TD Banknorth, N.A. v. White Water Mountain Resorts of Connecticut, Inc.
133 Conn. App. 536
| Conn. App. Ct. | 2012Background
- White Water Mountain Resorts executed a 2003 promissory note and first mortgage in favor of TD Banknorth, with Leavitt guaranteeing the debt and securing a residential mortgage on his property.
- A 2004 note for $430,000 was issued, secured by a second mortgage on Powder Ridge, with Leavitt providing a second guaranty.
- TD Banknorth filed a three-count foreclosure action in 2005; by 2006 a default for failure to plead led to judgments of foreclosure by sale on the first two mortgages and a sale date in 2007.
- An involuntary bankruptcy stayed the action in 2007; after relief, the bank moved to open the 2008 judgment, leading to a new foreclosure-by-sale judgment for Powder Ridge in 2008 with sale approval in July 2008.
- TD Banknorth (later Middlefield Holdings, LLC) obtained the Powder Ridge sale, and separately obtained a 2009 judgment of strict foreclosure on the residential mortgage.
- Leavitt moved to open the 2009 residential foreclosure judgment in 2009 and again in 2010; the court denied, and in 2010 it entered a new strict foreclosure against the residential property.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the motion to open was properly denied as untimely or limited to the 2008 foreclosure by sale | Leavitt's motion targeted the 2008 sale judgment; timing barred opening. | Motion to open should be read to encompass the 2009 strict foreclosure as well. | The court correctly treated the motion as addressing only the 2008 foreclosure by sale and denied it as untimely. |
| Whether the court should have considered alleged fraud and subordination arguments given default | Default precludes defenses; the court should not consider post-default claims. | Fraud and subordination issues affect the validity of the judgments. | Because a default judgment was entered, defenses to liability were precluded and merits not reached. |
| Whether pleadings could be construed as a writ of audita querela | Audita querela claims were not raised in trial court and thus not properly before the appellate court. | Pleadings should be interpreted as audita querela to obtain relief. | No audita querela was filed; the claim was not properly before the court. |
Key Cases Cited
- Ziruk v. Bedard, 45 Conn.App. 137 (Conn. App. 1997) (inherent authority to open/modify judgments is limited by statute)
- Federal Ins. Co. v. Gabriele, 54 Conn.App. 459 (Conn. App. 1999) (scope of review for timely/untimely motion to open)
- Citibank, N.A. v. Lindland, 131 Conn.App. 653 (Conn. App. 2011) (opening foreclosure by sale subject to four-month limit and timing constraints)
- Falls Mill of Vernon Condominium Assn., Inc. v. Sudsbury, 128 Conn.App. 314 (Conn. App. 2011) (opening strict foreclosure governed by statute; absolute title timing matters)
- Morelli v. Manpower, Inc., 226 Conn. 831 (Conn. 1993) (appealability of denials following late-filed motions)