84 Conn. App. 204 | Conn. App. Ct. | 2004
Opinion
The defendant, Ellen Lewitt, appeals from the trial court’s judgment of strict foreclosure rendered in connection with a foreclosure action brought by the plaintiff, Provident Bank. On appeal, the defendant claims that the court improperly (1) allowed title in the property to vest in the plaintiff and (2) failed to provide the defendant with adequate notice of the vesting of title and proper certification of the pleadings. The foreclosure decree became absolute on March 13, 2003, and
The plaintiff instituted a mortgage foreclosure action against the defendant’s property in New Britain on February 19, 2002, and a judgment of strict foreclosure entered on April 15, 2002. After the judgment was opened several times, the law day was set for January 13, 2003. On January 9, 2003, the defendant filed a chapter 7 bankruptcy petition. Although not required to do so by any rule, the plaintiff filed a notice of the extension of the law day until March 10, 2003, with the clerk of the Superior Court in response to the defendant’s filing of her bankruptcy petition. Title vested in the plaintiff after the defendant failed to redeem by the extended law day. The plaintiff recorded a certificate of foreclosure on the land records in New Britain on March 13, 2003.
I
The defendant argues that the filing of her chapter 7 bankruptcy petition prior to her law day indefinitely stayed her redemption period by invoking the automatic stay provision of 11 U.S.C. § 362 (a).
In re Canney involved a mortgage foreclosure brought in Vermont under the Vermont statutes. See 12 Vt. Stat. Ann., c. 163, subchapter 6. In In re Canney, the Second Circuit determined that the sixty day stay period set forth in § 108 (b) applied to the passing of the law day rather than the indefinite stay period prescribed in § 362 (a) when a petitioner filed a bankruptcy petition
Although In re Canney concerned strict foreclosure under Vermont’s statutes, our statutory procedures are similar. “Strict foreclosure is the normal method of foreclosure only in Connecticut and Vermont.”
We conclude that the defendant’s period of equitable redemption was not stayed when she filed a chapter 7 bankruptcy petition, although it was extended by sixty days after the filing of the petition. The defendant’s bankruptcy petition was filed on January 9, 2003. The practical effect of § 108 (b) is that the time in which a trustee (or if the bankruptcy petition is dismissed, the
II
The defendant also claims that the court failed to provide her with adequate notice of the vesting of title and proper certification of the pleadings because the documents were sent to the wrong address.
The appeal is dismissed.
In this opinion the other judges concurred.
In light of our decision that the appeal is moot, it is unnecessary to address the plaintiffs claim that the defendant’s appeal is from the trial court’s inaction on her motion for articulation and is therefore not from a final judgment.
Section 362 (a) of title 11 of the United States Code provides in relevant part: “[A] petition filed under section 301, 302, or 303 of this title . . . operates as a stay, applicable to all entities, of . . . (2) the enforcement, against the debtor or against the property of the estate, of a judgment obtained before the commencement of the case under this title; (3) any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate . . . .”
Section 108 (b) of title 11 of the United States Code provides in relevant part: “[I]f ... an order entered in a nonbankruptcy proceeding, or an agreement fixes a period within which the debtor . . . may file any pleading,
Section 108 (b) is contained in chapter 1 of the United States Bankruptcy Code and “[ejxcept as provided in section 1161 [railroad reorganization] of this title, chapters 1, 3, and 5 of this title apply in a case under chapter 7, 11, 12, or 13 of this title.” 11 U.S.C. § 103 (a). Therefore, although the bankruptcy petition in In re Canney was filed under chapter 13, the logic of the decision applies to the chapter 7 bankruptcy petition in this case.
“Strict foreclosure does not involve a foreclosure sale. Upon the borrower’s default, the court will normally set a time period in which the borrower may pay off or redeem the mortgage debt. If the borrower fails to do so in the allotted time, the lender is given an immediate right to possession of the property.” (Internal quotation marks omitted.) In re Canney, supra, 284 F.3d 368-69 n.6.
Although the defendant contends that she has not lived at 156 Stanwood Drive in New Britain, the address to which the pleadings for this case were sent, for approximately thirty years, that is the address that a Connecticut state marshal found to be her abode after investigating and finding that the defendant no longer lived at the address on the original summons. The defendant never offered evidence as to her place of residence.