Seminole Realty, LLC v. Sekretaev ( 2019 )

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SEMINOLE REALTY, LLC v. SERGEY SEKRETAEV
(AC 42349)
Lavine, Prescott and Eveleigh, Js.
Syllabus
The plaintiff sought to foreclose a mortgage on certain real property owned
by the defendant. The trial court rendered a judgment of strict foreclo-
sure, from which the defendant appealed to this court, which affirmed
the judgment and remanded the case to the trial court for the purpose
of setting a new law day. Thereafter, the plaintiff filed a motion to open
and a notice of hearing to reset the law day, but before the hearing could
be held, the defendant filed a bankruptcy petition, which automatically
stayed the foreclosure proceedings. The bankruptcy court then granted
the plaintiff’s motion for relief from the automatic bankruptcy stay. The
defendant appealed to the federal district court, which affirmed the
bankruptcy court’s order, concluding that the defendant, who had filed
four bankruptcy petitions during the course of the foreclosure proceed-
ings, had engaged in the serial filing of bankruptcy petitions to benefit
from the automatic bankruptcy stays and to delay, hinder, or defraud
his creditors. On the basis of that decision, the plaintiff sought to have
the law day reset, but, on May 24, 2018, the defendant filed a fifth
bankruptcy petition. The parties subsequently appeared at a hearing
before the trial court, at which the court, by agreement of the parties,
opened the judgment of strict foreclosure, set a new law day of August
15, 2018, and made updated findings regarding the value of the property
for redemption. Thereafter, the defendant moved in the bankruptcy
court to extend the automatic bankruptcy stay. On July 10, 2018, the
bankruptcy court granted the defendant’s motion and suspended for
sixty days the relief from the stay it previously had granted to the
plaintiff. In September, 2018, the bankruptcy court vacated the suspen-
sion of and reimposed the plaintiff’s relief from the stay. The plaintiff
then filed in the trial court an application and execution for ejectment,
in response to which the defendant objected and filed a motion for a
stay of execution of ejectment. The trial court overruled the defendant’s
objection and denied his motion for a stay, concluding that he had
agreed to the law day of August 15, 2018, title had passed to the plaintiff
the next day, and there was an insufficient basis to impose a stay.
Thereafter, the trial court issued an execution of ejectment, and the
defendant appealed to this court. Held that the trial court did not abuse
its discretion in granting the plaintiff’s application and execution for
ejectment and denying the defendant’s motion for a stay of the execution
for ejectment: although this court disagreed with the trial court’s conclu-
sion that title passed to the plaintiff on August 16, 2018, this court
concluded that the automatic stay provision of the United States Bank-
ruptcy Code (11 U.S.C. § 362 [a]) does not indefinitely stay the period
of equitable redemption and that the effect of the bankruptcy court’s
order suspending the relief from the bankruptcy stay for sixty days was
to extend the law day of August 15, 2018, by sixty days, and because
the defendant failed to redeem by the time the sixty day extended period
had lapsed on October 15, 2018, titled vested in the plaintiff on October
16, 2018, and the defendant no longer had any right or interest in the
property; moreover, the trial court’s finding that the defendant had
agreed to the law day of August 15, 2018, was supported by the transcript
of the hearing, and that factual finding, which was predicated on a
credibility determination, was within the exclusive province of the trial
court to make.
Argued May 28—officially released September 10, 2019
Procedural History
Action to foreclose a mortgage on certain of the
defendant’s real property, and for other relief, brought
to the Superior Court in the judicial district of Windham,
where the defendant filed a counterclaim; thereafter,
the court, Boland, J., rendered judgment of strict fore-
closure and judgment in part for the defendant on the
counterclaim, and the defendant appealed to this court,
which affirmed the judgment of the trial court; subse-
quently, the court, Cole-Chu, J., opened the judgment
and rendered a modified judgment of strict foreclosure;
thereafter, the court, Cole-Chu, J., overruled the defen-
dant’s objection to the plaintiff’s proposed execution
of ejectment, and the defendant appealed to this court;
thereafter, the plaintiff filed a motion to dismiss the
appeal. Appeal dismissed in part; affirmed.
Sergey Sekretaev, self-represented, the appellant
(defendant).
Christine S. Synodi, for the appellee (plaintiff).
