186 Conn.App. 743
Conn. App. Ct.2018Background
- Plaintiff (Fannie Mae) acquired title to 12 Casner Rd., East Haddam via strict foreclosure (Liberty Bank → plaintiff) and then brought a summary process action to evict Paul and Luce Buhl.
- Complaint alleged a quitclaim deed from Liberty Bank to plaintiff was recorded on September 28, 2016.
- Defendants denied material allegations, asserted special defenses including that the deed’s acknowledgment was undated and that they had recorded a lis pendens.
- Three-day bench trial was held; court entered judgment for plaintiff against Paul Buhl and defaulted Luce Buhl for failure to appear.
- Defendants appealed, arguing: they had commenced an action under Conn. Gen. Stat. § 47-36aa; the deed was invalid for notarial/dating defects; plaintiff’s counsel gave improper unsworn testimony; default against Luce was improper.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did defendants "commence an action" under § 47-36aa(a) to preserve a challenge to the deed? | They did not; commencement requires formal process under § 52-45a. | Their denial and special defense amounted to commencing an action under § 47-36aa. | Held: No — defendants did not commence a separate action; special defense is not an independent action and they invoked no judicial relief. |
| Is the quitclaim deed invalid because its acknowledgment and execution date are undated? | Deed valid: § 47-36aa cures defective acknowledgments not timely challenged; § 47-36aa(b) treats omitted execution date as an insubstantial defect. | Undated acknowledgment and undated deed void the instrument and defeat plaintiff’s title. | Held: Deed valid — defendants didn’t timely commence a § 47-36aa action, and absence of execution date is an insubstantial defect under § 47-36aa(b). |
| Did the court abuse its discretion by permitting plaintiff’s counsel to state unsworn facts about the deed’s execution? | No — court did not rely on counsel’s unsworn statements; deed was in evidence; recording date (not execution date) controls. | Counsel’s unsworn statements amounted to inadmissible testimony/hearsay and prejudiced defendants. | Held: No prejudice shown; no reliance by court; claim fails (also unpreserved). |
| Was it an abuse of discretion to enter default against Luce Buhl for failing to appear at trial? | No — she failed to appear for all trial days and offered no evidence of a proper excuse. | Default improper because her position was identical to Paul’s and there were no live facts to try. | Held: No — entry of default was within the court’s discretion. |
Key Cases Cited
- Commissioner of Emergency Services & Public Protection v. Freedom of Information Commission, 330 Conn. 372 (statutory interpretation principles).
- ARS Investors II 2012-1 HBV, LLC v. Crystal, LLC, 324 Conn. 680 (§ 47-36aa(b) treats omitted/incorrect execution date as insubstantial).
- Sovereign Bank v. Harrison, 184 Conn. App. 436 (special defense operates as shield, not an independent cause of action).
- Chase Home Finance, LLC v. Morneau, 156 Conn. App. 101 (§ 47-36aa(a) validates defective conveyances not timely challenged).
- Constantine v. Schneider, 49 Conn. App. 378 (unsworn statements of counsel are not evidence).
- Housing Authority v. Weitz, 163 Conn. App. 778 (default for failure to appear is within trial court’s discretion).