Countrywide Home Loans Servicing L.P. v. Peterson , 171 Conn. App. 842 ( 2017 )

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COUNTRYWIDE HOME LOANS SERVICING L.P.
v. ALYSSA PETERSON ET AL.
(AC 37764)
Keller, Prescott and West, Js.
Argued November 29, 2016—officially released March 28, 2017
(Appeal from Superior Court, judicial district of
Middlesex, Domnarski, J. [judgment]; C. Taylor, J.
[motion to open; motion to reargue])
Alyssa S. Peterson, self-represented, the appellant
(named defendant).
Christopher J. Picard, for the appellee (substitute
plaintiff).
Opinion
PER CURIAM. The named defendant, Alyssa
Peterson,1 who represented herself before the trial
court and continues to do so on appeal, challenges the
judgment of the court (1) denying her motion to open
the court’s judgment of strict foreclosure, and (2) deny-
ing her motion to reargue the motion to open. The
defendant’s principal claim, and the only one we need
address at length,2 is that the court improperly declined
to open the judgment of strict foreclosure in order to
correct an erroneous determination of the debt owed
by the defendant. We affirm the judgment of the court.
The operative facts underlying this appeal are as fol-
lows. On April 21, 2009, Countrywide Home Loans Ser-
vicing L.P. (Countrywide) commenced this action
seeking foreclosure of a mortgage on property owned
by the defendant in Middletown (property).3 On May
26, 2010, the court granted Countrywide’s motion for
summary judgment as to liability only. Countrywide
subsequently merged with another entity, which there-
after assigned the mortgage and note to the substituted
plaintiff, Green Tree Servicing LLC (plaintiff). On
December 22, 2014, the court rendered a judgment of
strict foreclosure, finding a debt of $350,051.71 plus
costs and fees, and setting the commencement of the
law days for January 26, 2015. On January 26, 2015, the
defendant moved to open the judgment, arguing, inter
alia, that the trial court should recalculate the debt
to reflect the fact that there was a private mortgage
insurance policy4 on the property. The court, without
stating its reasons, denied the motion on the same day.
On February 17, 2015, the defendant filed a motion to
reargue the motion to open. The court denied that
motion on February 19, 2015, again without providing
its reasoning. The defendant appealed from the denial
of both motions on March 11, 2015.
As a preliminary matter, we clarify the procedural
posture of this appeal. As previously mentioned, on
January 26, 2015, when the law days were set to com-
mence, the defendant filed her motion to open, which
the court denied on the same day. The denial of the
motion to open was an appealable final judgment; see
TD Banknorth, N.A. v. White Water Mountain Resorts
of Connecticut, Inc., 133 Conn. App. 536, 542 n.7, 37
A.3d 766 (2012); from which an automatic twenty day
stay arose. See Practice Book §§ 61-11 (a) and 63-1 (a).
The defendant filed her motion to reargue on the final
day of the twenty day appeal period; see Practice Book
§ 63-1 (c); thereby giving rise to a new twenty day appeal
period commencing upon the denial of the motion to
reargue and extending the existing appellate stay. See
Gibbs v. Spinner, 103 Conn. App. 502, 506 n.4, 930 A.2d
53 (2007). On the final day of the new appeal period,
the defendant appealed from the denial of both motions
to this court. The defendant’s claims as to the motion to
open and her motion to reargue are therefore properly
before this court. The defendant cannot, however, chal-
lenge the merits of the December 22, 2014 judgment of
strict foreclosure in this appeal because she filed the
motion to open on January 26, 2015—more than twenty
days after the court rendered the judgment of strict
foreclosure. See Alix v. Leech, 45 Conn. App. 1, 3–4,
692 A.2d 1309, 1311 (1997).
Before proceeding to our analysis of the defendant’s
claim, we address the plaintiff’s argument that this court
lacks subject matter jurisdiction over the appeal on
mootness and ripeness grounds. As to mootness, the
plaintiff’s reasoning proceeds as follows: the defendant
did not place her motion to open on the short calendar
pursuant to Practice Book § 11-13 (a); therefore, the
trial court was without authority to hear the motion;
hence the law day has passed and title has vested in
the plaintiff, meaning that this court cannot afford the
defendant any practical relief. We disagree.
Practice Book § 11-13 (a) provides in relevant part:
‘‘Unless otherwise provided in these rules or ordered
by the judicial authority . . . all motions and objec-
tions to requests when practicable . . . must be placed
on the short calendar list. No motions will be heard
which are not on said list and ought to have been placed
thereon; provided that any motion in a case on trial, or
assigned for trial, may be disposed of by the judicial
authority at its discretion, or ordered upon the short
calendar list on terms, or otherwise.’’ Thus, § 11-13 (a)
‘‘allows for the expeditious, alternative, discretionary
hearing of motions. The court need not place a motion
on a short calendar list if to do so would delay the
proceedings.’’ Udolf v. West Hartford Spirit Shop, Inc.,
20 Conn. App. 733, 736, 570 A.2d 240 (1990). The court’s
ruling on the defendant’s motion to open was, impliedly,
a determination that calendaring the matter would
unnecessarily delay the proceeding, and therefore was
not improper.5 The plaintiff’s reliance on Fattibene v.
