case for two reasons. First, the
plaintiff correctly notes that in RAL Management, Inc.,
this court granted the defendants’ motion for reconsid-
eration and vacated the trial court’s order terminating
the appellate stay. Thus, the law days set by the trial
court in RAL Management, Inc., could not have any
effect because of this court’s order reimposing the stay.
In fact, our Supreme Court in RAL Management, Inc.,
noted that the trial court’s order resetting the law days
‘‘could not be given effect, however, because the Appel-
late Court’s order vacated that order, thus reviving the
stay. Therefore, the trial court’s action must be viewed
as either a legal nullity or an action in contravention
to the appellate stay barring actions to carry out or
to enforce the judgment pending appeal.’’ Id., 684–85.
According to the plaintiff, this language should be read
to mean that, had this court denied the motion for
reconsideration, which happened in the present case,
the action of the trial court resetting the law days would
have been proper.
We disagree with the plaintiff’s reading of RAL Man-
agement, Inc. This court’s decision in that case vacating
the trial court’s termination of the appellate stay pro-
vided an additional reason why the law days set by the
trial court were ineffective. The language used by our
Supreme Court in RAL Management, Inc., makes clear,
however, that the court viewed the resetting of the law
days itself, which occurred well before this court ruled
on the motion for reconsideration, as violative of the
appellate stay. The court reinforced this conclusion in
a footnote that immediately follows the language relied
on by the plaintiff in the present case. Regarding the
actions of the trial court in resetting the law days, the
court stated: ‘‘We surmise that the trial court did not
act knowingly in violation of the stay. The record indi-
cates that the defendants filed their motion for reconsid-
eration of the Appellate Court’s denial of their motion
for review of the trial court’s decision terminating the
stay on the last day permitted for filing that motion. The
plaintiff represented to this court that it had received
a copy of the motion for reconsideration the following
business day, after the trial court had held the hearing
on the motion to open the judgment, the same day the
court granted the motion.’’ Id., 685 n.12. Accordingly,
the trial court violated the stay when it opened the
judgment and reset the law days during the period of
time when the defendants could still seek reconsidera-
tion of this court’s denial of the motion for review. That
is the exact scenario that confronts us in this case.
Second, the plaintiff argues that by stating in RAL
Management, Inc., that this court’s decision vacating
the trial court’s termination of the stay had the effect
of ‘‘reviving’’ the stay, our Supreme Court necessarily
implied that the stay ceased to exist until this court
brought it back to life. Consequently, the plaintiff argues
that because in this case we denied the defendant’s
motion for reconsideration, we never revived or
brought back to life the stay that terminated when we
initially denied the relief requested in the defendant’s
motion for review. We are not persuaded. First, this
argument ignores the plain language of Practice Book
§ 71-6, which provides that any stay of proceedings
remains in effect during the period of time for filing a
motion for reconsideration, and, if such a motion is
filed, until it is denied. See footnote 5 of this opinion.
Second, the plaintiff’s reliance on this one word in the
Supreme Court’s opinion ignores all of the other lan-
guage noted previously in this opinion, which clearly
provides that resetting the law days while the stay was
in effect was in contravention of the stay, regardless
of whether this court ultimately granted the motion for
reconsideration.
We agree that the actions that are prohibited during
the appellate stay are only those that in some way
execute or effectuate the judgment. See Ruiz v. Victory
Properties, LLC, 180 Conn. App. 818, 832–33, 184 A.3d
1254 (2018) (‘‘trial courts in this state continue to have
the power to conduct proceedings and to act on motions
filed during the pendency of an appeal provided they
take no action to enforce or carry out a judgment while
an appellate stay is in effect’’). Consequently, our
Supreme Court repeatedly has held that the law days
set in a judgment of strict foreclosure cannot be given
any legal effect while the appellate stay is in effect. See,
e.g., Farmers & Mechanics Savings Bank v. Sullivan,
216 Conn. 341, 347–48, 579 A.2d 1054 (1990), and cases
cited therein. In RAL Management, Inc., the court
extended this principle to resetting law days while the
appellate stay is in effect because doing so is an action
to carry out or to enforce the judgment pending appeal.
RAL Management, Inc., v. Valley View Associates,
supra, 278 Conn. 685. Applying this holding to the facts
of this case, we conclude that the trial court’s October
15, 2018 order resetting the law days was in contraven-
tion of the appellate stay then in place. Consequently,
the judgment of the trial court is reversed. Furthermore,
because we conclude that the trial court erred in reset-
ting the law days while the appellate stay was in effect,
we also deny the plaintiff’s motion to dismiss this appeal
but grant the motion to dismiss the amended appeal as
frivolous. The case is remanded to the trial court for
the setting of new law days now that (1) the defendant’s
third appeal has been finally disposed of, and (2) we
have denied the defendant’s motion for reconsideration
en banc of our denial of relief on her motion to review
the trial court’s order prospectively terminating any
future appellate stays in this matter.
The motion to dismiss the appeal is denied, the
motion to dismiss the amended appeal as frivolous is
granted and the judgment granting the plaintiff’s motion
to set new law days is reversed and the case is remanded
for the purpose of setting new law days.
In this opinion the other judges concurred.
1
The complaint named Pawel Toczek and National City Bank as the
defendants. After Pawel Toczek quitclaimed his interest in the property to
her, Aleksandra Toczek filed a motion to intervene, which the court granted.
We refer in this opinion to Aleksandra Toczek as the defendant.
2
Wachovia Mortgage, FSB (Wachovia), commenced this foreclosure
action. In June, 2013, the court granted Wachovia’s motion to substitute
Wells Fargo Bank, N.A. (Wells Fargo), as the plaintiff after Wachovia merged
into Wells Fargo. We refer in this opinion to Wells Fargo as the plaintiff.
3
‘‘It is axiomatic that, with limited exceptions, an appellate stay of execu-
tion arises from the time a judgment is rendered until the time to file an
appeal has expired. Practice Book § 61-11 (a). If an appeal is filed, any
appellate stay of execution in place during the pendency of the appeal period
continues until there is a final disposition of the appeal or the stay is
terminated. Practice Book § 61-11 (a) and (e).’’ Sovereign Bank v. Licata,
178 Conn. App. 82, 99, 172 A.3d 1263 (2017).
4
Practice Book § 61-14 provides in relevant part: ‘‘The sole remedy of any
party desiring the court to review an order concerning a stay of execution
shall be by motion for review under Section 66-6. Execution of an order of
the court terminating a stay of execution shall be stayed for ten days from
the issuance of notice of the order, and if a motion for review is filed within
that period, the order shall be stayed pending decision of the motion, unless
the court having appellate jurisdiction rules otherwise. . . .’’
5
The plaintiff argues that pursuant to Practice Book § 61-14, any appellate
stay ended when the court denied the defendant’s motion for review.
According to the plaintiff, because § 61-14 provides that a motion for review
is a party’s sole remedy from a trial court’s decision terminating an appellate
stay, a motion for reconsideration pursuant to Practice Book § 71-5, does
not extend the stay. The plaintiff’s argument is without merit. Practice Book
§ 71-6 expressly provides in relevant part that ‘‘[u]nless the chief justice or
chief judge shall otherwise direct, any stay of proceedings which was in
effect during the pendency of the appeal shall continue until the time for
filing a motion for reconsideration has expired, and, if a motion is filed,
until twenty days after its disposition, and, if it is granted, until the appeal
is finally determined. . . .’’ (Emphasis added.) Because § 71-6 applies to
any stay of proceedings, it necessarily applies to a stay under § 61-14.