187 Conn. App. 523
Conn. App. Ct.2018Background
- People's United Bank filed to foreclose a mortgage on Kevin Purcell's property at 180 Palm Street; state marshal returned service by leaving the writ and complaint at that address (abode service).
- Purcell was defaulted for failure to appear; judgment of foreclosure by sale entered October 31, 2016.
- Purcell moved to open the judgment and to dismiss for lack of personal jurisdiction, claiming he was not served because he had not lived at 180 Palm Street for 14 years and resided at 86 Plainfield Street.
- An evidentiary hearing was held; both the marshal and Purcell testified. The marshal corroborated her return, including a neighbor's statement that Purcell lived at 180 Palm Street; the plaintiff also produced a letter from Purcell bearing that address.
- The trial court found the marshal credible and Purcell’s testimony inconsistent and incredible, denied the motion to open and to dismiss, and reset the sale date. Purcell appealed; the appellate court affirms.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether court had personal jurisdiction via abode service | Service at 180 Palm St. as shown in marshal's return and corroborating evidence established proper service | Purcell claimed he did not reside at 180 Palm St.; thus service was insufficient and court lacked jurisdiction | Affirmed: marshal's return and testimony were credited; defendant failed to rebut presumption of valid abode service |
| Whether trial court abused its discretion in denying motion to open judgment | Court properly weighed credibility and applied law; denial appropriate | Denial was erroneous because service was invalid, so judgment should be opened/dismissed | Affirmed: no abuse of discretion; factual findings not clearly erroneous |
Key Cases Cited
- GMAC Mortgage, LLC v. Ford, 175 A.3d 582 (Conn. App. 2017) (standard of review for motions to open judgment is abuse of discretion)
- Knutson Mortgage Corp. v. Bernier, 789 A.2d 528 (Conn. App. 2002) (defendant bears burden to disprove abode service when return presumes proper service)
- Tax Collector v. Stettinger, 832 A.2d 75 (Conn. App. 2003) (usual place of abode is question of fact; return is prima facie evidence but may be rebutted)
- Gianetti v. Norwalk Hospital, 43 A.3d 567 (Conn. 2012) (appellate review of factual findings is under clearly erroneous standard)