REVERSE MORTGAGE SOLUTIONS, INC. v. WIDOW(ER), HEIR(S) AND/OR CREDITORS OF THE ESTATE OF BERYL E. ROWLAND ET AL.
(AC 47141)
Appellate Court of Connecticut
Argued November 18, 2024-officially released April 1, 2025
Bright, C. J., and Moll and Seeley, Js.
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Syllabus
The defendants A and T, the sole heirs of the estate of their grandmother, the decedent, appealed from the trial court‘s judgment denying their motion to open the judgment of foreclosure by sale rendered for the plaintiff on certain real property owned by the decedent. The defendants claimed that the trial court abused its discretion by denying their motion to open without holding a hearing. Held:
The defendants had standing to appeal to this court from the trial court‘s denial of their motion to open, as, although they were not named individually in the foreclosure action, the plaintiff designated the heirs of the decedent as party defendants to the foreclosure action and, therefore, the defendants were parties to the underlying action pursuant to statute (
The trial court did not abuse its discretion by denying the motion to open without holding a hearing, the defendants having failed to assert that a good defense existed at the time the judgment of foreclosure by sale was rendered as required by statute (
Argued November 18, 2024-officially released April 1, 2025
Action to foreclose a mortgage on certain real property, and for other relief, brought to the Superior Court in the judicial district of Danbury, where the named defendant et al. were defaulted for failure to appear; thereafter, Mortgage Assets Management, LLC, was substituted as the party plaintiff; subsequently, the court, Shaban, J., granted the plaintiff‘s motion for a judgment of foreclosure by sale and rendered judgment thereon;*
thereafter, the court, Fox, J., denied the motion to open filed by the defendant Trinity Tatiana Pylypczuk et al., from which the defendant Trinity Tatiana Pylypczuk et al. appealed to this court. Affirmed.
Jonathan W. Fazzino, with whom were Patricia C. Sullivan and, on the brief, Alexander Copp, for the appellants (defendant Trinity Tatiana Pylypczuk et al.).
Benjamin Staskiewicz, with whom, on the brief, was Geoffrey K. Milne, for the appellee (substitute plaintiff).
Opinion
BRIGHT, C. J. In this action to foreclose a reverse mortgage on real property owned by Beryl E. Rowland (decedent), Trinity Tatiana Pylypczuk and Andrew Bryce Pylypczuk (heirs), who are the decedent‘s grandchildren, appeal from the judgment of the trial court denying their motion to open the judgment of foreclosure by sale rendered by the court in favor of the plaintiff, Mortgage Assets Management, LLC, formerly known as Reverse Mortgage Solutions, Inc.1 On appeal, the heirs claim that the court abused its discretion by denying their motion to open without a hearing. We disagree and, accordingly, affirm the judgment of the trial court.
The record reveals the following relevant facts and procedural history. On March 11, 2015, the decedent executed a home equity conversion note and mortgage, granting the plaintiff a mortgage on her property located at 211 Long Ridge Road in Danbury (property) to secure future advances on a loan not to exceed $367,500. Pursuant to the note and mortgage, the decedent‘s death was the maturity event that allowed the plaintiff to demand immediate payment of all outstanding principal and interest due under the loan. After the decedent died on December 20, 2020, the plaintiff, pursuant to the terms of the note, accelerated payment of the debt and commenced the underlying foreclosure action in October, 2021. The plaintiff named as defendants “the widow(er), heir(s), and/or creditors of the Estate of Beryl E. Rowland” (unknown defendants) and Andrew Pylypczuk (Andrew), the decedent‘s son and the father of the heirs.2 In the two count complaint, the plaintiff sought foreclosure of the mortgage on the property (count one) and reformation of the mortgage to correct an error in the property description (count two). The plaintiff alleged that, as of August 26, 2021, the amount due and owing on the note was $50,921.19, plus interest, fees, and collection costs.