Kealey, 18 Conn. App. 344, 558 A.2d 677 (1989), is mis-
placed. In Fattibene, the defendant’s motion to impose
sanctions of attorney’s fees was granted by the trial
court before the plaintiff could file an objection and
despite never having been placed on the short calendar.
Id., 352–53. In the present case, however, the plaintiff
suffered no such harm because the defendant’s motion
to open was summarily denied. The defendant’s motion
to open, therefore, was not required to be placed on
the short calendar. Accordingly, the defendant’s appeal
is not moot.
Nor do we conclude that, as the plaintiff contends, the
appeal is unripe. ‘‘[T]he rationale behind the ripeness
requirement is to prevent the courts, through avoidance
of premature adjudication, from entangling themselves
in abstract disagreements . . . [and we therefore]
must be satisfied that the case before [us] does not
present a hypothetical injury or a claim contingent upon
some event that has not and indeed may never tran-
spire.’’ (Internal quotation marks omitted.) Office of the
Governor v. Select Committee of Inquiry, 271 Conn.
540, 570, 858 A.2d 709 (2004). The plaintiff argues that
this appeal should be dismissed on ripeness grounds
because the defendant’s claim involves the proper cal-
culation of the amount of the deficiency, and the court
has yet to render a deficiency judgment. See General
Statutes § 49-14. The plaintiff continues: ‘‘[The defen-
dant] sets forth in her brief that the primary concern
was the determination of any deficiency balance due
to . . . her chapter 13 bankruptcy plan.’’ We disagree
because we decline to read the defendant’s claim so
narrowly. Whether her ultimate aim is to have the defi-
ciency judgment, if and when rendered, reduced to
reflect the fact that the plaintiff’s loss has been partially
satisfied from the proceeds of a private mortgage insur-
ance policy on the property, the defendant is at this
stage merely seeking recalculation of the debt that the
court found in its judgment of strict foreclosure.
Because the amount of the debt has already been deter-
mined by the trial court, our consideration of this issue
is not premature even though a deficiency judgment
has not been formally rendered.6 Accordingly, the defen-
dant’s appeal is ripe for adjudication.
We now turn to the defendant’s principal claim. She
argues that the court should have opened the judgment
of strict foreclosure in order to recalculate the debt to
reflect that (1) the plaintiff had collected, or will collect,
a portion of the outstanding debt under a private mort-
gage insurance policy on the property; and (2) the defen-
dant, for a period of time, paid premiums on the policy.
The defendant asserts that she paid premiums on the
policy before declaring chapter 13 bankruptcy, and that
the plaintiff paid, and may be continuing to pay, the
premiums after the bankruptcy.
The following legal principles guide our analysis.
‘‘Any judgment foreclosing the title to real estate by
strict foreclosure may, at the discretion of the court
rendering the judgment, upon the written motion of any
person having an interest in the judgment and for cause
shown, be opened and modified, notwithstanding the
limitation imposed by section 52-212a, upon such terms
as to costs as the court deems reasonable, provided no
such judgment shall be opened after the title has
become absolute in any encumbrancer except as pro-
vided in subdivision (2) of this subsection.’’ General
Statutes § 49-15 (a) (1).
‘‘A motion to open a judgment of strict foreclosure
is addressed to the discretion of the trial court . . .
and unless that discretion was abused or was based
upon some error in law, the denial of the motion must
stand.’’ (Citation omitted; internal quotation marks
omitted.) New Haven Savings Bank v. Gurland, 3 Conn.
App. 508, 508–509, 489 A.2d 1070 (1985). ‘‘Because open-
ing a judgment is a matter of discretion, the trial court
[is] not required to open the judgment to consider a
claim not previously raised. The exercise of equitable
authority is vested in the discretion of the trial court
and is subject only to limited review on appeal. . . .
In light of the extremely deferential standard of review
governing the disposition of new claims raised posttrial
and without the benefit of the trial court’s reasoning
as to those claims . . . the defendant’s arguments are
entitled to brief consideration only.’’ (Citations omitted;
footnote omitted; internal quotation marks omitted.)
Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 94–95,
952 A.2d 1 (2008).
As to an appeal from the denial of a motion to reargue,
‘‘[a]s with any discretionary action of the trial court,
appellate review requires every reasonable presump-
tion in favor of the action, and the ultimate issue for
us is whether the trial court could have reasonably
concluded as it did. . . . [T]he purpose of a reargument
is . . . to demonstrate to the court that there is some
decision or some principle of law which would have a
controlling effect, and which has been overlooked, or
that there has been a misapprehension of facts. . . .
It also may be used to address . . . claims of law that
the [movant] claimed were not addressed by the court.
. . . [A] motion to reargue [however] is not to be used
as an opportunity to have a second bite of the apple
. . . .’’ (Citation omitted; internal quotation marks
omitted.) Gibbs v. Spinner, supra, 103 Conn. App. 507.
The defendant has failed to demonstrate that the
court abused its discretion or committed an error of
law in denying the motion to open. We observe that
the defendant waited until after the judgment of strict
foreclosure had been rendered and the law days were
about to run to challenge the finding of debt on the
basis of the existence of private mortgage insurance.