Opinion
LAVINE, J. The present appeal has its genesis in a
foreclosure action commenced by the plaintiff, Semi-
nole Realty, LLC, in 2010. This court affirmed the 2014
judgment of strict foreclosure rendered against the self-
represented defendant, Sergey Sekretaev,1 in Seminole
Realty, LLC v. Sekretaev, 162 Conn. App. 167, 169, 131
A.3d 753 (2015), cert. denied, 320 Conn. 922, 132 A.3d
1095 (2016). Since that time, the defendant has filed at
least five federal bankruptcy petitions and taken one
bankruptcy appeal. The defendant’s present appeal is
from the trial court’s judgment overruling his objection
to the plaintiff’s proposed execution of ejectment and
denying his emergency motion for a stay of ejectment.
On appeal, the defendant has raised numerous claims,2
but only two of them have not been raised previously,
namely, that the trial court (1) abused its discretion by
overruling his objection to the execution of ejectment
and denying his emergency motion for a stay of execu-
tion of ejectment because title has not yet vested in
the plaintiff and (2) erred in finding that his claims
of financial and emotional damages were not of the
plaintiff’s making.3 We conclude that title vested in the
plaintiff when the defendant failed to redeem his inter-
est in the subject property following the sixty day exten-
sion of the law day. We, therefore, affirm the judgment
of the trial court as to the propriety of the order of
ejectment and as to the denial of the defendant’s emer-
gency motion for a stay, and dismiss the remainder of
the appeal for lack of subject matter jurisdiction. See
footnote 2 of this opinion.
The following convoluted procedural history under-
lies the present appeal. In April, 2009, the defendant
purchased a condominium unit located in Sterling
(property) and executed a note in the amount of
$136,995 that was secured by a mortgage in favor of
the plaintiff. Id., 171. The defendant failed to make all
of the required monthly interest payments on the debt
and to pay the entire principal on April 24, 2010, pursu-
ant to the note. Id., 171–72. The plaintiff filed a lis
pendens on the property in the Sterling land records
in June, 2010, and commenced an action to foreclose
on the property in August, 2010. The defendant chal-
lenged the plaintiff’s standing to bring the foreclosure
action numerous times, denied the allegations of the
complaint, and pleaded several special defenses and a
three count counterclaim against the plaintiff. Id., 180,
193. The case was tried in September and October, 2014.
Id., 170. The court, Boland, J., found that the defendant
was liable to the plaintiff in the amount of $181,254.45
and rendered a judgment of strict foreclosure. Id., 186.
The court set the law day as December 1, 2014. Id. The
defendant appealed to this court, which affirmed the
judgment of strict foreclosure in December, 2015; id.,
167; and our Supreme Court denied the defendant’s
petition for certification to appeal.4 Seminole Realty,
LLC v. Sekretaev, 320 Conn. 922, 132 A.3d 1095 (2016).
In February, 2014, while the foreclosure case was
pending, the defendant filed a petition under chapter
13 of the United Stated Bankruptcy Code; see 11 U.S.C.
§ 1301 et seq. (2012); but voluntarily withdrew the peti-
tion on February 20, 2014. In April, 2014, the defendant
filed a second chapter 13 petition, which the bankruptcy
court dismissed with prejudice. In addition, the bank-
ruptcy court barred the defendant from filing a further
bankruptcy petition for 180 days. In November, 2014,
the defendant filed a voluntary petition under chapter
7 of the United States Bankruptcy Code; see 11 U.S.C.
§ 701 et seq. (2012); and a motion to avoid a lien on
the property, which the bankruptcy court denied. The
chapter 7 bankruptcy case was closed in March, 2015,
without discharging the debt underlying the strict fore-
closure judgment.
On May 6, 2016, the plaintiff filed a motion to open
the judgment of strict foreclosure for the purpose of
resetting the law day. Before a hearing could be held,
the defendant filed a motion to open the chapter 7
bankruptcy case. On October 19, 2016, the bankruptcy
court denied the defendant’s motion to open on numer-
ous grounds, including the absence of good cause, res
judicata, and collateral estoppel.
