160 Conn.App. 49
Conn. App. Ct.2015Background
- U.S. Bank, as trustee, commenced a strict foreclosure against Louise Works for a 2006 mortgage after she defaulted; law day was set for May 1, 2012.
- Works requested foreclosure mediation; mediation failed in December 2010. Clerk entered default for failure to plead on June 1, 2011; judgment of strict foreclosure entered November 28, 2011.
- Works filed Chapter 13 bankruptcy on April 30, 2012, which stayed the foreclosure; that petition was dismissed December 21, 2012. Plaintiff later sought to reset law days under Conn. Gen. Stat. § 49-15(b).
- Works subsequently filed Chapter 7; bankruptcy court later granted relief from stay in August 2013. On January 25, 2014, Works moved to open the foreclosure judgment and to set aside the default, asserting defenses including predatory lending.
- Trial court concluded the foreclosure judgment was open and held a hearing, found viable defenses and no prejudice to plaintiff, granted the motion to set aside the default, and permitted Works to plead. Plaintiff appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court properly opened the judgment of strict foreclosure under Conn. Gen. Stat. § 49-15 | § 49-15(b) only permits resetting law days and does not automatically open the entire judgment; court lacked power to open the judgment in full | § 49-15(b) automatically opens the judgment (or at least permits reopening following bankruptcy stay) | The court had authority to open the judgment: even if § 49-15(b)'s reach need not be decided, the court made findings sufficient to open under § 49-15(a)(1) (cause shown via findings on good cause to set aside default) |
| Whether the trial court improperly set aside the default entered for failure to plead | Setting aside the default was improper and should be reviewable on appeal | Default should be set aside because viable defenses existed, no prejudice to plaintiff, and defendant was not negligent | The ruling setting aside the default was interlocutory (nonfinal) after reopening the foreclosure judgment; appellate review of that ruling is dismissed for lack of a final judgment |
Key Cases Cited
- Solomon v. Keiser, 212 Conn. 741 (1989) (exception allowing appeal when party challenges court's power to set aside a judgment)
- Connecticut Light & Power Co. v. Costle, 179 Conn. 415 (1980) (appealability when court's power to act to set aside judgment is challenged)
- J & E Investment Co., LLC v. Athan, 131 Conn. App. 471 (2011) (appeals limited to final judgments under Conn. Gen. Stat. § 52-263)
- Percy v. Lamar Central Outdoor, LLC, 147 Conn. App. 815 (2014) (factors for granting motion to open judgment after default under Practice Book § 17-42)
- Hartford Federal Sav. & Loan Assn. v. Stage Harbor Corp., 181 Conn. 141 (1980) (defendant's negligence in failing to present defense relevant to opening foreclosure judgment under § 49-15)
- Centerbank v. Connell, 29 Conn. App. 508 (1992) (prejudice to mortgagee considered when opening foreclosure judgment)
- Automotive Twins, Inc. v. Klein, 138 Conn. 28 (1951) (default is an order barring further defense, not a final judgment)
- Highgate Condominium Assn., Inc. v. Miller, 129 Conn. App. 429 (2011) (discusses limits/exceptions to reopening foreclosure judgments after law days pass)