People's United Bank v. Bok
70 A.3d 1074
Conn. App. Ct.2013Background
- Plaintiff, People’s United Bank, foreclosed a mortgage on 150 Arbor Drive, Fairfield, after alleging borrower default on a $400,000 loan.
- Defendants Keith Bok and Randee Ganser-Bok appeared through counsel in March 2011; plaintiff demanded disclosure of defense and sought default for failure to plead.
- Defendants filed a disclosure of defense May 23, 2011 listing several challenges to the debt and notice of acceleration, which the court ultimately denied as grounds for default.
- On June 29, 2011, plaintiff moved for default for failure to plead; defendants sought to revise the complaint on July 8, 2011 and plaintiff revised the complaint on July 12, 2011.
- Clerk of court entered default for failure to plead on July 14, 2011, despite the defendants’ July 8 responsive pleading; plaintiff later moved for judgment of strict fore-closure and the hearing occurred October 11, 2011.
- Defendants objected to the default as erroneously entered, arguing the responsive pleading cured the defect; court granted strict foreclosure on the same day, and later found moot the objection.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the clerk’s default for failure to plead was proper | Bok predicated default on untimely pleadings; failure to plead justifies default. | Defendants filed a request to revise July 8, 2011; default was entered improperly after responsive pleading. | Default improper; judgment reversed for lack of proper default. |
| Whether the proper remedy to challenge a defective default is a § 17-42 motion | Set aside default not required; timely objection insufficient. | Objection to judgment functionally equivalent to motion to set aside default. | Objection treated as motion to set aside; court abused discretion by not vacating default. |
| Whether the defective default prevented a valid judgment of strict foreclosure | Despite defect, plaintiff could obtain judgment if liability was established. | Default precluded liability determinations; if default improper, foreclosure judgment cannot stand. | Judgment of strict foreclosure cannot stand on an erroneous default. |
| Whether defendants preserved their challenge to the default despite not appearing at the hearing | Failure to appear waived challenge to default. | Defendants preserved the claim by raising it in an objection and subsequent ruling acknowledged error. | Defendants preserved their challenge; court acknowledged error and reviewed merits. |
| Whether the court properly treated the record showing a July 8 responsive pleading | Record shows defendants’ delay; default valid until set aside. | Responsive pleading cured the defect; clerk’s entry was erroneous. | Record shows defect; default must be set aside; remand warranted. |
Key Cases Cited
- Connecticut Light & Power Co. v. St. John, 80 Conn. App. 767 (2004) (default may be set aside when improper upon proper showing)
- Deutsche Bank National Trust Co. v. Bertrand, 140 Conn. App. 646 (2013) (court may set aside default under 52-119/10-18 for improper default)
- Connecticut Light & Power Co. v. St. John (second mention), 80 Conn. App. 769 (2004) (default can be opened if improper when entered after response)
- Webster Trust v. Mardie Lane Homes, LLC, 93 Conn. App. 401 (2006) (abuse of discretion standard in foreclosure judgments)
- Gabriele v. Deutsche Bank Nat’l Trust Co., 141 Conn. App. 547 (2013) (reversal when court improperly granted default for failure to plead)