U.S. Bank, National Assn. v. Fitzpatrick ( 2021 )

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U.S. BANK, NATIONAL ASSOCIATION, TRUSTEE v.
CHRISTOPHER M. FITZPATRICK ET AL.
(AC 44143)
Bright, C. J., and Cradle and Bishop, Js.
Syllabus
The plaintiff, as trustee, sought to foreclose a mortgage on certain real
property owned by the defendant F. The trial court granted the plaintiff’s
motion for summary judgment as to liability only and rendered a judg-
ment of foreclosure by sale, from which F appealed to this court, which
affirmed the judgment of the trial court and remanded the case to that
court to set a new sale date. The trial court ordered a new sale date
and waived newspaper advertisements. The committee filed a motion
to approve the sale and the trial court rendered judgment approving
the sale and deed, from which F appealed to this court. Thereafter, the
court granted the plaintiff’s motion to terminate the appellate stay and,
although F objected to the motion, he did not file a motion for review
of the trial court’s order granting that motion. Held that F’s appeal was
moot and, accordingly, the appeal was dismissed; because F failed to
seek review of the court’s order terminating the appellate stay, the
judicial sale became final, and title vested in the plaintiff and F’s right
of redemption was extinguished.
Argued May 11—officially released August 3, 2021
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 Fairfield, where the court, Truglia, J., granted the
plaintiff’s motion for summary judgment as to liability;
thereafter, the court, Hon. Alfred J. Jennings, Jr., judge
trial referee, rendered judgment of foreclosure by sale,
from which the named defendant appealed to this court,
DiPentima, C. J., and Alvord and Eveleigh, Js., which
affirmed the trial court’s judgment and remanded the
case for the purpose of setting a new sale date; subse-
quently, the court, Spader, J., ordered foreclosure by
sale and waived newspaper advertisements; thereafter,
the court, Spader, J., granted the plaintiff’s motion to
approve the sale and committee deed, from which the
named defendant appealed to this court; subsequently,
the court, Spader, J., granted the plaintiff’s motion to
terminate the appellate stay. Appeal dismissed.
Ryan P. Driscoll, for the appellant (named defen-
dant).
Jeffrey M. Knickerbocker, for the appellee (plaintiff).
Opinion
PER CURIAM. In this foreclosure action, the defen-
dant Christopher M. Fitzpatrick1 appeals from the judg-
ment of the trial court approving the sale of the mort-
gaged property, on the motion of the committee of
sale (committee), following the court’s rendering of a
judgment of foreclosure by sale in favor of the plaintiff
mortgagee, U.S. Bank, National Association, as Trustee
for MASTR 2007-2. On appeal, the defendant argues
that his objection to the motion for approval of commit-
tee sale, which was based on a lack of newspaper adver-
tisements, should have been sustained. The plaintiff
argues that this appeal is moot because the defendant
failed to seek review of the court’s termination of the
appellate stay and, thus, title to the subject property
has vested in the plaintiff. We agree with the plaintiff
that this court can provide no practical relief on appeal,
and, therefore, we dismiss the appeal as moot.
The following facts and procedural history are rele-
vant to this appeal. In May, 2016, the plaintiff com-
menced this action against the defendant to foreclose
a mortgage on property he owned in Stratford. The
plaintiff filed a motion for summary judgment as to
liability on December 22, 2017, which the court subse-
quently granted. The court then rendered a judgment
of foreclosure by sale on March 22, 2018, from which
the defendant appealed to this court. This court
affirmed the foreclosure judgment and remanded the
case for the purpose of setting a new sale date. U.S.
Bank, National Assn. v. Fitzpatrick, 190 Conn. App.
773, 794, 212 A.3d 732, cert. denied, 333 Conn. 916, 217
A.3d 1 (2019).
On December 30, 2019, in accordance with this
court’s opinion, the trial court ordered a foreclosure
by sale with a sale date of February 22, 2020, and waived
newspaper advertisements. The defendant did not
object to that order.2 The court determined that the fair
market value of the property was $610,000, which was
confirmed by an appraisal. The committee received only
one bid, from the plaintiff, to purchase the property for
$433,500. On February 24, 2020, the committee filed a
motion to approve the sale. The defendant objected to
that motion, arguing that the lack of newspaper adver-
tisements had prejudiced him. On June 3, 2020, the
court entered an order overruling the defendant’s objec-
tion and rendered judgment approving the sale and
deed, from which the defendant appealed to this court.
Subsequently, the plaintiff moved to terminate the
appellate stay, arguing that the appeal was without
merit. On September 16, 2020, the court granted the
plaintiff’s motion to terminate the appellate stay,
explaining that ‘‘[t]he court believes that it is unlikely
that the defendant will prevail on appeal.’’3 The defen-
dant objected to the plaintiff’s motion to terminate the
appellate stay but failed to seek review by this court of
the trial court’s order granting the motion. This appeal
followed.
The defendant’s principal argument is that the court
erred by granting the committee’s motion to approve
the sale without any newspaper advertisements. This
issue is moot. Because title has vested in the plaintiff
and the defendant’s rights in the property have thus
been terminated, this court can provide no practical
relief to the defendant.
