Opinion
The defendants, Keith D. Bok and Randee Ganser-Bok,
The following facts and procedural history are relevant to our resolution of this appeal. The plaintiff initiated the action underlying this appeal, and, on February 9, 2011, filed a complaint in which it sought to foreclose a mortgage on a property located at 150 Arbor Drive in Fairfield (property). According to the complaint, the defendants borrowed $400,000 from the plaintiff, which they secured with a mortgage on the property.
On July 14, 2011, the clerk of the court granted the plaintiffs motion for default for failure to plead and stated in the order that “[n]o responsive pleadings [had] been filed on behalf of [the] defendants.” On September 21, 2011, the plaintiff filed a motion for judgment of strict foreclosure. A hearing on the motion for judgment was held on October 11, 2011. On the same day, the defendants filed an answer to the revised complaint and an objection to the plaintiffs motion for judgment. In their objection, the defendants claimed that the default for failure to plead entered against them was erroneous and should be vacated because, prior to the entry of default, they had filed a responsive pleading— the request to revise—on July 8, 2011, in response to which the plaintiff had filed a revised complaint on July 12, 2011.
The defendants claim that it was error for the court to grant the plaintiffs motion for judgment of strict foreclosure because the judgment was predicated on an erroneously entered default. Specifically, they claim that the clerk of the court improperly entered a default for failure to plead against them after they had filed a request to revise the plaintiffs complaint.
“The standard of review of a judgment of foreclosure by sale or by strict foreclosure is whether the trial court abused its discretion. ... 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.) Webster Trust v. Mardie Lane Homes, LLC,
“General Statutes § 52-119 provides that [p]arties failing to plead according to the rules and orders of the court may be . . . defaulted .... Section 10-18 of our rules of practice essentially mirrors that language. We read the plain and unambiguous language of both § 52-119 and Practice Book § 10-18 as empowering the court with the discretionary authority
“[T]here is [however] support for the proposition that a court commits 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.” Id., 662. General Statutes § 52-121 (a) provides in relevant part: “Any pleading in any civil action may be filed after the expiration of the time fixed by statute or by any rule of the court until the court has heard any motion for judgment by default . . . for failure to plead which has been filed in writing with the clerk of the court in which the action is pending.” Moreover, “[o]ur Supreme Corut has expressed a policy to bring about a trial on the merits of a dispute whenever possible to secure for the litigant his day in court.” (Internal quotation marks omitted.) Connecticut Light & Power Co. v. St. John,
Practice Book § 17-32 (a) provides: “Where a defendant is in default for failure to plead pursuant to [Practice Book §] 10-8, the plaintiff may file a written motion for default which shall be acted on by the clerk not less than seven days from the filing of the motion, without placement on the short calendar.” Practice Book § 17-32 (b) provides in relevant part: “If a claim for a hearing in damages or a motion for judgment has been filed the default may be set aside only by the judicial authority.” Practice Book § 10-6 provides that a defendant’s request to revise
“Since the effect of a default is to preclude the defendant from making any further defense in the case so far as liability is concerned, the judicial authority, at or after the time it renders the default, notwithstanding Section 17-32 (b), may also render judgment in foreclosure cases . . . provided the plaintiff has also made a motion for judgment and provided further that any necessary affidavits of debt or accounts or statements verified by oath, in proper form, are submitted to the judicial authority.” Practice Book § 17-33 (b). “[A] default admits the material facts that constitute a cause of action . . . and entry of default, when appropriately made, conclusively determines the liability of a defendant.” (Emphasis in original; internal quotation marks omitted.) Connecticut Light & Power Co. v. St. John, supra,
In Connecticut Light & Power Co. v. St. John, supra,
Turning to the facts of the present case, we first address the form in which the defendants’ claim was presented to the court. As the plaintiff correctly notes, under our rules of practice, a motion to set aside a default pursuant to Practice Book § 17-42 is the appropriate procedural vehicle for challenging an improper default when no judgment has been rendered. The defendants’ claim was presented in a filing labeled as an “objection to motion for judgment.” Despite its label, however, the “objection” clearly raised the issue of the erroneous default and requested that it be vacated. Although the defendants did not file their claim in a properly labeled motion to set aside the default pursuant to § 17-42, we look to the substance of the claim rather than the form in which it was raised. See Whalen v. Ives,
In their “objection,” the defendants argued that the motion for judgment was objectionable because it was predicated on a default that had been erroneously entered against them by the clerk of the court. They argued that it was error for the clerk to have defaulted them for failure to plead on July 14, 2011,
We now consider the merits of the defendants’ claim. Because a default admits the material facts that constitute a cause of action, the entry of default conclusively determines the liability of a defendant, but only when the entry of default has been appropriately made. Connecticut Light & Power Co. v. St. John, supra,
The judgment is reversed and the case is remanded for further proceedings according to law.
