227 Conn.App. 94
Conn. App. Ct.2024Background
- The Bank of New York Mellon (plaintiff) sought to foreclose a mortgage on property owned by Wade H. Horsey II and Jacquelyn Costa Horsey (defendants) after default.
- The trial court entered judgment of strict foreclosure, affirmed on appeal, and repeatedly reset law days as defendants filed several motions to open, dismiss, or void the judgment.
- Defendants filed, and courts denied, three motions (to open, to dismiss for lack of standing, and for void judgment) after the initial foreclosure judgment.
- The defendants' latest motion to set aside (based on a recent case allegedly affecting standing) was filed without the required affidavit for good cause after prior denied motions.
- While awaiting the court's ruling on this last motion, law days passed and title vested in the mortgagee. The trial court denied the motion, and defendants appealed again.
- The appellate court considered whether this appeal was moot because title had vested and if an automatic stay applied given the serial filings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Do serially filed motions to open (or similar) prevent law days from passing under Practice Book § 61-11(g) if not accompanied by affidavit? | Plaintiff argued no automatic stay after at least two denied motions without affidavit; law days passed, title vested | Defendants argued prior motions were not the type to trigger § 61-11(g) so appellate stay should remain in effect | Court held serial motions to open (regardless of title) count; no stay arose; law days passed; appeal moot |
| Did the defendants' December 28, 2022 motion comply with requirements to trigger automatic stay? | No, because no affidavit certifying good cause after latest motion | Claimed not necessary since past motions didn’t trigger § 61-11(g) | Court held affidavit required; absent it, no stay arose |
| Does the passage of law days and vesting of title render defendants’ appeal moot? | Yes | No, asserting appellate review still possible | Court held once law days pass and title vests, appeal is moot unless rare circumstances apply |
| Should creatively labeled motions evade Practice Book § 61-11(g)? | No; substance, not label, controls | Yes, labels matter, not substance | Court held substance controls; serial attempts to vacate foreclosure are subject to rule |
Key Cases Cited
- U.S. Bank Nat’l Ass’n v. Rothermel, 339 Conn. 366 (passage of law days vests title and extinguishes right to redeem)
- Connecticut Nat’l Mortgage Co. v. Knudsen, 323 Conn. 684 (appeal moot when law days pass and title vests)
- Barclays Bank of New York v. Ivler, 20 Conn. App. 163 (appellate courts lack power to disturb absolute title after law days pass)
- Citigroup Global Markets Realty Corp. v. Christiansen, 163 Conn. App. 635 (serial motions and appellate stays)
- Bank of New York Mellon v. Horsey, 182 Conn. App. 417 (earlier appeal in underlying foreclosure case)