NATIONSTAR MORTGAGE, LLC v. ALAN M. GIACOMI ET AL.
AC 46212
Appellate Court of Connecticut
July 2, 2024
Clark, Seeley and Prescott, Js.
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Syllabus
The plaintiff sought to foreclose on certain real property owned by the defendants G and his wife. After several failed attempts to serve G with process, the court granted the motion of the substitute plaintiff, U Co., to cite in G as a party defendant, and U Co. filed a revised complaint. Thereafter, G failed to file a timely pleading in response to the operative complaint by the deadline for doing so under the rule of practice (
- G could not prevail on his claims challenging the trial court‘s underlying default judgment of foreclosure; neither G‘s claim that he wrongfully was denied participation in the foreclosure mediation program due to procedural delays nor his claim that the court erroneously denied his request to revise the complaint constituted a prоper challenge to the court‘s judgment that G had been defaulted for failure to plead, as the effect of the default was to preclude G from denying liability for the claims asserted in the complaint and to permit the rendering of judgment in favor of U Co.
- The trial court did not abuse its discretion in denying G‘s motion to open the default judgment; the court found, inter alia, that G‘s proffered justification for failing to file a timely pleading, namely, that he had an erroneous understanding of the pleading deadline at issue, did not satisfy the second prong of the applicable statute (
§ 52-212 (a) ) because it was not the result of mistake, acсident or excusable neglect but was rooted in G‘s own negligence.
Argued January 29—officially released July 2, 2024
Action to foreclose a mortgage on certain real property owned by the named defendant et al., and for other relief, brought to the Superior Court in the judicial district of Waterbury, where the court, M. Taylor, J., granted the plaintiff‘s motion to substitute U.S. Bank National Association, Trustee, as the plaintiff; thereafter, the court, Spader, J., granted the substitute plaintiff‘s motion for default for failure to plead as to the named defendant and rendered a judgment of foreclosure by sale; subsequently, the court, Spader, J., denied the named defendant‘s motion to open and vaсate the judgment of foreclosure, from which the named defendant appealed to this court. Affirmed.
Alan M. Giacomi, self-represented, the appellant (named defendant).
Jeffrey M. Knickerbocker, for the appellee (plaintiff).
Opinion
CLARK, J. The defendant Alan M. Giacomi1 appeals from the judgment of the trial court denying his motion to open and vacate the judgment of foreclosure by sale rendered after he was defaulted for failure to plead. On appeal, the defendant claims that the court improperly (1) “den[ied] [his] requests to participate in foreclosure mediation,” (2) “sustain[ed] the plaintiff‘s objection to [his] request to revise on or about February 5, 2020,” and (3) denied his motion to open the default judgment pursuant to
The following facts and procedural history are relevant to our resolution of this appeal. On May 18, 2017, the original plaintiff, Nationstar Mortgage, LLC (Nationstar), commenced this action against Melissa R. Giacomi (Melissa Giacomi) to foreclose a mortgage on property located
On January 16, 2018, Nationstar filed a motion to cite in the defendant as a party defendant, which was granted by the court, M. Taylor, J., on January 29, 2018. On May 14, 2018, after the defendant was defaulted for failure to appear, Nationstar filed a motion for a judgment of strict foreclosure, which was granted by the court on May 29, 2018, with the law days set to commence on August 7, 2018.
On June 29, 2018, Nationstar filed a motion to open the judgment nunc pro tunc and to substitute “U.S. Bank National Association, not in its individual capacity but solely as trustee for the RMAC Trust, Series 2016-CCT” (U.S. Bank), as the plaintiff on the basis that Nationstar had assigned the mortgage to U.S. Bank by an assignment dated May 17, 2018, and recorded on the Wolcott land records on May 29, 2018. On July 16, 2018, the court granted the motion.3
On August 3, 2018, Melissa Giacomi filed a notice of bankruptcy stay. On December 14, 2018, after Melissa Giacomi received a discharge from the bankruptcy court and her bankruptcy case was closed, U.S. Bank filed a motion to open and reset the law days. On January 28, 2019, the court granted the motion and rendered a judgment of strict foreclosure with the law days to commence on July 2, 2019.
On June 20, 2019, the defendant filed an appearance in the case. The defendant filed a motion to open and vacate the judgment on July 1, 2019, which the court granted on the same day and reset the law days to commence on July 23, 2019. Thereafter, on July 19, 2019, the defendant filed a motion to dismiss, claiming that the court had no personal jurisdiction over him pursuant to
On August 7, 2019, a motion to open and vacate the judgment of foreclosure and a motion to cite in the defendant as a party defendant was filed. On August 19, 2019, the court granted the motion to open and vacate the judgment, and, on August 23, 2019, the court granted the motion to cite in the defendant as a party defendant. On November 12, 2019, due to an error in service, an additional motion to cite in the defendant as a party defendant was filed and was granted by the court on November 25, 2019.4 On December 23, 2019, the defendant was finally served with the amended complaint.
