U.S. Bank National Assn. v. Weinbaum ( 2023 )

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U.S. BANK NATIONAL ASSOCIATION,
TRUSTEE v. SHOLEH WEINBAUM
(AC 45043)
Elgo, Suarez and Clark, Js.
Syllabus
Pursuant to the rules of practice (§ 17-32 (b)), a motion for judgment shall
not be filed ‘‘before the expiration of fifteen days from the date of the
notice of issuance of the default . . . .’’
Pursuant further to the rules of practice (§ 17-33 (b)), a court, at or after
the time it renders a default, may render judgment in foreclosure cases
‘‘notwithstanding Section 17-32 (b) . . . 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. . . .’’
The plaintiff bank sought to foreclose a mortgage on certain real property
owned by the defendant homeowner. The plaintiff filed a motion for
default for failure to plead on September 6, 2019, which was granted
by the clerk of court on September 17, 2019. The plaintiff then filed a
motion for judgment of strict foreclosure on September 24, 2019, eigh-
teen days after the motion for default was filed and seven days after the
default had entered. The trial court denied the defendant’s subsequent
motion to set aside the default and rendered a judgment of foreclosure
by sale. On the defendant’s appeal to this court, held:
1. The defendant could not prevail on her claim that the trial court was
required to set aside the default or, alternatively, that the default was
set aside automatically when she filed her answer and special defenses,
which was based on her claim that the plaintiff’s motion for judgment
of strict foreclosure was filed only seven days after the clerk of court
granted the motion for default for failure to plead in violation of Practice
Book § 17-32 (b): the trial court was not required to set aside the default
because the fifteen day filing limitation in § 17-32 (b) is not controlling
in foreclosure proceedings, as Practice Book § 17-33 (b) expressly autho-
rizes a court to render judgment in foreclosure cases at or after the
time default is rendered and, thus, the defendant’s contentions found
no support in the language of §§ 17-32 and 17-33 or this court’s cases
interpreting those provisions; moreover, nothing prevented the defen-
dant from filing a timely pleading in the first instance or from filing a
motion to set aside the default and making the requisite showing of
good cause; furthermore, the record did not support the defendant’s
contention that the plaintiff was not prepared to proceed with its first
motion for judgment of strict foreclosure when it was filed because the
court ultimately rendered judgment on the plaintiff’s second motion for
judgment, as the second motion was filed because the defendant had
sought reinclusion into the foreclosure mediation program after the first
motion for judgment was filed.
2. The trial court did not abuse its discretion by denying the defendant’s
motion to set aside the default: because the default was not set aside
automatically when she filed her answer and special defenses, it was
incumbent on the defendant to file a motion to set aside the default
and to demonstrate good cause for doing so, and the defendant’s motion
to set aside did not allege any facts demonstrating good cause; the
plaintiff filed its motion for default for failure to plead approximately
one year after it commenced this action, after the foreclosure mediation
period had terminated due to the defendant’s failure to appear at a
scheduled mediation session and, instead of explaining in her motion
to set aside the default why she did not timely file a responsive pleading,
the defendant, through counsel, simply set forth the parties’ mediation
efforts and indicated that the mediation period had ended because she
missed a session.
Argued March 8—officially released May 30, 2023
Procedural History
Action to foreclose a mortgage on certain real prop-
erty owned by the defendant, and for other relief,
brought to the Superior Court in the judicial district of
Fairfield, where the defendant was defaulted for failure
to plead; thereafter, the court, Spader, J., denied the
defendant’s motion to set aside the default; subse-
quently, the case was tried to the court, Spader, J.;
judgment of foreclosure by sale, from which the defen-
dant appealed to this court. Affirmed.
John J. Ribas, for the appellant (defendant).
Geoffrey Milne, with whom, on the brief, was Victoria
L. Forcella, for the appellee (plaintiff).
Opinion
CLARK, J. In this foreclosure action, the defendant,
Sholeh Weinbaum, appeals from the judgment of fore-
closure by sale rendered by the trial court in favor of
the plaintiff, U.S. Bank National Association, As Trustee
for Structured Adjustable Rate Mortgage Loan Trust,
Mortgage Pass Through Certificates, Series 2006-4. On
appeal, the defendant claims that the court improperly
denied her motion to set aside the default that was
entered against her for failing to plead because the
plaintiff’s motion for judgment was filed prematurely.
Alternatively, she makes the related claim that the
default was set aside by operation of law when she
filed her answer and special defenses. Lastly, she claims
that the court abused its discretion when it denied her
motion to set aside the default. We affirm the judgment
of the trial court.
We begin by setting forth the relevant procedural
history of the case. On August 24, 2018, the plaintiff
commenced this foreclosure action against the defen-
dant by writ of summons and complaint, which sought
to foreclose a mortgage on property located at 5 Daniel
Court in Westport. On October 24, 2018, the plaintiff
filed a motion for default for failure to appear, which
the clerk of court granted on October 31, 2018.
