Wells Fargo Bank, NA v. Cornelius
26 A.3d 700
Conn. App. Ct.2011Background
- Plaintiff Wells Fargo Bank filed a foreclosure complaint on May 30, 2008 against Cornelius and others for real property in Farmington.
- Service was by marshal at the defendant’s claimed address, leading to a default judgment on June 27, 2008 and a foreclosure by sale order on July 14, 2008 with a sale date set for October 18, 2008.
- On October 1, 2008, Cornelius moved to dismiss for improper service; plaintiff opposed and later sought to open the default and cite in the defendant.
- The court amended summons and served Cornelius at the address he provided; on February 9, 2009, the court denied the motion to dismiss.
- Summary judgment as to liability was entered on October 13, 2009; foreclosure by sale judgment followed on February 5, 2010, with a sale date May 8, 2010.
- A satisfaction of judgment was filed February 18, 2010; Cornelius timely appealed on February 24, 2010.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether service of process was valid and proper dismissal was warranted | Cornelius received service at the address he provided, valid service. | Service failed to meet proper procedure; court should dismiss. | Service valid; dismissal denied. |
| Whether tender of payment in 2008 rendered the debt extinguished | Tender did not extinguish because the amount owed exceeded the tender. | If tender covers debt, court should order acceptance. | Tender insufficient; debt remained. |
| Whether the court correctly determined the debt amount in light of the tender | Debt amount set by judgment before tender remained due, including costs. | If tender was full, subsequent costs shouldn’t be added. | Debt amount properly determined including fees and costs. |
| Whether the court properly considered the motion to cite in before ruling on the motion to dismiss | Citing in a new party is permissible and does not affect jurisdictional resolution. | Order to cite in should not precede jurisdictional rulings. | No error; order to cite in was proper. |
| Whether the court improperly imposed costs for filing the motion to open before calendar placement | Costs issue was properly before the court. | Costs should not be imposed in this context. | Issue not reached on brief; not addressed. |
Key Cases Cited
- Bock v. Meriden Trust & Safe Deposit Co., 135 Conn. 94 (1948) (satisfaction of judgment does not moot appeal because restitution may be required)
- Preisner v. Aetna Casualty & Surety Co., 203 Conn. 407 (1987) (execution before reversal may require restitution; mootness considerations depend on circumstances)
- New Hartford v. Connecticut Resources Recovery Authority, 291 Conn. 502 (2009) (mootness as threshold jurisdictional issue; actual controversy required throughout appeal)
- New Haven v. God’s Corner Church, Inc., 108 Conn. App. 134 (2008) (trial court had jurisdiction to determine debt owed under tax liens after redemption and docketed satisfaction)