On July 12, 2022, U.S. Bank filed a revised complaint, which is the operative complaint in this appeal. On August 10, 2022, U.S. Bank filed a motion for a judgment of strict foreclosure. The defendant filed a request to revise on August 11, 2022, which was denied by the court on September 6, 2022. The defendant subsequently filed a motion to strike on September 20, 2022, which was denied by the court on October 11, 2022. Thereafter, the defendant failed to file a timely pleading in response to the operative complaint by the October 26, 2022 deadline for doing so under
to default the defendant for failure to plead. The court granted that motion on November 8, 2022. On November 14, 2022, the court held a hearing on U.S. Bank‘s August 10, 2022 motion for a judgment of strict foreclosure, at which it rendered a judgment of foreclosure by sale with a sale date of February 25, 2023.
On December 5, 2022, the defendant filed a motion to open and vacate the judgment of foreclosure, arguing that he had good defenses at the time the judgment was rendered and that he was unable to raise his defenses by filing a timely answer due to mistake, accident, or other reasonable cause. Specificаlly, the defendant stated, inter alia, that he “failed to plead due to his belief that he had thirty days to plead after the court‘s action on the prior pleading. . . . The defendant was unaware that foreclosure actions carried different time constraints than regular civil actions.” U.S. Bank filed an objection to the defendant‘s motion on December 13, 2022. On December 21, 2022, the court denied the defendant‘s motion to open and vacate the judgment of foreclosure and sustained U.S. Bank‘s objection to the motion.
In its memorandum of decision, the court stated: “The court has considered the arguments of the defendant and thе
“To open a judgment, the defendant must demonstrate both that he has a good defense to the underlying action and that he was prevented by mistake, accident, or other excusable neglect from raising said defense. Even if the court is persuaded that the defendant has good reason for not timely raising the defense, if the defense is insufficient, the judgment should not be opened. See generally Costello v. Hartford Institute of Accounting, Inc., 193 Conn. 160, 167, 475 A.2d 310 (1984). The defendant has not presented good cause for the court to reopen the judgment. He has not credibly demonstrated that a good defense existed at the time of judgment.
“As to the timing of the default, it was properly entered. [U.S. Bank] moved for the default on November 1, 2022, and it was granted on November 8, 2022. The defendant claims he only received the notice of the granting of the default on November 10, 2022, the courthouse was closed on November 11, 2022, and the judgment hearing was on November 14, 2022—so he did not have time to go to the courthouse library to conduct legal research. The default was moved for on November 1, 2022. Based on the defendant‘s affidavit, he had not even begun to research his defenses at the time he received notice of the granting of the motion. While the defendant is a self-represented party, it is also true that he is a former attorney with more legal training than others before the court and had, at least at some point in the past, knowledge of the Connecticut Practice Book and knowledge of pleading timelines. The court cannot say that the defendant was prevented by mistake, accident, or excusable neglect from timely raising his potential defenses, as it appears that he neglected to raise them by his own negligence. He notes that he has vigorously defended the proceedings thus fаr, and the court acknowledges that he has, but the default entered properly for his not timely filing a responsive pleading when due nor after receiving [U.S. Bank‘s] motion requesting the default.
“Although at this point the court, based on the above finding, does not need to review the potential defenses, for the sake of a clean record, the court will do so. The defenses being claimed by the defendant are grounded in equity. Foreclosures are equitable proceedings and equitable defenses are available thereto. The defendant first claims that the original lender engaged in fraud in approving him for a mortgage as he executed a loan given to him based on inaccurate figures amended by employees of GMAC [Mortgage Corporation] prior to the loan origination and that the terms on the second mortgage signed contemporaneously with the loan subject to his action were inaccurate. The defendant then claims that the procedural delays caused by [Nationstar‘s] initial inability to serve him because he was no longer at the premises, and then through delays in causing the motions to cite to be consummated with valid service, resulted in his not being able to engage in mediation and caused еxcessive interest accrual. Accordingly, the defendant contends that the court should consider the procedural delays of [Nationstar and U.S. Bank] as a defense pursuant to U.S. Bank National Assn. v. Blowers, 332 Conn. 656, 212 A.3d 226 (2019). Finally, the defendant claims a priority issue, alleging that the federal lien on his property has priority over the city‘s accruing real estate taxes and if the court, following a foreclosure sale, disburses to the city rather than the [United States], less of his equity in the premises will be
*
“As to the second proposed defense, the court cannot fully credit the procedural delays against [Nationstar and U.S. Bank]. The defendant was unable to be served properly when he was no longer at the home. [Melissa Giacomi] may not have advised him of the pendency of this action, but he did know [that] he was in default on the mortgage and did not take any steps to reach out to [Nationstar] to attempt to resolve the situation. The matter was delayed for a time with [Melissa Giacomi‘s] mediation attempts and her bankruptcy. The court found that service was not proper and granted the defendant‘s previous motion to open. The court‘s decision revealed the difficulty of effectuating proper service, but eventually, [U.S. Bank] obtained proper service and the action proceeded.