Appended to the summons was a “first order of notice in foreclosure action” form, which reflected that the court had found that the addresses of the unknown defendants
On June 28, 2022, the plaintiff filed an affidavit of online publication of legal notice and a motion for a finding that no further notice was required as to the unknown defendants. In that motion, the plaintiff‘s counsel represented that the plaintiff had provided notice of the action by publication on the Judicial Branch website from October 22 through November 5, 2021, pursuant to the court‘s order of notice. The court, Shaban, J., granted the motion on July 11, 2022. On July 26, 2022, the plaintiff filed a supplemental marshal‘s return of service dated December 15, 2021, which provided that the certified letter she had sent to Andrew in Baltimore had been returned to the marshal by the postal service and had been marked as ” ‘Unable to Forward/For Review’ and ‘Return to Sender, Not Deliverable as Addressed, Unable to Forward.’ ” On August 31, 2022, the court granted the plaintiff‘s motions for default for failure to appear against the unknown defendants and Andrew.3
On February 3, 2023, the plaintiff filed a motion for judgment of strict foreclosure and a finding of entitlement of possession, requesting that the court reform the mortgage to incorporate the correct description of the property and make a finding that the plaintiff is entitled to possession of the property. The plaintiff later filed appraisals,4 foreclosure worksheets, and the required foreclosure affidavits. On April 19, 2023, the plaintiff filed the operative amended complaint, which did not alter the substance of the original complaint.5 On July 24, 2023, after reviewing the updated affidavit of debt filed on July 21, 2023, the court, Shaban, J., rendered a judgment of foreclosure by sale. The court (1) found that the outstanding debt, including attorney‘s fees, was $82,668.91 and that the fair market value of the property was $393,000; (2) appointed a foreclosure committee (committee); (3) set a sale date for November 11, 2023; and (4) ordered that notice of the sale be published in the Danbury News Times on November 3 and 10, 2023. On August 9, 2023, the plaintiff filed a notice of entry of judgment of foreclosure
On November 8, 2023, three days before the sale, the heirs appeared through counsel and filed a “motion to open and vacate judgment or, in the alternative, open and extend sale date” (motion to open) and a caseflow request for “an emergency hearing” on their motion to open before the sale date. In their motion to open, they represented that the decedent‘s only child, Andrew, “died in the state of Maryland in 2021, on information and belief prior to the institution of this action,” leaving the heirs as the sole living heirs of the decedent. They also represented that they did not receive notice of the foreclosure action until November 6, 2023. They stated that, “[b]ecause the only named defendant ([Andrew]) in this action is deceased, and the [heirs] only recently received notice of it, the [heirs] request that the court open and vacate the judgment, or, in the alternative, open and extend the sale day for a period of four months so that the [heirs] can arrange for a private sale of the [property] or payment of the subject mortgage. . . . Because there is significant equity in the [property], the plaintiff will not be prejudiced by the granting of this motion.” The heirs also filed a motion to intervene as defendants and a suggestion of death as to Andrew, representing that they are the natural children of Andrew and thus the sole living heirs of the decedent.
On November 9, 2023, the plaintiff filed an objection to the heirs’ motion to open and request for a hearing, arguing that, “[e]ven if the sale occurs, the motion [could] be heard after the sale, since the defendant‘s right to redeem would only be foreclosed out by the approval of the sale, not the occurrence of the sale itself.” It further argued that the heirs failed to show good cause to open the judgment and that “allowing the sale to proceed (especially [when] the vast majority of the costs for [the sale had] been incurred) would be equitable as it may give the court and the parties more information to ensure a correct resolution, while canceling the sale would have the opposite effect-nullifying those expenses and efforts for a potential benefit that [may] not be achieved based on information not currently known.”
That same day, the court, Fox, J., without a hearing, denied the motion to open and declined to extend the sale date. The court further ordered that “the committee may conduct the sale, but any motion to approve the sale [must] not be filed until after the expiration of the appeal period . . . .” A third party was the successful bidder at the ensuing foreclosure sale on November 11, 2023, and the heirs filed the present appeal on November 28, 2023.
On February 23, 2024, the plaintiff filed a motion to terminate the appellate stay pursuant to Practice Book § 61-11 (e), arguing that the appeal was taken solely for the purpose of delay and that the due administration of justice required that the stay be terminated. It argued that it is unlikely that the heirs would prevail on appeal because they failed to “present [any] cause to open the judgment” and because it appeared that the heirs lacked standing to appeal because the court did not rule on their motion to intervene. The heirs filed an opposition to the motion to terminate stay on March 6, 2024, representing that the decedent “executed a 2014 will . . . leaving the residue of her estate to Andrew (75 percent) and [the heirs] (25 percent).” They argued that the foreclosure action was void ab initio as brought against a deceased person because Andrew had died before this action was commenced. The Office of the Appellate Clerk forwarded the motion and opposition to the trial court, and the court held a hearing on
While the motion for review was pending before this court, the plaintiff filed a motion to dismiss the heirs’ appeal, arguing that they lack standing to appeal. The heirs filed an opposition to the motion to dismiss, claiming that, as the decedent‘s heirs, they have standing pursuant to
I
We begin, as we must, with the threshold issue of whether the heirs are parties to the underlying action pursuant to
Appellate jurisdiction is governed by
Our Supreme Court has “interpreted the party requirement of
In its supplemental memorandum, the plaintiff claims that
Whether the heirs are parties to the foreclosure action pursuant to
Our analysis begins with the text of
The meaning of
In the present case, in accordance with
provides no support for such an interpretation.8 Accordingly, we conclude that the heirs are parties to the underlying action pursuant to
II
As to the merits, the heirs claim that the court abused its discretion by denying their motion to open without a hearing. We disagree.