On January 27, 2017, the plaintiff filed a notice of
hearing to be held on February 14, 2017, to reset the
law day, but, before the hearing could be held, the
defendant filed another chapter 13 petition in bank-
ruptcy. On June 5, 2017, the bankruptcy court granted
the plaintiff’s motion for relief from the bankruptcy
stay. The plaintiff was granted in rem relief5 as to the
then pending chapter 13 petition and in subsequent
petitions the defendant may file within two years. The
bankruptcy court found that the plaintiff had a secured
‘‘interest in the property’’ and that the defendant’s ‘‘peti-
tion was part of a scheme to delay, hinder, or defraud
creditors that involved multiple bankruptcy filings
affecting the [p]roperty pursuant to 11 U.S.C. § 364 (d)
(4) (B) . . . .’’6
On June 16, 2017, the defendant appealed the bank-
ruptcy court’s in rem order to the federal district court.
The district court denied the defendant’s motion for a
stay pending appeal. On May 8, 2018, the district court
affirmed the bankruptcy court’s order granting the
plaintiff in rem relief from the automatic bankruptcy
stay. See In re Sekretaev, United States District Court,
Docket No. 3:17-CV-00997 (AVC) (D. Conn. May 8, 2018).
In addition, the district court stated that the defendant
‘‘engaged in the serial filing of bankruptcy proceedings
by filing four bankruptcy proceedings, during and after
the foreclosure proceeding in state court, to benefit
from the automatic stay afforded by the filing of a bank-
ruptcy petition.’’7 Moreover, during the period when he
was barred from filing further bankruptcy petitions, the
district court found that the defendant filed numerous
motions in the Superior Court, which further delayed
the proceedings.
Despite the plaintiff’s in rem relief that was then in
effect, on May 24, 2018, the defendant filed yet another
chapter 13 petition in bankruptcy. On the basis of the
district court’s decision affirming the in rem relief
ordered by the bankruptcy court, the plaintiff sought
to have the law day reset. On June 1, 2018, the parties
appeared before the trial court, Cole-Chu, J., and agreed
to open the 2014 strict foreclosure judgment, to a revised
judgment of strict foreclosure valuing the property at
$55,000 for redemption, and to a law day of August
15, 2018.8
Despite the in rem relief granted to the plaintiff, on
June 6, 2018, the defendant filed a motion to extend
the automatic bankruptcy stay, which the bankruptcy
court denied without prejudice on June 22, 2018. On
June 13, 2018, the defendant filed a chapter 13 repay-
ment plan. The defendant filed a second motion to
extend the automatic stay on June 26, 2018. On July
10, 2018, the bankruptcy court extended the automatic
stay and suspended its in rem order for sixty days to
allow the defendant an opportunity to confirm a good
faith plan.9 On July 11, 2018, to protect its interest,
the plaintiff filed a proof of claim and objected to the
feasibility of the defendant’s chapter 13 plan.10 On July
17, 2018, the bankruptcy trustee filed an objection to
the defendant’s claim of exemptions and proposed
order. The bankruptcy court held a hearing on August
30, 2018. On September 18, 2018, the bankruptcy court
reimposed the plaintiff’s in rem relief from the auto-
matic bankruptcy stay and ordered that the plaintiff
may proceed with the in rem relief it was previously
accorded.11 On November 26, 2018, the defendant filed
a motion in the bankruptcy court titled ‘‘Motion under
Federal Rule of Civil Procedure, Rule 60 (b) (6) and 60
[b] (4),’’ seeking relief from a judgment or order.12 On
November 29, 2018, the bankruptcy court denied the
defendant’s motion for relief of said order.13
The plaintiff filed an application and execution for
ejectment, to which the defendant objected and filed
an emergency motion for a stay of execution of
ejectment. The clerk issued an execution of ejectment
on November 29, 2018. The defendant objected to the
execution of ejectment, arguing in part that he had
never agreed to a law day of August 15, 2018. On Novem-
ber 28, 2018, Judge Cole-Chu overruled the objection
and denied the defendant’s motion for a temporary stay
of the execution of ejectment, stating that there was
an insufficient basis for the requested stay. The court
stated that the defendant had agreed to the law day of
August 15, 2018,14 and concluded that title passed to
the plaintiff the next day. Moreover, the court stated
that the defendant’s motion for a stay did not represent
that a bankruptcy stay was in effect, and the court
‘‘perceive[d] no basis to expect a new bankruptcy stay
based on a good faith bankruptcy filing.’’ The defendant
filed the present appeal on December 4, 2018.15
‘‘In Connecticut, a mortgagee has legal title to the
mortgaged property and the mortgagor has equitable
title, also called the equity of redemption. . . . The
equity of redemption gives the mortgagor the right to
redeem the legal title previously conveyed by per-
forming whatever conditions are specified in the mort-
gage, the most important of which is usually the pay-
ment of money. . . . Under our law, an action for strict
foreclosure is brought by a mortgagee who, holding
legal title, seeks not to enforce a forfeiture but rather to
foreclose an equity of redemption unless the mortgagor
satisfies the debt on or before his law day. . . . Accord-
ingly, [if] a foreclosure decree has become absolute by
the passing of the law days, the outstanding rights of
redemption have been cut off and the title has become
unconditional in the plaintiff, with a consequent and
accompanying right to possession. The qualified title
which the plaintiff had previously held under his mort-
gage had become an absolute one.’’ (Citation omitted;
internal quotation marks omitted.) Sovereign Bank v.