“These are not the types of delays that the Blowers court indicated could provide a defense to a foreclosure—the issue there was bad faith negotiations. If anything at all, delays could provide an offset to the debt, but the defendant would also have to demonstrate that he had some ability to negotiate payments. The defendant did not move to reconsider the denials of his mediation requests so there is no record of why they were denied, but with [Melissa Giacomi] as a coborrower on the note and her obtaining a Chapter 7 dischаrge of personal liability, it is clear that no modification is presently possible. The delay in effectuating actual service did not prejudice the defendant in his ability to redeem the mortgage if he chose to do so since the 2016 default in payments nor his ability to defend this matter.
*
“The defendant also mentions his issues with [U.S. Bank‘s] pleadings, alleging that it has not followed the cite in orders by properly stating his interest in the premises and by including the original plaintiff of Nationstar in its captioning of pleadings, despite an order to amend the summons and complaint. The court has reviewed the pleadings and finds no jurisdictional error in them. The case caption required by the court is the Nationstar name, as that is how the clerk has the case captioned. The operative complaint does indicate the substituted plaintiff in the signature block. The interest of the defendant has consistently been plead[ed] as a party to the note and mortgage . . . and owner and possessor of the premises . . . .
“After careful consideration of all of the defendant‘s arguments and his affidavit and pleadings, the court denies the motion to open and vacate the judgment of foreclosure by sale.” (Emphasis in original.) This appeal followed.
I
We first address the defendant‘s claims challenging the underlying default judgment of foreclosure.6 The defendant challenges that default judgment on two grounds. Specifically, he claims that the court improperly (1) “den[ied] [his] requests to participate in foreclosure mediation” and (2) “sustain[ed] the plaintiff‘s objection to [his] request to revise on or about February 5, 2020.” We reject both of these claims because neither claim constitutes a proper challenge to the basis for the court‘s judgment in this case, namely
“The entry of a default constitutes an admission by the [defaulted party] of the truth of the facts alleged in the complaint.
The court granted U.S. Bank‘s motion for default for failure to plead on November 8, 2022. The effect of the default was to preclude the defendant from denying liability for the claims asserted in the complaint and to permit the rendering of judgment in favor of U.S. Bank. See TD Banknorth, N.A. v. White Water Mountain Resorts of Connecticut, Inc., supra, 133 Conn. App. 545-46;
II
Next, the defendant claims that the court erred in denying his motion to open
We begin by setting forth our standard of review and the relevant legal principles. “We review a trial court‘s ruling on motions to open under an abuse of discretion standard. . . . Under this standard, we give every reasonable presumption in favor of a decision‘s correctness and will disturb the decision only where the trial court acted unreasonably or in a clear abuse of discretion. . . . As with any discretionary action of the trial court . . . the ultimate [question for appellate review] is whether the trial court could have reasonably concluded as it did. . . . [I]n order to determine whether the court abused its discretion [in ruling on a motion to open], we must look to the conclusions of fact upon which the trial court predicated its ruling. . . . Those factual findings are reviewed pursuant to the clearly erroneous standard. . . .
“A motion to set aside a default judgment is governed by
Our appellate courts have long held that a party‘s own negligence does not qualify as a “mistake” for purposes of
In the present case, the court found, inter alia, that the defendant‘s proffered justification for failing to file a timely pleading did not satisfy the second prong of
The only reason the defendant offered for his failure to timely plead was that he “mistakenly believ[ed] that he had additional time to plead . . . .” He admits that he missed the requisite deadline because he had an “erroneous understanding of the time constraints at issue . . . .”8 Although the defendant labels his failure
to timely file his answer a “mistake,” we conclude that the trial court did not abuse its discretion in determining that the defendant‘s proffered reason for failing to file a timely pleading constituted inexcusable negligence or ignorance of the law. See Purtill v. Cook, 197 Conn. App. 22, 27, 231 A.3d 245 (2020) (court did not abuse its discretion in denying motion to open where “the defendant had appeared and actively participated in pleadings, yet still failed to timely file his answer” (internal quotation marks omitted)); Berzins v. Berzins, 105 Conn. App. 648, 653, 938 A.2d 1281 (2008) (defendant‘s failure to appear was result of negligence where “[t]he defendant was served with notice of [the] action and did nothing“), cert. denied, 289 Conn. 932, 958 A.2d 156 (2008); Fontaine v. Thomas, 51 Conn. App. 77, 83, 720 A.2d 264 (1998) (“[A]lthough the defendant had actual notice of the pending case . . . he failed tо take any action . . . . [Although] his mistaken perception of what steps he had to take [may have] prevented him from defending, his error does not constitute a mistake . . . .“); see also 47 Am. Jur. 2d 51-52, Judgments § 659 (2017) (” ’ [M]istake,’ ‘inadvertence,’ and ‘excusable neglect’ warranting relief from judgment require some justification for an error beyond mere carelessness or ignorance of the law on the part of the litigant or his or her attorney. Moreover, mistake of law does not constitute grounds to set aside a judgment due to mistake, inadvertence, surprise, or excusable neglect.” (Footnote omitted.)).
Having determined that the defendant‘s motion fails under the second prong of
We therefore conclude that the court did not abuse its discretion in denying the defendant‘s motion to open the judgment.
The judgment is affirmed.
In this opinion the other judges concurred.