THE CROSSING CONDOMINIUM ASSOCIATION, INC. v. JOSEPHINE S. MILLER ET AL.
AC 46334, AC 46586
Appellate Court of Connecticut
October 1, 2024
Bright, C. J., and Elgo and Cradle, Js.
U.S. BANK TRUST, N.A., TRUSTEE v. JOSEPHINE S. MILLER ET AL. (AC 46586)
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Syllabus
The defendant, in two separate appeals, appealed from the judgment of the trial court denying her motion to open and vacate the judgment of foreclosure rendered for the plaintiff condominium association in connection with a statutory lien (
The trial court did not abuse its discretion in denying the defendant‘s motion to open and vacate the judgment of foreclosure by sale in the lien foreclosure action, as an erroneous statement in the court‘s written orders was a scrivener‘s error and was not raised or discussed during the lien foreclosure proceeding.
The trial court did not abuse its discretion in ordering a judgment of foreclosure by sale in the mortgage foreclosure action; contrary to the defendant‘s claim, the sale of the property to the bank in connection with the lien foreclosure action was never approved by the court, as the committee for sale withdrew its motion to approve the sale due to the pendency of the defendant‘s appeal to this court in the lien foreclosure action.
Argued May 30—officially released October 1, 2024
Action, in the first case, to foreclose a statutory lien on certain real property of the named defendant, and for other relief, brought to the Superior Court in the judicial district of Danbury, where the named defendant was defaulted for failure to plead, and action, in the second case, to foreclose a mortgage on certain real property of the named defendant, and for other relief, brought to the Superior Court in the judicial district of Danbury; thereafter, in the first case, the court, Shaban, J., rendered a judgment of foreclosure by sale and denied the named defendant‘s motion to open the judgment, and the named defendant appealed to this court; subsequently, in the second case, the court, Shaban, J., granted the plaintiff‘s motion for summary judgment and rendered a judgment of foreclosure by sale, from which the named defendant appealed to this court. Affirmed.
Josephine S. Miller, self-represented, the appellant in both appeals (named defendant).
Benjamin T. Staskiewicz, for the appellee in Docket No. 46586 (plaintiff).
Opinion
ELGO, J. These related appeals brought by the self-represented defendant, Josephine S. Miller, concern two distinct foreclosure proceedings involving the same real property. In Docket No. AC 46334, the defendant appeals from the judgment of foreclosure by sale rendered by the trial court in favor of The Crossing Condominium Association, Inc. (association), claiming that the court abused its discretion in denying her motion to open and vacate that judgment.1 In Docket No. AC 46586, the defendant appeals from the judgment of foreclosure by sale rendered by the trial court in favor of the plaintiff, U.S. Bank Trust, N.A., as trustee for LSF9 Master Participation Trust (bank), claiming that the court abused its discretion in so doing.2 We affirm the judgments of the trial court.
The relevant facts in AC 46334 are largely undisputed. The association is a common interest community; see
In June, 2021, the association brought an action to foreclose on the statutory lien on the property pursuant to
On October 14, 2021, the defendant notified the court that she had filed a bankruptcy petition pursuant to chapter 13 of the United States Bankruptcy Code, which resulted in an automatic stay of the lien foreclosure action. After the association obtained relief from that automatic stay, it filed a motion to open the judgment of foreclosure by sale on September 9, 2022. The court held a hearing on the association‘s motion, in which both parties participated. On November 14, 2022, the court issued an order opening and modifying the foreclosure judgment, finding the total debt and fees to be $25,524 and setting a
On December 21, 2022, the association filed a notice of judgment, in which it averred that the total debt and fees equaled $27,749. On February 3, 2023, the court issued a supplemental order on the association‘s motion to open the judgment of foreclosure by sale. Other than adjusting the dates on which the committee could incur expenses, that order was identical to its November 14, 2022 order. Notably, the total debt and fees specified in the February 3, 2023 order remained $25,524—the same figure specified in the court‘s November 14, 2022 order. A copy of the February 3, 2023 order was furnished to the defendant by the court.
Two days before the scheduled sale date of March 18, 2023, the defendant filed a motion to open and vacate the judgment of foreclosure by sale. The court held a hearing the following day, at which the defendant explained that her motion was predicated (1) on the incorrect statement in the court‘s November 14, 2022 and February 3, 2023 orders that the association was “the holder of the original note and the assignee of the mortgage” and (2) on the association‘s failure to provide her notice of the court‘s February 3, 2023 order in accordance with the standing orders for foreclosures by sale.