Licata, 178 Conn. App. 82, 97, 172 A.3d 1263 (2017).
The defendant claims that the court improperly over-
ruled his objection to the execution of ejection, arguing
that title did not pass to the plaintiff on August 16, 2018.
In support of his claim, the defendant argues that (1)
he did not voluntarily agree to the August 15, 2018 law
day and (2) General Statutes § 49-15 (2) (b) automati-
cally opened the judgment of strict foreclosure.
Although we disagree with the defendant’s claims that
he did not agree to the August 15, 2018 law day and
that § 49-15 (2) (b) automatically opened the judgment
of strict foreclosure, we agree that title to the property
did not vest in the plaintiff on August 16, 2018. The
question at the heart of this appeal is the effect of the
bankruptcy court’s suspension of the plaintiff’s in rem
relief for sixty days. We conclude that the bankruptcy
court’s suspension of the plaintiff’s in rem relief
extended the law day for sixty days and, therefore, title
vested in the plaintiff on October 16, 2018, due to the
defendant’s failure to redeem. See Provident Bank v.
Lewitt, 84 Conn. App. 204, 206–209, 852 A.2d 852, cert.
denied, 271 Conn. 924, 859 A.2d 580 (2004); see also 11
U.S.C. § 108 (b). The trial court, therefore, did not abuse
its discretion on November 28, 2018, by overruling the
defendant’s objection to the execution of ejectment or
by denying his emergency motion for a stay.16
‘‘The law governing strict foreclosure lies at the cross-
roads between the equitable remedies provided by the
judiciary and the statutory remedies provided by the
legislature. . . . Because foreclosure is peculiarly an
equitable action . . . the court may entertain such
questions as are necessary to be determined in order
that complete justice may be done. . . . In exercising
its equitable discretion, however, the court must comply
with mandatory statutory provisions that limit the reme-
dies available to a foreclosing mortgagee. . . . It is our
adjudicatory responsibility to find the appropriate
accommodation between applicable judicial and statu-
tory principles. Just as the legislature is presumed to
enact legislation that renders the body of the law coher-
ent and consistent, rather than contradictory and incon-
sistent . . . [so] courts must discharge their responsi-
bility, in case by case adjudication, to assure that the
body of the law—both common and statutory—remains
coherent and consistent.’’ (Internal quotation marks
omitted.) Wells Fargo Bank, N.A. v. Melahn, 148 Conn.
App. 1, 7, 85 A.3d 1 (2014).
Given the convoluted procedural history of this case,
the following timeline will aid in our resolution of the
defendant’s claim:
May 8, 2018, the federal district court affirmed the
bankruptcy court’s two year in rem relief from stay
pursuant to 11 U.S.C. § 364 (d) (4) (B);
May 24, 2018, the defendant filed a chapter 13 petition
in bankruptcy;
June 1, 2018, Judge Cole-Chu opened the 2014 judg-
ment of strict foreclosure, reset the redemption amount,
set a law day of August 15, 2018, and rendered a revised
judgment of strict foreclosure;
June 6, 2018, the defendant filed a motion to lift the
in rem relief in bankruptcy;
July 10, 2018, the bankruptcy court suspended the
plaintiff’s in rem relief for sixty days;
September 18, 2018, the bankruptcy court granted
the plaintiff’s motion to vacate the suspension of in
rem relief;
November 28, 2018, the trial court overruled the
defendant’s objection to the execution of ejectment and
denied his emergency motion for a stay;
November 29, 2018, the execution of ejectment
issued;
December 4, 2018, the defendant appealed to this
court.
