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CHASE HOME FINANCE, LLC SCROGGIN—DISSENT BEAR, J., dissenting. The defendant, Daniel Scroggin also known as Daniel J. Scroggin also known as Daniel F. Scroggin, appeals from the judgment of strict foreclo- sure [1] rendered against him by the trial court on April 18, 2016, in favor of the substitute plaintiff, AJX Mort- gage Trust 1, a Delaware Trust, Wilmington Savings Fund Society, F.S.B., Trustee. [2] On appeal, the defendant argues that the court erred in rendering the judgment of strict foreclosure (1) based on a default for failure to plead, because Chase Home Finance, LLC (Chase), significantly amended the pleadings after the default entered, and he was, therefore, entitled to answer prior to the hearing on the motion for judgment of strict foreclosure, and (2) in violation of General Statutes § 52-121 (a). The majority agrees with the defendant as to his first claim and concludes that the court abused its discretion in rendering the judgment of strict foreclo- sure. I respectfully disagree with the majority’s disposi- tion of the defendant’s first claim, and I disagree with the defendant’s second claim, which the majority does not reach in light of its disposition of the first claim. Accordingly, I would affirm the judgment of the trial court.
I The defendant first argues that the court erred in rendering the judgment of strict foreclosure based on the entry of the June 16, 2010 default for failure to plead. Specifically, the defendant asserts that Chase significantly amended the pleadings after the default entered, which extinguished the default, and he, there- fore, was entitled to answer the first count, inter alia, prior to the hearing on the motion for judgment of strict foreclosure. Despite the additional facts and legal theories set forth in the amended complaint, the first count seeking strict foreclosure, the only count in the original complaint, was not substantially changed in the amended complaint to the point where such default was deemed to be vacated.
The majority looks to the changes in and the additions to the amended complaint as a whole in concluding that those changes and additions effectively vacated the default entered on the first count of the original complaint. The focus of the inquiry in this appeal, how- ever, should not be on the amended complaint as a whole. Because the defendant has not appealed from the judgment rendered against him on the fifth and sixth counts of the amended complaint, alleging unjust enrichment and fraud, and he had no legal interest in the dispute between Chase and Bank of America as alleged in the second, third, and fourth counts of the amended complaint, the proper inquiry in this appeal is whether the amended complaint substantially changed *3 the original count for strict foreclosure, the judgment rendered on which is the sole basis for the defendant’s appeal, to the point where it had the effect of extinguish- ing the default entered thereon. The case law cited by the majority readily supports my conclusion that the court did not abuse its discretion in determining that the amended complaint did not have the effect of extin- guishing the default entered on the first count, so as to permit the defendant to file an answer thereto prior to or instead of filing a motion to open and vacate that default.
As conceded in the majority opinion, the analyses of
this court in
Willamette Management Associates, Inc.
v.
Palczynski
,
In
Willamette Management Associates, Inc.
, follow-
ing a default against the defendant for failure to plead,
the plaintiff filed an amended complaint to correct a
scrivener’s error.
Willamette Management Associates,
Inc. Palczynski
, supra,
In
Spilke
, ‘‘the plaintiff filed four amended complaints
after the defendants were defaulted. . . . Although the
complaints differed in some respects from the original
complaint, the substantive allegations remained the
same.’’
Spilke Wicklow
, supra,
Our Supreme Court stated in
Mazulis Zeldner,
which is cited in
Willamette Management Associates,
Inc.
, that ‘‘[i]f the effect of an amendment of a complaint
. . . is to substantially change the
cause of action
origi-
nally stated, the defendant is entitled to file new or
amended pleadings and present further evidence.’’
(Emphasis added.)
Mazulis Zeldner
,
Here, the cause of action for strict foreclosure in the original complaint was not substantially changed in the amended complaint. Although, unlike in Willamette Management Associates, Inc. , the amended complaint in the present case did contain more than a scrivener’s error, since it added new causes of action and an addi- tional party, the defendant has not appealed from the judgment with respect to those new causes of action against him. The only portion of the judgment appealed from—that of strict foreclosure—was not rendered on a substantially changed original complaint, although, as the majority sets forth in its opinion, there was an equitable subrogation reference added in the amended complaint to the language of the original cause of action. The additional language in the first count of the amended complaint, however, merely reflects Chase’s change in position from second mortgagee to first mort- gagee, as a result of paying off Bank of America’s mort- gage. The additional language does not change the substance of the cause of action for strict foreclosure against the defendant.