At that time, the court noted that the November 14, 2022 hearing had been conducted remotely and that the association‘s status as the holder of the note or assignee of the mortgage was never discussed during that hearing. The court acknowledged that the statement in its November 14, 2022 and February 3, 2023 orders that the association was the holder of the original note and the assignee of the mortgage was “incorrect“; see footnote 3 of this opinion; and then stated that it went “back and listen[ed] to . . . a recording of the [November 14, 2022 hearing], and the court never said those words. I think the error came about due to a template that sometimes is used in foreclosure matters and may have been incorrectly rolled into this judgment. . . . [T]o the extent that it may be viewed as a scrivener‘s error, there‘s certainly some merit to that. . . . But it‘s clear that [the transcript reflects] what judgment was actually entered on the day of the hearing before the court.” The court then furnished a copy of the transcript of the November 14, 2022 hearing to the parties and took a recess to allow them an opportunity for review.4
When the hearing resumed, the defendant and the association‘s counsel both confirmed that they had reviewed the November 14, 2022 transcript, a copy of which was marked as court exhibit 1. The court noted for the record that, “contrary to [what was] in the [November 14, 2022 and February 3, 2023 orders] where it said the [association] is the holder of the original note and the assignee of the mortgage, [the court] did not say those words at the
The court then posed the following question to the defendant: “[H]ow would proceeding with the sale be prejudicial to you in light of the fact that those words were [included in the November 14, 2022 and February 3, 2023 orders], though at the actual hearing they were never recited?” In response, the defendant stated that the notice of judgment filed by the association on December 21, 2023 “conflicted with what the court ordered.”5 The defendant thus stated that she was confused “in terms of what is the actual amount that would be expected to be paid off prior to a sale going forward. . . . [I]t is not clear to me what the amount of the debt is.”
In response, the court noted that the defendant had not raised any such issue in her motion to open. The court further noted the total debt and fees specified in the court‘s February 3, 2023 order “are the same numbers [and are] consistent with” those specified by the court on November 14, 2022. The court also observed that, at the conclusion of the November 14, 2022 hearing, it specifically asked the defendant if she had any questions or if she believed that the court had overlooked anything, and the defendant had answered in the negative.
The defendant then argued that “[t]here is nothing on the docket sheet to show” that the association had provided her with notice of the court‘s February 3, 2023 order.6 In response, the association‘s counsel stated that the defendant did not raise that notice issue in her motion to open. At the conclusion of the hearing, the court asked the defendant what remedy she was seeking. The defendant stated that she was asking the court to “vacate the judgment, correct these errors, and set a new sale date.”
By order dated March 17, 2023, the court denied the defendant‘s motion to open the judgment of foreclosure by sale. In that order, the court stated in relevant part: “Practice Book § 17-4 vests discretion in the trial court to determine whether there is a good and compelling reason to modify or vacate its judgment. . . . No good or compelling reason has been provided to the court which would lead it to the conclusion that the judgment should be reopened. . . . [A]t the November 14, 2022 hearing, the court specifically inquired of each counsel including the defendant as to whether the court had overlooked any aspect of the consideration of the [association‘s] motion to reset the law days and the court‘s findings. Each party, including the defendant, replied that they were not aware of anything being overlooked. . . . Further, the error complained of by the defendant as to the wording of the judgment which referenced that the [association] was the holder of the original note and assignee of the mortgage was a scrivener‘s error. To vacate the judgment on that basis would elevate form over substance, especially given that the defendant was present at the time the judgment was placed on the record and heard it recited
“Lastly, the court notes that the defendant suffers no prejudice from the denial of the motion in that, because the Unites States is a party, a sale of the property is mandated by law. To cancel the sale and order another sale would only increase the costs and expenses incurred by defendant should she ultimately elect to redeem. This would be to her financial detriment. At the hearing on the present motion, the defendant indicated, in part, the judgment should be opened because it was unclear from the notice issued what the actual debt was. This is unavailing as the defendant was present when the debt was found by the court and announced as part of its judgment. Moreover, her argument rings hollow at this point in time as there was no evidence presented at the hearing on her motion that she had ever inquired of the [association] since the date of the judgment as to what the outstanding debt was with respect to possible redemption of the property and payment of the outstanding balance.” (Citations omitted.)
I
In AC 46334, the defendant claims that the court abused its discretion by denying her motion to open and vacate the judgment of foreclosure by sale in the lien foreclosure action. We do not agree.