In denying the defendant’s emergency motion to stay
the execution of ejectment, Judge Cole-Chu found that
the defendant agreed to the law day of August 15, 2018.
Findings of fact and credibility determinations are
beyond the province of this court, but we cannot ignore
the record, which supports the court’s factual findings
that are predicated on credibility determinations.
Malave v. Ortiz, 114 Conn. App. 414, 428, 970 A.2d 743
(2009). Our review of the transcript of the June 1, 2018
hearing supports the court’s finding that the defendant
agreed to the August 15, 2018 law day. See footnote 14
of this opinion. The defendant’s claim therefore fails.
The defendant also claims that title to the property
did not vest in the defendant pursuant to § 49-15 (b).17
In asserting this claim, the defendant overlooks the fact
that, at the time he filed the chapter 13 petition in
bankruptcy in May, 2018, the judgment of strict foreclo-
sure at issue was the judgment rendered in 2014, which
was opened on June 1, 2018, when the parties appeared
before Judge Cole-Chu. At that time, the parties agreed
to a new or revised judgment of strict foreclosure with
a law day of August 15, 2018. See footnote 14 of this
opinion. The defendant did not file a petition in bank-
ruptcy subsequent to the entry of the June 1, 2018 judg-
ment of strict foreclosure. The question for this court
to answer, therefore, is the effect of the bankruptcy
court’s suspension of the in rem relief it had afforded
the plaintiff for sixty days on July 10, 2018. The answer
is provided by this court’s decision in Provident Bank
v. Lewitt, supra, 84 Conn. App. 204.
As in Provident Bank, the question here is what effect
a sixty day bankruptcy stay or lifting of the in rem
relief for sixty days has on the running of a law day.
In Provident Bank, the plaintiff argued that her filing
of a chapter 7 bankruptcy petition prior to the running of
her law day indefinitely stayed the period of redemption
pursuant to the automatic stay provision of 11 U.S.C.
§ 362 (a).18 Id., 206. This court disagreed, concluding
that 11 U.S.C. § 108 (b) extended the time for redemp-
tion by only sixty days.19 Id. This court was guided by
‘‘the holding of the United States Court of Appeals for
the Second Circuit in In re Canney, 284 F.3d 362 (2d
Cir. 2002).’’20 Id., 207.21
‘‘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 after judgment had entered
but prior to the passing of the law day in a strict foreclo-
sure action. . . . Agreeing with the United States
Courts of Appeal in the Sixth, Seventh and Eighth Cir-
cuits, the court held that § 108 (b), which provides for
only a sixty day delay in the running of the law day, is
the applicable provision because the automatic stay
provision of § 362 (a) prevents only certain affirmative
acts taken by a creditor, and the running of time is not
one of those acts.’’ (Citation omitted; footnote omitted;
internal quotation marks omitted.) Id., 207–208.
A strict foreclosure ‘‘entails a foreclosure judgment
in favor of the mortgagee that results from a proceeding
against the debtor and leaves the mortgagor with a right
to redeem within a specified time frame, ending with
the law day.’’ Id., 208. Connecticut allows redemption
within a specified time period after which title automati-
cally passes to the mortgagee. In Provident Bank, this
court concluded that the plaintiff’s period of equitable
redemption was not stayed when she filed a chapter 7
petition in bankruptcy, but was extended by sixty days
after she filed her petition. Id., 208. ‘‘The practical effect
of § 108 (b) is that the time in which a trustee (or if
the bankruptcy petition is dismissed, the mortgagor)
may cure a default or perform any other similar act
expires at the end of the period settled for redemption
or sixty days after the order for relief. The commence-
ment of a voluntary bankruptcy case through the filing
of a petition constitutes an order for relief. 11 U.S.C.
§ 301.’’ Id., 208–209.
In the present case, the bankruptcy court and the
federal district court found that the defendant engaged
in the serial filing of bankruptcy proceedings that were
part of a scheme to delay, hinder and defraud the plain-
tiff. Nonetheless, the defendant filed one more chapter
13 petition in bankruptcy in May, 2018, agreed to a
revised judgment of strict foreclosure, and then sought
to have the plaintiff’s in rem relief lifted. On July 10,
2018, the bankruptcy court suspended for sixty days the
in rem relief granted to the plaintiff. The consequence
of the sixty day suspension was to extend the law day
until October 15, 2018. The defendant failed to redeem
at any time prior to October 15, 2018. For the foregoing
reasons, we conclude that the trial court properly
granted the execution of ejectment filed by the plaintiff
and properly denied the defendant’s emergency motion
for a stay.