In summary, despite the additional counts added against the defendant in the amended complaint, both the first, and only, count of the original complaint and the first count of the amended complaint sought a judg- ment of strict foreclosure against the defendant on the basis of essentially the same allegations. Because the amended complaint did not substantially alter the cause of action that is the subject of this appeal, pursuant to Willamette and Spilke the default in the original complaint was not deemed to be vacated by the filing of the amended complaint despite the addition of two causes of action against the defendant and three causes of action against Bank of America. [7]
Because I conclude that the defendant’s first claim should be rejected, I must consider the defendant’s second claim.
II The defendant argues in his second claim that, by operation of § 52-121 (a), he was entitled to file an operative answer prior to the hearing on the motion for judgment of strict foreclosure filed on June 7, 2010.
Section 52-121 (a) provides: ‘‘Any pleading in any civil
*5
action may be filed after the expiration of the time fixed
by statute or by any rule of court until the court has
heard any motion for judgment by default or nonsuit
for failure to plead which has been filed in writing with
the clerk of the court in which the action is pending.’’
A court, in the exercise of its discretion, may refuse to
consider a pleading, although it is filed prior to judg-
ment on the default, but doing so is ‘‘plain error if, prior
to rendering a judgment upon default, the court fails
to accept for filing a defaulted party’s pleading solely
on the ground that the pleading is untimely.’’ (Internal
quotation marks omitted.)
Deutsche Bank National
Trust Co. Cornelius
,
This court has previously rejected an argument that
the trial court violated § 52-121 (a) in refusing to accept
the defaulted party’s answer solely on the basis of time-
liness when there was another reason pursuant to which
the court decided not to allow an answer to be filed.
In
Deutsche Bank National Trust Co. Bertrand,
supra,
Similarly here, it is not clear from the record that the court rejected the defendant’s answer solely on the basis that it was untimely. At the hearing on the motion for judgment of strict foreclosure, the defendant’s coun- sel asserted that § 52-121 (a) ‘‘is controlling, as it indi- *6 cates that notwithstanding any other statute or court rule, a pleading may be filed until the court has heard any motion for judgment by default.’’ In response, the plaintiff’s counsel stated that ‘‘[t]his really comes down to timeliness, and the defendant not [repleading] and not moving to open the default.’’ The court concluded: ‘‘Well, in my view, [the defendant] should have moved to open a default. [The defendant] didn’t. I’ll allow [the plaintiff] to go forward with [its] foreclosure.’’ At the end of the hearing, the defendant’s counsel again inquired ‘‘as to the court’s position on the applicability of § 52-121 (a).’’ The court then explained its reasons for declining to consider the answer and rendering the judgment of foreclosure:
‘‘The Court: You didn’t move to [open], waiting five years. And you just can’t file an answer once a motion for judgment has been filed.
‘‘[The Defendant’s Counsel]: Notwithstanding the statute?
‘‘The Court: I’m entering a foreclosure.
‘‘[The Defendant’s Counsel]: Very well, Your Honor. ‘‘The Court: I think your actions were solely for the purpose of delay.’’
The court thus had before it multiple grounds it could
consider in deciding whether to render the judgment
of foreclosure, including: (1) the timeliness of the
answer; (2) that the defendant never moved to open
the default; and (3) that the defendant’s actions were
solely for the purpose of delay. Similarly to the court
in
Bertrand
, where the court considered that the
answer was not e-filed in addition to considering the
timeliness of the answer, the court here did not
expressly reject the pleading solely because it was not
filed on time, but also, inter alia, because the defendant
had not filed a motion to open the default prior to the
filing of the answer. See
Deutsche Bank National Trust
Co. Bertrand
, supra,
The court’s ruling, based in part on its consideration
of the defendant’s failure to move to open, is supported
by this court’s conclusion in
Deutsche Bank National
Trust Co. Cornelius
, supra,
As discussed in part I of this dissenting opinion, the
first count for strict foreclosure in the amended com-
plaint was not sufficiently different from the count in
the original complaint so as to result in the setting aside
or extinguishing of the default. The plaintiff’s motion
for judgment on the first count was filed on June 7,
2010, the default for failure to plead was entered on
June 16, 2010, and, although no motion to open and
vacate the default had been filed, the defendant’s
answer to the first count was filed on November 2, 2015,
while the plaintiff’s motion for judgment was pending.
During the approximately five year period between the
default and the hearing on the motion for judgment,
the defendant did not move to open the default. Instead,
the defendant waited approximately five years after the
filing of the amended complaint to file an answer to
a cause of action on which he had previously been
defaulted, without moving to open and set aside the
default prior to filing his answer. As the court stated,
the defendant ‘‘didn’t move to [open], waiting five years.