“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. . . . 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.” (Citation omitted; internal quotation marks omitted.) Crossing Condominium Assn., Inc. v. Miller, 228 Conn. App. 431, 439, 325 A.3d 326 (2024).
A motion to open a judgment upon default is governed by
part showing that (1) a good defense existed at the time an adverse judgment was rendered; and (2) the defense was not at that time raised by reason of mistake, accident or other reasonable cause. . . . The party moving to open a default judgment must not only allege, but also make a showing sufficient to satisfy the two-pronged test [governing the opening of default judgments]. . . . [B]ecause the movant must satisfy both prongs of this analysis, failure to meet either prong is fatal to its motion.” (Internal quotation marks omitted.) Nationstar Mortgage, LLC v. Giacomi, 226 Conn. App. 467, 479, 319 A.3d 794 (2024).
On appeal, the heirs argue that the motion to open “raised two main issues: the [heirs] did not have notice of the action and the judgment was potentially improper as to [Andrew], who passed away in 2021. . . . Both issues raised in the motion depended on disputed issues of fact requiring a trial-like hearing.” As to their own lack of notice, the heirs argue that they would have presented “evidence that: (1) they received no actual notice of the action, (2) their identities and addresses were easily obtainable from public record[s] and they should not have been served via publication, and (3) [although] compliance with an order of notice is prima facie evidence that no further reason for delay exists, the presumption would have been rebutted, and the [heirs] should have been given the chance to argue for an extension of the sale date.” (Footnote omitted.) As to the “potentially improper” service of process for Andrew, the heirs argue that they “would have presented evidence that the address at which service was sent . . . was not [Andrew‘s] usual place of abode, and
thus the action was not properly commenced prior to his death.”
The plaintiff responds that the heirs waived any claim as to improper service of process by filing an appearance without filing a timely motion to dismiss and that the motion to open failed to comply with
As an initial matter, we reject the heirs’ claim that the plaintiff waived its objection to their alleged failure to comply with
We also are not persuaded that the heirs raised a jurisdictional claim in their motion to open that would obviate the need to comply with the procedural requirements in
In Weinstein & Wisser, P.C., more than five years after the court rendered judgment for the plaintiff upon the defendant‘s default for failing to enter an appearance, the defendant filed a motion to dismiss for lack of personal jurisdiction due to insufficient service of process. Id., 176. “The defendant attached an affidavit to his motion in which he averred that he had not resided at . . . the address at which service had been made, at any time on or before the date of purported service of process.” Id. “[T]he defendant also filed a motion to open the default judgment ‘on the ground that the court did not have jurisdiction over [the defendant] due to insufficiency of service of process (Practice Book § 10-31 [a] [5]) for the reasons articulated in his motion to dismiss.’ ” Id., 177. The trial court denied the motion to open on the ground that the defendant failed to show that a good defense existed at the time judgment was rendered, and it “denied the motion to dismiss, on the ground that the case would have to be opened before it could consider the motion to dismiss.” Id., 177-78.
On appeal to this court, the defendant claimed that “the court erred in treating his motion to open as a standard motion to [open] and in analyzing his claim solely under
In the present case, by contrast, the heirs neither filed a motion to dismiss to challenge the court‘s jurisdiction nor sought dismissal of the action in their motion to open. See Practice Book § 10-30 (b) (“[a] defendant, wishing to contest the court‘s jurisdiction, shall do so by filing a
Turning to the merits of the motion to open, we conclude that the heirs failed to assert that a good defense existed at the time that judgment was rendered. Although the heirs argue on appeal that “they should not have been served via publication” because “their identities and addresses were easily obtainable from public record[s],” that allegation is absent from their motion to open. Also absent from their motion to open is any allegation that notice had not been sent to Andrew‘s usual place of abode. Instead, the heirs stated that they “did not receive notice of the institution of this action until two days ago, on November 6, 2023,” and that Andrew “died in the state of Maryland in 2021, on information and belief prior to the institution of this action.” Neither of these statements constitute a good defense to the court‘s jurisdiction. Thus, the court reasonably could have concluded that the motion to open failed to satisfy the first prong under
The judgment is affirmed.
In this opinion the other judges concurred.