The appeal is dismissed in part as to the moot claims;
the judgment is affirmed in all other respects.
In this opinion the other judges concurred.
1
Due to a scrivener’s error in the summons, the defendant’s last name
was misspelled, and he is identified in certain of the files of the Judicial
Branch pursuant to the spelling error. His surname, Sekretaev, is spelled
properly in the complaint, mortgage, note, and bankruptcy court documents.
We granted the defendant’s request to waive oral argument. Counsel for
the plaintiff appeared and argued before us.
2
The defendant also claims that the court erred in granting the execution
of ejectment because (1) the underlying mortgage was made in violation of
15 U.S.C. §§ 1639 (b) and (c), (2) he rescinded the underlying mortgage
pursuant to the Truth in Lending Act, 15 U.S.C. § 1601 et seq., (3) the
judgment of strict foreclosure is void, and (4) the court violated Rule 60
(b) (4) of the Federal Rules of Civil Procedure by failing to vacate the
judgment of foreclosure. All of those claims are predicated on the validity
of the underlying mortgage, which the plaintiff argues was adjudicated in
the defendant’s appeal from the judgment of strict foreclosure. See Seminole
Realty, LLC v. Sekretaev, supra, 162 Conn. App. 167. Although we agree
with the plaintiff that the validity of the mortgage was decided in the defen-
dant’s prior appeal, the claims fail because title to the property has vested
in the plaintiff. Accordingly, the claims are moot, and we lack jurisdiction
to consider them.
‘‘Mootness implicates the subject matter jurisdiction of this court. . . .
[I]t is not the province of appellate courts to decide moot questions, discon-
nected from the granting of actual relief or from the determination of which
no practical relief can follow. . . . If no practical relief can be afforded to
the parties, the appeal must be dismissed.’’ (Internal quotation marks omit-
ted.) Chase Manhattan Mortgage Corp. v. Burton, 81 Conn. App. 662, 664,
841 A.2d 248, cert. denied, 268 Conn. 919, 847 A.2d 313 (2004).
3
The defendant’s claim regarding financial and emotional damages also
is moot because title has vested in the plaintiff. See footnote 2 of this opinion.
4
The defendant filed a motion with this court to stay the proceedings
pending a decision by the United States Supreme Court. This court denied
the motion for a stay. The defendant never filed a petition for a writ of
certiorari with the United States Supreme Court.
5
‘‘In 2005, Congress enacted [the Bankruptcy Abuse Prevention and Con-
sumer Protection Act of 2005, Pub. L. No. 109-8, 119 Stat. 23 (2005)], intended
as a comprehensive reform measure to curb abuses and improve fairness
in the federal bankruptcy system.’’ Connecticut Bar Assn. v. United States,
620 F.3d 81, 85 (2d Cir. 2010).
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 property of the estate, of a judgment obtained
before the commencement of the case under this title . . . .’’ The provision
for an automatic stay has a limitation, as set forth in 11 U.S.C. § 362 (c) (4)
(A), which provides in relevant part: ‘‘(i) [I]f a single or joint case is filed
by or against a debtor who is an individual under this title, and if 2 or more
single or joint cases of the debtor were pending within the previous year
but were dismissed . . . the stay under subsection (a) shall not go into
effect upon the filing of the later case; and (ii) on request of a party in
interest, the court shall promptly enter an order confirming that no stay is
in effect . . . .’’ (Emphasis added.)
‘‘On request of a party in interest and after notice and [a] hearing, the
court has the authority to grant relief from the automatic stay by terminating,
annulling, modifying or conditioning the automatic stay. 11 U.S.C. § 362 (d).
The 2005 amendments to the [United States] Bankruptcy Code added [§]
362 (d) (4), which provides bankruptcy judges with statutory authority to
grant in rem relief. See In re Montalvo, 416 B.R. 381, 386 (Bankr.
E.D.N.Y. 2009).