See Connecticut National Bank v. N.E. Owen II, Inc.,
22 Conn. App. 468, 475, 578 A.2d 655 (1990) (‘‘The defen-
dants never asserted a defense with regard to the debt
prior to the rendering of the judgment of strict foreclo-
sure. Therefore, any claim that they had a good defense
to open that judgment and challenge the amount of the
debt is equally without merit.’’). The defendant was
undoubtedly aware of the existence of the private mort-
gage insurance before the court rendered the judgment
of strict foreclosure—after all, she takes credit in her
brief for having the ‘‘foresight to obtain said insurance.’’7
Additionally, in her motion to open, the defendant pro-
vided no evidence, save for unsubstantiated assertions,
of the existence of the mortgage insurance policy, or
any proof that the plaintiff or Countrywide had actually
collected under such policy. The defendant provided
the following explanations as to why she did not assert
this defense until after the judgment of strict foreclo-
sure: ‘‘[T]he law day was set rather quickly and arrang-
ing to meet with bankruptcy legal counsel, attempting
to locate the private mortgage policy, contact the pro-
posed sale parties . . . has been ill-timed.’’ ‘‘Although
we are inclined to be indulgent of lay persons like the
defendant who represent themselves in legal proceed-
ings’’; Burritt Mutual Savings Bank of New Britain v.
Tucker, 183 Conn. 369, 373, 439 A.2d 396 (1981); we are
not persuaded by any of the preceding explanations
that the court abused its discretion in denying the defen-
dant’s motion to open. On the basis of the foregoing,
we conclude that the court’s denial of the motion to
open was a proper exercise of discretion. Additionally,
because the defendant has not shown that her motion
to reargue was anything more than an attempt to have
a second bite of the apple; Gibbs v. Spinner, supra, 103
Conn. App. 507; we conclude that the court did not
abuse its discretion in denying that motion as well.
The judgment is affirmed and the case is remanded
with direction to set new law days.
1
Sherri Truelove, Homeowners Finance Co., and Professional Electric
Corporation were also defendants in the proceeding before the trial court.
The court defaulted those defendants for failure to appear. Truelove subse-
quently filed an answer to the complaint and a motion to set aside the
default, which the court granted. Peterson is the sole appellant in the present
appeal and will be referred to herein as the defendant.
2
We summarily dispose of the defendant’s other claims, which appear to
involve requests that this court coordinate with, or enforce orders purport-
edly given by, the federal district court before which the defendant is pursu-
ing chapter 13 bankruptcy relief. Such matters are not within the purview
of this court.
3
Shortly after bringing this action, Countrywide changed its name to BAC
Home Loans Servicing, L.P., which was then substituted as the plaintiff. For
purposes of this appeal, however, we refer to both as Countrywide.
4
‘‘‘Mortgage insurance’ means insurance written by an independent mort-
gage insurance company to protect the mortgage lender against loss incurred
in the event of a default by a borrower under the mortgage loan . . . .’’
General Statutes § 36a-725.
5
We acknowledge that the court, in acting expeditiously on the motion
on the law day, preserved the defendant’s right to maintain the motion to
open and appeal its denial. Had the court not acted on the motion that day,
the court would have lost subject matter jurisdiction over the motion. See
General Statutes § 49-15 (a) (1) (‘‘[a]ny judgment foreclosing the title to real
estate by strict foreclosure may . . . be opened and modified . . . pro-
vided no such judgment shall be opened after the title has become absolute
in any encumbrancer’’ [emphasis added]); First National Bank of Chicago
v. Luecken, 66 Conn. App. 606, 612, 785 A.2d 1148 (2001) (‘‘if the court did
not hear the defendant’s first motion to open prior to the vesting of title in
the plaintiff, the trial court was without jurisdiction to open the judgment’’),
cert. denied, 259 Conn. 915, 792 A.2d 851 (2002).
6
Although the defendant failed to present a defense as to the amount of
the debt prior to the entry of the judgment of strict foreclosure, we are
aware of no procedural barrier preventing her from attempting to assert
such a defense in a timely filed motion to open the judgment of strict
foreclosure. In fact, even if the plaintiff were to prevail on its ripeness
argument, thereby requiring the defendant to wait until the entering of a
deficiency judgment to interpose her claim as to the private mortgage insur-
ance, we are not persuaded that the defendant could raise such claim at
that later time. See First Bank v. Simpson, 199 Conn. 368, 373, 507 A.2d
997 (1986) (‘‘[the] deficiency judgment procedure presumes the amount of
the debt as established by the foreclosure judgment and merely provides
for a hearing on the value of the property’’).
7
Although the defendant asserts on appeal that ‘‘[i]t wasn’t known that
the policy was still in force until [she] began receiving tax documents
regarding the benefit, years later,’’ she did not distinctly make this argument
before the trial court. Moreover, even if such statement were accurate, the
defendant has not explained, nor is it readily apparent to us, how she was
unable, with due diligence, to ascertain whether the insurance policy was
still in force before the entry of the judgment of strict foreclosure.