156 Conn.App. 36
Conn. App. Ct.2015Background
- Deutsche Bank filed a strict foreclosure against Melissa J. McKeith for property at 29 Bonnie Circle, Groton, in February 2010.
- A state marshal reported inability to locate McKeith at the property and that the property appeared vacant. Plaintiff’s counsel filed an application for an order of notice with a supporting affidavit describing searches for McKeith.
- The court granted an order of notice under Conn. Gen. Stat. § 52-68 requiring publication; the plaintiff complied and later obtained a finding that no further notice was required.
- Default was entered for McKeith; the court rendered a judgment of strict foreclosure on July 30, 2012; title vested in plaintiff on September 21, 2012.
- More than one year after title became absolute, McKeith filed a motion to open, asserting lack of personal jurisdiction (claiming she had lived at the property throughout) and attaching an unsigned, unsworn affidavit.
- The trial court credited the marshal’s return and plaintiff’s affidavit of efforts to locate McKeith, found service by order of notice sufficient under § 52-68, and dismissed the motion to open; the Appellate Court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the judgment of strict foreclosure could be opened after title became absolute on jurisdictional grounds | Service by publication pursuant to the court’s order under § 52-68 was proper; the court had personal jurisdiction when it entered judgment | Judgment is void for lack of personal jurisdiction because plaintiff falsely claimed McKeith was unreachable and service was improper | Court held jurisdiction existed; motion to open dismissed |
| Evidentiary sufficiency of defendant’s supporting affidavit | N/A — relied on marshal’s return and plaintiff’s affidavits | Defendant relied on an unsigned, unsworn affidavit claiming residence at the property | Unsigned, unsworn affidavit has no evidentiary value; court properly disregarded it |
| Whether § 49-15(a) relief (opening after law day) applied | N/A — plaintiff argued title was already absolute >1 year, precluding § 49-15 relief | Defendant sought to open judgment despite law day having passed | § 49-15 does not apply because title became absolute; only jurisdictional defect could open judgment |
| Whether trial court erred by not advising self-represented defendant about affidavit or inviting sworn testimony | N/A — plaintiff did not concede any duty to advise or solicit testimony | Defendant argued court should have informed her that affidavit was unsworn or permitted her to testify under oath at the hearing | Court did not err; argument not raised below and appellant bears burden to show reversible error |
Key Cases Cited
- New Milford Savings Bank v. Jajer, 244 Conn. 251 (Conn. 1998) (statutory bar on opening foreclosure judgments after failure to redeem does not preclude attacks for lack of jurisdiction)
- Argent Mortgage Co., LLC v. Huertas, 288 Conn. 568 (Conn. 2008) (judgment of strict foreclosure ordinarily cannot be opened after law day, except for lack of jurisdiction)
- Highgate Condominium Assn., Inc. v. Miller, 129 Conn. App. 429 (Conn. App. 2011) (post-law-day opening permitted only on finding the court lacked jurisdiction over person or case when judgment entered)
- Viola v. O’Dell, 108 Conn. App. 760 (Conn. App. 2008) (unsigned, unsworn affidavit is of no evidentiary value)