“The standard of review of [a denial of a motion to open] a judgment of foreclosure by sale . . . is whether the trial court abused its discretion.” (Internal quotation marks omitted.) Milford v. Recycling, Inc., 213 Conn. App. 306, 309, 278 A.3d 1119, cert. denied, 345 Conn. 906, 282 A.3d 981 (2022). “A foreclosure action is an equitable proceeding. . . . The determination of what equity requires is a matter for the discretion of the trial court. . . . In determining whether the trial court has abused its discretion, we must make every reasonable presumption in favor of the correctness of its action. . . . Our review of a trial court‘s exercise of the legal discretion vested in it is limited to the questions of whether the trial court correctly applied the law and could reasonably have reached the conclusion that it did.” (Internal quotation marks omitted.) Federal Deposit Ins. Corp. v. Owen, 88 Conn. App. 806, 811–12, 873 A.2d 1003, cert. denied, 275 Conn. 902, 882 A.2d 670 (2005).
Our review of the record convinces us that the court was well within its discretion to deny the defendant‘s motion to open. A review of the record—and the transcripts of the November 14, 2022 and March 17, 2023 hearings in particular—demonstrates that the erroneous statement contained in the court‘s November 14, 2022 and February 3, 2023 written orders regarding the holder of the note and assignee of the mortgage was the result of a scrivener‘s error, as that issue was neither raised nor discussed at any time during this statutory lien foreclosure proceeding. Moreover, the defendant at all times was aware that the association was pursuing that action in its capacity as a common interest community to recover common assessments due to it, as the complaint plainly indicates.
II
In AC 46586, the defendant claims that the court abused its discretion by rendering a judgment of foreclosure by sale in a separate foreclosure action. We disagree.
The following additional facts are relevant to that claim. Approximately two months after the association commenced the lien foreclosure action that is the subject of the appeal in AC 46334, the bank commenced this action to foreclose on a promissory note secured by a mortgage deed on the property (mortgage foreclosure action). The defendant filed an appearance on October 5, 2021. On October 14, 2021, the defendant filed a notice that she had filed a bankruptcy petition pursuant to chapter 13 of the United States Bankruptcy Code, which resulted in an automatic stay of the mortgage foreclosure action. On May 5, 2022, the bank filed a notice that it had obtained relief from that automatic stay.
The defendant filed her answer and special defenses on May 19, 2022. Approximately four months later, the bank moved for summary judgment. Following a hearing at which the defendant failed to appear, the court granted the bank‘s motion for summary judgment on January 23, 2023.7
On Friday, March 17, 2023, the court in the lien foreclosure action denied the defendant‘s motion to open and vacate the judgment of foreclosure by sale. Unbeknownst to the bank, the defendant filed an appeal of that judgment with this court
While the defendant‘s appeal in the lien foreclosure action was pending, the bank filed a motion for a judgment of strict foreclosure in the mortgage foreclosure action on April 27, 2023. In the weeks that followed, the bank filed copies of the note and mortgage documents, a notice of EMAP compliance as required by
On appeal, the defendant contends that the court improperly rendered a judgment of foreclosure by sale in the mortgage foreclosure action. That claim also is governed by the abuse of discretion standard of review. As our Supreme Court has explained, “[a] foreclosure action is an equitable proceeding. . . . The determination of what equity requires is a matter for the discretion of the trial court. . . . In determining whether the trial court has abused its discretion, we must make every reasonable presumption in favor of the correctness of its action. . . . Our review of a trial court‘s exercise of the legal discretion vested in it is limited to the questions of whether the trial court correctly applied the law and could reasonably have reached the conclusion that it did.” (Internal quotation marks omitted.) Deutsche Bank National Trust Co. v. Angle, 284 Conn. 322, 326, 933 A.2d 1143 (2007); see also Deutsche Bank Trust Co. Americas v. DeGennaro, 149 Conn. App. 784, 793, 89 A.3d 969 (2014) (“[t]he standard of review of a judgment of foreclosure by sale or by strict foreclosure is whether the trial court abused its discretion” (internal quotation marks omitted)).
Where a foreclosure defendant‘s liability has been established by summary judgment, as is the case here, “all that remains for the court to determine at the judgment hearing is the amount of the debt and the terms of the judgment.” GMAC Mortgage, LLC v. Ford, 144 Conn. App. 165, 186, 73 A.3d 742 (2013). Following the filing of the bank‘s motion for a judgment of foreclosure and related documentation, the defendant did nothing in response, such as objecting to the evidence of debt submitted by the bank. The record indicates that the defendant‘s last filing with the court in the mortgage foreclosure action was a motion for an extension of time “to conduct discovery” filed on December 28, 2022—more than five months prior to the court‘s decision to render a judgment of foreclosure by sale.
The defendant nonetheless argues that the court abused its discretion because the property “had already been sold” to the bank at the March 18, 2023 foreclosure sale in the lien foreclosure action. She overlooks the fact that her timely filing of an appeal in the lien foreclosure action hours prior to that foreclosure sale rendered that purported sale void, as an
The judgments are affirmed and the cases are remanded for the purpose of setting a new sale date.
In this opinion the other judges concurred.