‘‘In rem relief can be granted from the automatic stay as to a secured
creditor’s interest in real property, such that any and all future bankruptcy
filings by any person or entity with an interest in the real property will not
operate as an automatic stay protecting the owner and its successors and
assigns for a period of two years after entry of such order.’’ In re Wilke,
429 B.R. 916, 922 (Bankr. N.D. Ill. 2010).
6
Section 362 (d) (4) (B) of title 11 of the United States Code provides
that a bankruptcy court ‘‘shall grant relief from the stay . . . with respect
to a stay of an act against real property . . . by a creditor whose claim is
secured by an interest in such real property, if the court finds that the filing
of the petition was part of a scheme to delay, hinder, or defraud creditors
that involved . . . multiple bankruptcy filings affecting such real property.’’
7
The district court also stated, with respect to the defendant’s claim that
the plaintiff violated 11 U.S.C. § 524 (a) (1) (2), that ‘‘a secured creditor’s
right to foreclose on the mortgage survives or passes through the bankruptcy
and remains enforceable under state law.’’ (Internal quotation marks
omitted.)
8
The court’s order stated: ‘‘By agreement in open court of the defendant
. . . and of the plaintiff . . . through its attorney of record . . . [the plain-
tiff’s motion] to open the judgment in this case . . . entered October 24,
2014 . . . is GRANTED as follows.
‘‘JUDGMENT of strict foreclosure of . . . certain real property . . . is
hereby granted.
‘‘The fair market value of the subject property is $55,000.
‘‘The debt for purposes of this judgment, and particularly for redemption—
that is, the amount the defendant must pay the plaintiff on or before his
law day, August 15, 2018, to redeem the subject property is $55,000. Attor-
ney’s fees and costs were denied in the original judgment, and the plaintiff
waives any new claim for fees or costs.
‘‘The first (and only) law day is August 15, 2018.
‘‘The parties’ agreement as aforesaid is approved and made the JUDG-
MENT of the court.’’
9
The bankruptcy court’s order also stated: ‘‘During that time the [defen-
dant] is to rectify any deficiencies, promptly provide any missing documents
to the trustee, complete the 341 meeting and advance his plan (and any
amendments) to a confirmation hearing to be held in late August.’’
10
The plaintiff’s ‘‘Motion to Reimpose a Stay and Vacate the Order Provid-
ing [Sixty Days] to Allow [Defendant] to Confirm a Repayment Plan and
Correct Deficiencies and [Plaintiff’s] Objection to Repayment Plan’’
requested that the court vacate its order of July 10, 2018, allowing the
defendant sixty days to affirm a repayment plan regarding the property, and
asked the bankruptcy court to reimpose in rem relief on the ground that
the debtor obtained his extension on the basis of bad faith. The motion
concluded: ‘‘The [plaintiff] further requests that the [i]n [r]em [r]elief from
[s]tay be reinstituted such that the law day in the Superior Court may pass
and the debtor be allowed to redeem in accordance with the [o]rder of the
Superior Court.’’
11
The bankruptcy court’s September 18, 2018 order stated: ‘‘The [c]ourt
finds that the [defendant’s] course of actions in [s]tate [c]ourt and through
these bankruptcy proceedings and related appeals has been abusive, lacking
in merit and good faith and patently intended to impede, delay and interfere
with the course of duly litigated and appealed final judgment of foreclosure.
The material facts delineating this course of action can be found in The
Amended Motion to Vacate . . . and the supportive [s]upplemental filings
. . . . Accordingly, the Amended Motion to Vacate . . . is GRANTED so
Seminole Realty LLC may proceed with the [i]n [r]em relief it was previously
accorded by this [c]ourt. For cause shown including a [defendant’s] lack of
good faith and the absence of plan feasibility and as further articulated in
[o]bjections to [c]onfirmation . . . confirmation of the [defendant’s] [p]lans
is denied with prejudice . . . .’’
12
By filing the motion, the defendant again challenged the validity of the
mortgage and argued that the judgment of strict foreclosure was void. See
footnote 2 of this opinion.
13
The bankruptcy court denied the defendant’s motion for relief, stating
that it was ‘‘redundant and without appropriate cause for further reconsidera-
tion. The [c]ourt concretely and definitively has addressed this request and
its [refiling] is abusive, without merit and in bad faith. As the [defendant’s]
plan has previously been denied confirmation with prejudice, there also is
no bona fide reason to maintain this [c]hapter 13 case and it is accordingly
dismissed. Any further frivolous or duplicative Bankruptcy Court filings will
occasion a hearing on whether the [defendant] shall be sanctioned or held
in contempt of [c]ourt.’’