On November 13, 2018, the defendant, who was then
self-represented, filed an appearance in the case.1 On
November 14, 2018, she filed a petition to participate
in the foreclosure mediation program, which the court
granted on November 30, 2018. The court assigned the
case to the mediation program on December 3, 2018.
On September 6, 2019, following the termination of
the mediation period, the plaintiff moved for the entry
of default for failure to plead. The clerk granted that
motion on September 17, 2019. On September 24, 2019,
the plaintiff filed a motion for judgment of strict foreclo-
sure.
On or about October 18, 2019, the defendant retained
counsel, who filed an appearance in the case. On Octo-
ber 28, 2019, the defendant filed an answer and special
defenses to the plaintiff’s complaint. On October 30,
2019, the defendant also filed a motion to set aside the
September 17, 2019 default for failure to plead, setting
forth therein the parties’ mediation history and arguing,
inter alia, that, ‘‘[w]hile the undersigned respectfully
takes the position that the default is automatically
opened when applying the ‘wait and see approach’
required by, read in conjunction, Practice Book [§§] 17-
32 (b) and 17-33 (b) as discussed in Chase Manhattan
Mortgage Corp. v. Burton, 81 Conn. App. 662, 666–67,
841 A.2d 248, cert. denied, 268 Conn. 919, 847 A.2d
313 (2004) and Deutsche Bank National Trust Co. v.
Bertrand, 140 Conn. App. 646, [59 A.3d 864, appeal
dismissed, 309 Conn. 905, 68 A.3d 661 (2013)] (both of
which ratify the well-known implication that, while the
court may contemplate the entry of judgment of foreclo-
sure notwithstanding the fifteen days contemplated in
. . . § 17-32 (b), the filing of an answer before the judg-
ment hearing sets aside and opens the entry of default
for failure to plead as a matter of law), it files the instant
motion in an abundance of caution.’’ The court denied
the motion to set aside the default on November 16,
2019. The defendant did not file a motion to reargue.
On October 30, 2019, the defendant also filed a peti-
tion for reinclusion in the foreclosure mediation pro-
gram. The court granted that petition on November 8,
2019. The parties’ participation in the mediation pro-
gram ended on or about January 29, 2020.
On August 30, 2021, the plaintiff filed a new motion
for judgment of strict foreclosure. On September 24,
2021, the court held a hearing on the plaintiff’s motion.
At the hearing, the defendant’s counsel orally objected
to proceeding with the hearing on the basis that the
September 17, 2019 default for failure to plead had
automatically been set aside by operation of law on
October 28, 2019, when the defendant filed her answer
and special defense because, in his view, the plaintiff’s
motion for judgment of strict foreclosure on September
24, 2019, was filed too soon after the default for failure
to plead had entered. Specifically, the defendant’s coun-
sel argued that ‘‘the motion for judgment is actually
moot and not properly before the court given the timing
of filing. I mean, you notice that the motion for default
for failure to plead was filed September 6th, granted
the 17th. Motion for judgment filed seven days there-
after. We weren’t hired until October. And we immedi-
ately filed an answer and special defense. But, however,
it seems more like a situation not analogous or contem-
plated by the Burton and Bertrand cases . . . .’’ The
defendant’s counsel further argued that ‘‘[t]he reality
is, is that the Practice Book mandates that you’re sup-
posed to file a motion for judgment within fifteen days
of the granting. And I know that the court can grant
the motion for default simultaneously from the bench
as contemplated by the cases. And that seems to—
and—and Burton seems to state that that’s when they’re
filed simultaneously. Here, it looked like there was a
conscious decision to not file them simultaneously,
which would therefore trigger the fifteen days.’’
The plaintiff’s counsel disagreed. He argued that the
defendant’s motion to set aside the default was filed
on October 30, 2019, and denied by the court two years
ago. He thus argued that this issue had already been
adjudicated and that the defendant never filed a motion
to reargue or an appeal. At the conclusion of this collo-
quy between the court and counsel, the court decided
to continue the hearing on the August 30, 2021 motion
for judgment so it could review the file more closely
and consider the parties’ arguments. In an order dated
September 27, 2021, the court found that the default
for failing to plead was properly entered on September
17, 2019, and that the default was not automatically set
aside when the defendant filed her answer and special
defenses. Upon its review of the relevant provisions of
the rules of practice and case law, the court concluded
that, ‘‘in foreclosure matters such as the present matter,
[Practice Book] § 17-32 (b) is not controlling as to the
timing of the filing of a motion for judgment upon
default as the judgment of default of foreclosure
COULD enter simultaneously. [Practice Book] § 17-33
(b) would be a nullity and impossible to apply on the
defendant’s reading of . . . § 17-32 (b).’’ The court also
noted that the defendant did not timely address the
issue until a ‘‘last minute oral volley’’ at the judgment
hearing years later. It explained that, ‘‘had the defendant
disagreed with the court, a motion to reargue or recon-
sider should have been timely filed. Counsel literally
argued the same issue contained in [the] motion to [set
aside] (which the court denied) two years after the
denial.’’ The court therefore proceeded to hear the
plaintiff’s motion for strict foreclosure on September
29, 2021. On September 29, 2021, the court rendered a
judgment of foreclosure by sale, with a sale date of
March 12, 2022. This appeal followed.
