151 Conn.App. 790
Conn. App. Ct.2014Background
- Bank of America filed a July 2007 foreclosure action against Debora M. Thomas on 57 Fawn Hill Rd., alleging default on a $275,000 note and a recorded mortgage.
- Defendant did not plead; default entered August 8, 2007; foreclosure by sale was issued August 13, 2007 with debt of $276,220.26 and FMV of $455,000.
- After several extensions and bankruptcy filings, the court converted the action to strict foreclosure on September 10, 2012, with law days set for September 2012.
- Debt later updated to about $455,539.41 and FMV reduced to $370,000; the sale was never redeemed by Thomas.
- Thomas filed two motions to open the judgment (May 30, 2013; June 21, 2013); the court denied both and the matter was appealed; judgments were affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Due process: prehearing remark biased | Bank argues no prejudice and claim not preserved. | Thomas argues the remark showed Judge prejudged the motion. | No due process violation; not preserved; Golding not satisfied. |
| Fraud argument not in writing allowed at hearing | Bank contends the consent order argument was not properly raised and should be reviewed. | Thomas contends the fraud ground should be heard despite lack of written motion. | Claim abandoned; not adequately briefed; not reviewed. |
| Second motion to open based on new fraud evidence | Bank asserts court properly declined to open given lack of clear proof of fraud and diligence. | Thomas asserts new evidence of plaintiff fraud warrants opening the judgment. | No abuse of discretion; evidence insufficient; judgment affirmed. |
Key Cases Cited
- U.S. Bank Nat’l Assn. v. Iaquessa, 132 Conn. App. 812 (2012) (preservation and due process standards in reviewing trial court decisions)
- State v. Golding, 213 Conn. 233 (1989) (unpreserved constitutional error review for fundamental rights)
- State v. Fagan, 280 Conn. 69 (2006) (Golding framework and plain error considerations)
- Kenworthy v. Kenworthy, 180 Conn. 129 (1980) (fraud defenses and equity in setting aside judgments)
- Bruno v. Bruno, 146 Conn. App. 214 (2013) (probable cause of fraud required for open judgment, not mere suspicion)