148 Conn. App. 302
Conn. App. Ct.2014Background
- In 2003 Russo and his wife executed a $288,750 note secured by a mortgage on 71 Kingsbridge, Avon; they later defaulted and foreclosure began in 2004.
- A judgment of foreclosure by sale was first rendered in December 2005; subsequent proceedings continued and a second judgment was entered July 18, 2011.
- The parties executed a loan modification in 2008 that adjusted principal to $335,360.30 and modified payment terms.
- Russo pursued multiple motions and appeals; this court affirmed the July 18, 2011 foreclosure judgment in 2012 and remanded to set a new sale date.
- After a later dismissal of a second appeal, Wells Fargo moved on October 16, 2012 to open and reenter the July 2011 judgment to set a new sale date; Russo moved December 5, 2012 to open the judgment and requested foreclosure mediation.
- The trial court granted Wells Fargo’s motion to open and reenter the judgment (setting a new sale date) and denied Russo’s motion to open and his mediation referral; Russo appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court abused discretion in granting plaintiff’s motion to open and reenter the July 2011 judgment | Motion to open was proper because stay from dismissed appeal had expired and plaintiff could proceed to reopen the judgment | Court should not have opened the judgment; defendant relied on Practice Book §71-6 and sought relief/mediation | Affirmed — court did not abuse discretion; stay under §71-6 had expired and plaintiff’s motion timely |
| Whether trial court abused discretion in denying defendant’s motion to open the judgment | n/a (plaintiff opposed defendant’s relief) | Russo sought opening to pursue foreclosure mediation and to forestall sale | Affirmed — denial proper; Russo’s request for mediation untimely because judgment remained in effect and his motion to open was denied |
| Whether Practice Book §71-6 prevented plaintiff from moving to open after appeal dismissal | §71-6 stay continues only until time for filing motion for reconsideration expires; plaintiff argued stay had lapsed | Russo argued §71-6 barred plaintiff’s October 2012 motion because appeal had been pending | Held that §71-6 did not bar plaintiff: Russo did not file a timely motion for reconsideration, so the stay was not in effect |
| Whether foreclosure mediation request should have been granted | n/a | Russo argued he should be referred to foreclosure mediation after filing referral in December 2012 | Denied — referral too late because it was filed more than 16 months after the July 2011 judgment and contingent on opening the judgment |
Key Cases Cited
- Walton v. New Hartford, 223 Conn. 155 (1992) (standard: motion to open judgment is reviewed for abuse of discretion)
- Union Trust Co. v. Roth, 58 Conn. App. 481 (2000) (whether to grant motion to open a foreclosure judgment rests in trial court’s discretion)
- Wells Fargo Bank Minnesota, N.A. v. Russo, 135 Conn. App. 903 (2012) (prior appellate decision affirming July 18, 2011 foreclosure judgment and remanding to set new sale date)