In this opinion the other judges concurred.
Notes
The plaintiff also named JP Morgan Chase Bank, N.A., as a defendant and alleged that it claimed an interest in the property by virtue of a mortgage that was subsequent and subordinate to the plaintiffs mortgage. JP Morgan Chase Bank, N.A., was defaulted for failure to appear on May 20, 2011, and is not a party to this appeal. Accordingly, all references to the defendants in this opinion are to Keith D. Bok and Randee Ganser-Bok.
The defendants initially conveyed the property by way of the mortgage deed dated December 23,2004, to Mortgage Electronic Registration Systems, Inc., as nominee for the plaintiff. The mortgage subsequently was assigned to the plaintiff.
The motion also included specific references to the docket entry of the request to revise.
The plaintiff does not dispute the defendants’ claim that the clerk of court erred by entering a default for failure to plead against them and expressly acknowledges in its brief before this court that the clerk erred by entering the default.
The defendants also claim that their filing of an answer to the plaintiffs revised complaint prior to the hearing on the plaintiffs motion for judgment of strict foreclosure cured any harm from their delay in pleading. Because we conclude that the defendants’ request to revise cured the defect complained of in the plaintiffs motion for default for failure to plead, we need not address the effect of the defendants’ answer to the revised complaint.
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. . . .”
The plaintiff also argues that because the defendants failed to appear at the hearing on its motion for judgment, the defendants waived their right to challenge the default and judgment of strict foreclosure on appeal. While the defendants may have waived their right to argue their objection before the court by failing to appear at the hearing; see Practice Book § 11-18 (d); to the extent that the plaintiff claims that the defendants abandoned the merits of their claim for purposes of appeal, we reject the plaintiffs argument. The defendants clearly raised the invalidity of the default against them in the objection, and the court explicitly acknowledged the claim of error during the hearing on the plaintiffs motion for judgment and subsequently ruled on the objection, concluding that it was moot in light of its judgment. Moreover, the court hadbefore it everything it required to evaluate the defendants’ claim and no claim has been made that the court was unable to decide the issue in the absence of argument from the defendants. Accordingly, we conclude that the defendants sufficiently have preserved their claim for our review.
Practice Book § 10-35 provides in relevant part: “Whenever any party desires to obtain (1) a more complete or particular statement of the allegations of an adverse party’s pleading . . . the party desiring any such amendment in an adverse party’s pleading may file a timely request to revise that pleading.”
This court specifically rejected the plaintiffs argument that the defendants’ motion was procedurally defective because it did not set forth any reasons as to why they failed to appear at the hearing in damages and stated that because the court defaulted the defendants for failing to revise their counterclaims, “their failure to appear at the hearing in damages was irrelevant to the issue of whether to open the default judgment.” Connecticut Light & Power Co. v. St. John, supra,
The defendants’ objection states that the clerk entered the default for failure to plead on July 12. This appears to be a typographical error and does not change the substance of the defendants’ claim.
Practice Book § 10-8 provides in relevant part: “Commencing on the return day of the writ, summons and complaint in civil actions, pleadings, including motions and requests addressed to the pleadings, shall first advance within thirty days from the return day, and any subsequent pleadings, motions and requests shall advance at least one step within each successive period of fifteen days from the preceding pleading or the filing of the decision of the judicial authority thereon if one is required, except that ... in actions to foreclose a mortgage on real estate the initial time period shall be fifteen days. . . .”
We note that, on the basis of our review of the record, it appears as though the clerk entirely overlooked the pleading as evinced by the order granting the plaintiffs motion for default, which stated that “[n]o responsive pleadings [had] been filed on behalf of [the] defendants.”
We note that, unlike the defendants in Connecticut Light & Power Co. v. St. John, supra,