The question of mootness implicates our subject mat-
ter jurisdiction. ‘‘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.’’ (Internal quotation marks omit-
ted.) Ocwen Federal Bank, FSB v. Charles, 95 Conn.
App. 315, 325, 898 A.2d 197, cert. denied, 279 Conn. 909,
902 A.2d 1069 (2006). ‘‘When, during the pendency of an
appeal, events have occurred that preclude an appellate
court from granting any practical relief through its dis-
position of the merits, a case has become moot. . . .
Mootness implicates this court’s subject matter jurisdic-
tion, raising a question of law over which we exercise
plenary review.’’ (Citation omitted; internal quotation
marks omitted.) RAL Management, Inc. v. Valley View
Associates, 278 Conn. 672, 679–80, 899 A.2d 586 (2006).
A brief review of the basic legal principles regarding
mortgages and foreclosures by sale informs our conclu-
sion. ‘‘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
mortgagor continues to be regarded as the owner of
the property during the term of the mortgage. . . . 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 pay-
ment of money. . . . Generally, foreclosure means to
cut off the equity of redemption, the equitable owner’s
right to redeem the property.’’ (Citations omitted; inter-
nal quotation marks omitted.) Ocwen Federal Bank,
FSB v. Charles, supra, 95 Conn. App. 322–23. ‘‘Simply
put, once title has vested absolutely in the mortgagee,
the mortgagor’s interest in the property is extinguished
and cannot be revived by a reviewing court.’’ Id., 324.
‘‘In a foreclosure by sale, a mortgagor may exercise
his rights of redemption until such time as the judicial
authority approves the foreclosure sale. The [judicial]
sale is not absolute until confirmed. The order of confir-
mation gives the judicial sanction of the court, and
when made it relates back to the time of the sale . . . .
Generally, once a court has approved the foreclosure
sale and the applicable appeal period has elapsed, the
mortgagor’s right of redemption is extinguished and the
court’s jurisdiction to modify that judgment ends. . . .
Accordingly, after the sale is approved and the relevant
appeals periods have expired, any action by the mort-
gagor to redeem should be dismissed as moot.’’ (Cita-
tions omitted; emphasis altered; internal quotation
marks omitted.) Wells Fargo Bank of Minnesota, N.A.
v. Morgan, 98 Conn. App. 72, 79–80, 909 A.2d 526 (2006).
The defendant filed a timely appeal of the court’s
order granting the motion to approve the sale, but he
failed to file a motion for review of the order terminating
the appellate stay. ‘‘Practice Book § 61-14 provides that
the sole remedy for review of a court’s granting of a
motion to terminate a stay of execution is to file a
motion for review.4 Under this section, the court’s order
granting the motion to terminate the stay is stayed for
ten days from the issuance of the order to permit a
party to file a motion for review. The [defendant], there-
fore, had ten days from the court’s . . . ruling in which
to file a motion for review.’’ (Footnote in original.)
Lucas v. Deutsche Bank National Trust Co., 103 Conn.
App. 762, 767–68, 931 A.2d 378, cert. denied, 284 Conn.
934, 935 A.2d 151 (2007).
Because the defendant failed to file a motion for
review, the judicial sale became final. The defendant’s
right of redemption was extinguished as soon as the
ten day period expired.5 Thus, title passed to the plaintiff
on June 5, 2020, when the committee filed the deed of
sale with the court. Accordingly, this appeal is moot,
and we therefore do not reach the defendant’s argu-
ments on their merits.
The appeal is dismissed.
1
In its complaint, the plaintiff also named the Department of Revenue
Services and the Internal Revenue Service as defendants, but these govern-
mental entities are not participating in this appeal. We, therefore, refer in
this opinion to Christopher M. Fitzpatrick as the defendant.
2
The listing was posted on the Judicial Branch website. The court later
explained in its memorandum of decision on the plaintiff’s motion to termi-
nate the appellate stay that ‘‘the defendant did not object to the court’s
order not requiring newspaper advertising when the order was issued and, in
reality, newspaper advertisements are not the place where serious potential
foreclosure purchasers learn of foreclosure sales. The Judicial Branch has
developed a ‘foreclosure listings’ website where all foreclosure sales are
advertised. This property was so listed.’’ (Emphasis in original.)
3
The plaintiff first filed a motion to terminate the stay on July 6, 2020,
pursuant to Practice Book § 61-11 (g), which the court denied without
prejudice. The plaintiff then filed another motion to terminate the stay
pursuant to Practice Book § 61-11 (d) and (e), which the court granted after
a hearing.
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. . . .’ ’’ Lucas v.
Deutsche Bank National Trust Co., 103 Conn. App. 762, 767 n.7, 931 A.2d
378, cert. denied, 284 Conn. 934, 935 A.2d 151 (2007).
5
Our Supreme Court recently opined that in ‘‘rare and exceptional cases’’
equitable claims may still be made after title has passed in a foreclosure
matter. U.S. Bank National Assn. v. Rothermel, Conn. , A.3d
(2021). We do not view the holding in Rothermel as applicable to the factual
and procedural history of this case as the underlying circumstances are
neither rare nor exceptional.