Opinion
No. CV03-0350683 S
November 18, 2004
MEMORANDUM OF DECISION
The defendant moves to open a judgment of strict foreclosure on the grounds that a miscommunication within her attorney's firm caused her to miss the law day and that she has a significant amount of equity in the home. A judgment of strict foreclosure may not be opened after title has become absolute in an encumbrancer and the court will not exercise its equitable authority to open a judgment in a foreclosure action when the defendant's own conduct caused her to miss the law day through inattention or negligence. The motion is denied.
The plaintiff, Wells Fargo Bank Minnesota, filed a one-count complaint on November 12, 2003, seeking to foreclose a mortgage from the defendant, Darlene I. Lemon, on the premises known as 4 Willow Street, Danbury, Connecticut. The court, Moraghan, J., ordered a judgment of strict foreclosure on February 17, 2004, with a law day of May 18, 2004. The plaintiff, on May 25, 2004, filed a foreclosure certificate with the town clerk certifying that the title to the subject property had vested in the plaintiff on May 19, 2004.
Before the court is the defendant's motion to open, filed on June 14, 2004 along with supporting affidavits, on the grounds that a mistake in her attorney's law firm permitted the law day to pass without her knowledge and that a foreclosure by sale is appropriate to protect her right to redeem the equity in the property. The plaintiff filed an objection to the motions when the parties appeared on August 23, 2004.
On June 14, 2004, the defendant also filed a motion for protective order, motion for foreclosure by sale, and motion to open default.
The attorney for the defendant argues that the court should open the judgment because his client never received actual notice of the law day. Another attorney in his firm originally represented the defendant, he argues, and after assuming control of the case, paperwork regarding the matter continued to be delivered to the original attorney. In addition, the attorney explains that his law office recently changed locations, which resulted in staff errors with respect to file management and mail processing during the transition. The court should open judgment, the defendant asserts, based on the amount of equity in the home and the affirmation that she never received the notice of the judgment of strict foreclosure in time to comply with the schedule of law days.
The plaintiff objects on the ground that the court is without jurisdiction to entertain the defendant's motions after title in the property has already vested in the plaintiff
The opening of judgments of strict foreclosure is governed by General Statutes § 49-15, which provides in subsection (a): "Any judgment foreclosing the title to real estate by strict foreclosure may, at the discretion of the court rendering the same, upon the written motion of any person having an interest therein, and for cause shown, be opened and modified, notwithstanding the limitation imposed by section 52-212a, upon such terms as to costs as the court deems reasonable; but no such judgment shall be opened after the title has become absolute in any encumbrancer." (Emphasis added.)
This section establishes the time limit for reopening or setting aside civil judgments.
The final modifying clause of § 49-15(a) is construed in a strict, literal manner. "Both the Supreme Court and [the appellate] court have ruled that, under this statute, a judgment of foreclosure cannot be opened after title has become absolute in any encumbrancer." Merry-Go-Round Enterprises, Inc. v. Molnar, 10 Conn.App. 160, 162 (1987).
"When a motion to open a judgment of strict foreclosure has not been filed within the [twenty-day limit under Practice Book § 63-1 for an] appeal . . . a law day may pass and if the defendant fails to redeem, the equity of redemption is extinguished and title to the property vests absolutely in the plaintiff, whether or not a hearing on a motion to open is pending." Farmers Mechanics Bank v. Kneller, 40 Conn.App. 115, 124 (1996). In Kneller, the defendant failed to obtain a stay because he did not file his motion to open until after the expiration of the time to appeal from the initial foreclosure judgment. "Because the trial court did not hear [the motion] prior to the . . . law day, title to the property vested absolutely in the plaintiff on [the following day] pursuant to General Statutes § 49-15." Id. Thus, "[w]hen a motion to open . . . [is] filed after title has vested in an encumbrancer, no practical relief can be granted . . . [p]rovided that this vesting has occurred pursuant to an authorized exercise of jurisdiction by the trial court . . ." (Citation omitted; internal quotation marks omitted.) First National Bank of Chicago v. Luecken, 66 Conn.App. 606, 612 (2001), cert. denied, 259 Conn. 915 (2002).
Practice Book § 63-1(a) provides in relevant part: "Unless 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."
The defendant, however, asks the court to use its equitable powers to open judgment because of the inadequate communications within her attorney's firm.
"[A] mortgage foreclosure action is an equitable proceeding, [therefore] the trial court may consider all relevant circumstances to ensure that complete justice is done." Reynolds v. Ramos, 188 Conn. 316, 320 (1982). "Courts of equity may grant relief from the operation of a judgment when to enforce it is against conscience, and where the [movant] 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 [the movant was] without fault on his [or her own part." (Internal quotation marks omitted.) Cavallo v. Derby Savings Bank, 188 Conn. 281, 284 (1982). "Fraud, accident, mistake, and surprise are recognized grounds for equitable interference, when one, without his own negligence, has lost an opportunity to present a meritorious defense to an action, and the enforcement of the judgment so obtained against him would be against equity and good conscience, and there is no adequate remedy at law." (Internal quotation marks omitted.) Hoey v. Investors' Mortgage Guaranty Co., 118 Conn. 226, 230-31 (1934).
A court in equity must nonetheless make a distinction between mistake and negligence. "It is a well-established principle that courts of equity will not relieve against the operation of judgments rendered through the negligence or inattention of the party claiming to be aggrieved or his attorney." Jarvis v. Martin, 77 Conn. 19, 21 (1904). "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 counsel, unless the mistake is unmixed with negligence, or . . . unconnected with any negligence or inattention on the part of the judgment debtor." (Internal quotation marks omitted.) Hoey v. Investors' Mortgage Guaranty Co., supra, 118 Conn. 231.
Conduct mixed with negligence generally disqualifies an action from equitable interference. Although, in the present case, the conduct in question allegedly resulted from circumstances in the law firm of the defendant's attorneys and not the defendant herself, the cited appellate authority indicates that negligence, whether it ensued from the actual party or her attorney, prohibits the order of an equitable remedy. The miscommunication within the law firm connected the matter to negligence or inattention on the part of the judgment debtor and the court will not use its equitable powers to open the judgment of strict foreclosure.
For the reasons provided herein, the court denies the defendant's motion to open.
Moraghan, J.T.R.