And you just can’t file an answer once a motion for
judgment has been filed.’’ The court thus reasonably
understood that ‘‘ ‘[t]he effect of a default is to preclude
the defendant from making any further defense in the
case so far as liability is concerned . .
.
.’ Practice
Book § 17-33 (b)’’;
Bank of New York Mellon
v.
Talbot
,
To summarize, making every reasonable presumption
in favor of the trial court’s decision, as we are required
to do; see
Webster Bank Zak
,
Accordingly, I would affirm the judgment of the court. [1] The defendant has not appealed from the judgment rendered against him on the counts alleging unjust enrichment and fraud.
[2] As the majority explains in footnote 1 of its opinion, Chase Home Finance, LLC, commenced this action in 2009; following the grant of three motions to substitute the plaintiff, the court rendered judgment in favor of the substitute plaintiff, AJX Mortgage Trust 1, a Delaware Trust, Wilmington Savings Fund Society, F.S.B. For purposes of clarity, in this dissenting opinion, I refer to AJX Mortgage Trust 1, a Delaware Trust, Wilmington Savings Fund Society, F.S.B., Trustee as the plaintiff and to Chase Home Finance, LLC (Chase), by name.
[3] General Statutes § 52-121 (a) provides: ‘‘Any pleading in any civil action may be filed after the expiration of the time fixed by statute or by any rule of court until the court has heard any motion for judgment by default or nonsuit for failure to plead which has been filed in writing with the clerk of the court in which the action is pending.’’
[4] As the majority notes in its opinion, a ‘‘comparison of the original and amended complaints readily reveals that the amended complaint filed follow- ing the default interjected material new issues in the case, thereby substan- tially changing the pleadings. . . . [I]n contrast to the original, one-count complaint brought against the defendant by Chase, the amended, six-count complaint . . . contained new counts in which the plaintiff sought equitably to subordinate the interest of Bank of America to its mortgage interest, and two new counts directed at the defendant . . . and interjected new material factual allegations and new legal theories . . . .’’
[5] The first count in the amended complaint included the additional lan- guage that: ‘‘On the aforementioned piece of property, the following interests are claimed which are subsequent to [Chase’s] said mortgage: A mortgage in favor of Bank of America, N.A., in the original principal amount of $100,000, dated 18, 2007 and recorded February 7, 2007 in Volume 662, Page 195 of the Portland land records.’’ In contrast, the first count in the original complaint stated: ‘‘On the aforementioned piece of property, the following interests are claimed which are subsequent to [Chase’s] said mortgage: None.’’ At the time that the complaint was filed, Bank of America maintained
first mortgagee status. The amended complaint requested that Chase be subrogated to Bank of America’s position as first mortgagee. The reason for the request for subrogation is in the new count two of the amended complaint against Bank of America: ‘‘[Chase] paid off, as proceeds of its mortgage set forth herein, a mortgage prior in right to that of the Defendant Bank of America intending to then obtain a first mortgage upon the property herein being foreclosed, and, therefore, should be equitably subrogated to the position of that prior mortgage.’’ Our law concerning the effect of a default is that ‘‘[t]he entry of a default
constitutes an admission by the [defaulted party] of the truth of the facts
alleged in the complaint. . . . Practice Book § 17-33 (b) provides in relevant
part that the effect of a default is to preclude the defendant from making
any further defense in the case so far as liability is concerned . . . .’’ (Cita-
tion omitted; internal quotation marks omitted.)
TD Banknorth, N.A.
v.
White Water Mountain Resorts of Connecticut, Inc.
,
counts alleging unjust enrichment and fraud; therefore, it is not necessary to address whether he was entitled to file a pleading pursuant to § 52-121 (a) to answer or specially defend against those new counts. Practice Book § 17-42 provides in relevant part: ‘‘A motion to set aside
a default where no judgment has been rendered may be granted by the
judicial authority for good cause shown upon such terms as it may impose.
. . .’’ It is well established that ‘‘[the] determination of whether to set aside
[a] default is within the discretion of the trial court . . . and [such a determi-
nation] will not be disturbed unless that discretion has been abused or
where injustice will result. In the exercise of its discretion, the trial court
may consider not only the presence of mistake, accident, inadvertence,
misfortune or other reasonable cause . . . [and] factors such as [t]he seri-
ousness of the default,
its duration
, the reasons for it and the degree of
contumacy involved . . . but also, the totality of the circumstances, includ-
ing whether the delay has caused prejudice to the nondefaulting party.’’
(Citations omitted; emphasis added; internal quotation marks omitted.)
Hig-
gins
v.
Karp
,