14
The transcript of the June 1, 2018 hearing before Judge Cole-Chu dis-
closes the following colloquy between the court and the defendant, who
acknowledged a pending petition in bankruptcy.
‘‘The Court: . . . I’m going to go very slowly because this is . . .
important, and I don’t want to leave anything out. The idea, sir, is that you
and the plaintiff, through its counsel, agree that law days will be set at least
two months out. I’ll pick a particular day in a . . . moment if the basic
structure is acceptable. The value of the property for purposes of the rein-
stated judgment would be $55,000 by agreement. And that . . . amount
would be the—very particularly, that amount, not the face amount of the
debt with years of interest—would be the redemption amount. That is, from
the court’s perspective, a very reasonable, simple deal for you, but you’re
the one who has to make the decision, sir.
‘‘The Defendant: So that . . . would be judgment in the rem?
‘‘The Court: It is a judgment—
‘‘The Defendant: Judgment, yeah—
‘‘The Court: —of strict foreclosure.
‘‘The Defendant: Strict foreclosure, $55,000.
‘‘The Court: With a . . . law day of, say, August 15, two and one-half
months for you to pay that or lose title to the property. $55,000. . . .
‘‘The Defendant: Yeah, I agree. But it . . . doesn’t stop me from . . .
asking [the] bankruptcy court . . . to file the repayment plan. . . . If [the]
bankruptcy court confirm[s] my plan, yeah, I agree.
‘‘The Court: Well, sir, you can try, but they’re not even making a claim
in the bankruptcy. . . . Seminole Realty is not even making a claim. So if
you declared in your chapter 13 filing . . . a debt to Seminole Realty . . .
that you want to restructure . . . I would imagine that the bankruptcy court
would say they didn’t file a claim. There’s nothing to . . . restructure.
‘‘The Defendant: Yeah. This is—thank you. This is great-—great decision.
Yeah. I agree.’’
15
Judge Cole-Chu granted the defendant’s application for a waiver of fees.
16
We may affirm a judgment of the trial court albeit on different grounds.
See, e.g., HSBC Bank USA, National Assn. v. Lahr, 165 Conn. App. 144,
151, 138 A.3d 1064 (2016).
17
General Statutes § 49-15 (b) provides ‘‘Upon the filing of a bankruptcy
petition by a mortgagor under Title 11 of the United States Code, any
judgment against the mortgagor foreclosing the title to real estate by strict
foreclosure shall be opened automatically without action by any party or
the court, provided, the provisions of such judgment, other than the establish-
ment of law days, shall not be set aside under this subsection, provided no
such judgment shall be opened after the title has become absolute in any
encumbrancer or the mortgagee, or any person claiming under such encum-
brancer or mortgagee. The mortgagor shall file a copy of the bankruptcy
petition, or an affidavit setting forth the date the bankruptcy petition was
filed, with the clerk of the court in which the foreclosure matter is pending.
Upon the termination of the automatic stay authorized pursuant to 11 USC
362, the mortgagor shall file with such clerk an affidavit setting forth the
date the stay was terminated.’’
18
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 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 . . . .’’
19
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 agree-
ment fixes a period within which the debtor . . . may file any pleading,
demand, notice, or proof of claim or loss, cure a default, or perform any
other similar act, and such period has not expired before the date of the
filing of the petition, the trustee may only file, cure or perform, as the case
may be, before the later of—(1) the end of such period . . . or (2) 60 days
after the order for relief.’’
20
In re Canney involved a mortgage foreclosure brought in Vermont under
Vermont statutes. Although In re Canney concerned foreclosure under Ver-
mont’s statutes, the statutory procedure is similar to Connecticut’s and
therefore the reasoning of the Second Circuit case applies to Connecticut
foreclosures with equal force. See Provident Bank v. Lewitt, supra, 84 Conn.
App. 207–208.
21
Provident Bank concerned a chapter 7 bankruptcy petition. In re Can-
ney concerned a chapter 13 bankruptcy petition, as does the present appeal.
‘‘Section 108 (b) is contained in chapter 1 of the United States Bankruptcy
Code and ‘[e]xcept 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).’’ Provident Bank v. Lewitt,
supra, 84 Conn. App. 207 n.4.