On appeal, the defendant claims that ‘‘[t]he trial court
erred in denying [her] motion to open default when the
plaintiff’s motion for judgment was filed only seven days
after the granting of the plaintiff’s motion for default
for failure to plead.’’ She claims that ‘‘[t]his was within
the fifteen days prescribed by Practice Book [§] 17-32
(b).’’ Alternatively, the defendant claims that the default
was automatically set aside by the filing of an answer
and special defenses. Lastly, she argues that the court
abused its discretion when it denied her motion to set
aside the default because she was previously self-repre-
sented and, upon obtaining counsel, filed an answer
and special defenses prior to the court acting on the
plaintiff’s motion for judgment of strict foreclosure.2
For the reasons discussed herein, we conclude that the
defendant’s claims lack merit.
We begin with our standard of review. Our review is
plenary with regard to the construction of our rules
of practice. See Deutsche Bank National Trust Co. v.
Bertrand, supra, 140 Conn. App. 655. To that end, ‘‘[i]n
construing our rules of practice, we are guided by the
principles governing statutory interpretation. . . . Our
fundamental objective in interpreting a rule of practice
is to ascertain and give effect to the intent of the draft-
ers. . . . In other words, we seek to determine, in a
reasoned manner, the meaning of the statutory language
as applied to the facts of [the] case, including the ques-
tion of whether the language actually does apply.’’
(Internal quotation marks omitted.) Id.With respect to the defendant’s claim that the court
abused its discretion when it denied her motion to set
aside the default, ‘‘[i]t is well established that [the]
determination of whether to set aside [a] default is
within the discretion of the trial court . . . [and] such
a determination will not be disturbed unless that discre-
tion has been abused or where injustice will result. In
the exercise of its discretion, the trial court may con-
sider not only the presence of mistake, accident, inad-
vertence, misfortune or other reasonable cause . . .
factors such as [t]he seriousness of the default, its dura-
tion, the reasons for it and the degree of contumacy
involved . . . but also, the totality of the circum-
stances, including whether the delay has caused preju-
dice to the nondefaulting party.’’ (Internal quotation
marks omitted.) Westry v. Litchfield Visitation Center,
216 Conn. App. 869, 875, 287 A.3d 188 (2022).
I
We turn now to the defendant’s claims that the court
was required to set aside the default and that the default
was set aside automatically when she filed her answer
and special defenses because the plaintiff’s motion for
judgment of strict foreclosure was filed only seven days
after the clerk of court granted the plaintiff’s motion
for default for failure to plead in violation of Practice
Book § 17-32 (b).
Practice Book § 17-32 (b) provides: ‘‘If a party who
has been defaulted under this section files an answer
before a judgment after default has been rendered by
the judicial authority, the default shall automatically be
set aside by operation of law unless a claim for a hearing
in damages or a motion for judgment has been filed. If
a claim for a hearing in damages or a motion for judg-
ment has been filed, the default may be set aside only
by the judicial authority. A claim for a hearing in dam-
ages or motion for judgment shall not be filed before
the expiration of fifteen days from the date of notice of
issuance of the default under this subsection.’’ Practice
Book § 17-33 (b) provides: ‘‘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, in actions similar
thereto and in summary process actions, provided the
plaintiff has also made a motion for judgment and pro-
vided further that any necessary affidavits of debt or
accounts or statements verified by oath, in proper form,
are submitted to the judicial authority. The judicial
authority may render judgment in any contract action
where the damages are liquidated provided that the
plaintiff has made a motion for judgment and submitted
the affidavits and attachments specified in Section 17-
25 (b) (1).’’
This court has previously addressed the interplay
between these rules of practice in foreclosure matters.
In Chase Manhattan Mortgage Corp. v. Burton, supra,
81 Conn. App. 663, for instance, the plaintiff filed a
motion for default for failure to plead and a motion for
a judgment of strict foreclosure on August 29, 2002.
The court clerk granted the motion for default on Sep-
tember 11, 2002, and the court rendered a judgment of
strict foreclosure on September 16, 2002. Id. This court
disagreed with the defendant’s contention that Practice
Book § 17-32 (b) was controlling and that it required
the court to wait at least fifteen days after the default
had entered before rendering a judgment against him.
Id., 666–67. This court explained that, ‘‘[b]ecause this
is a foreclosure proceeding, Practice Book § 17-33 (b),
which allows a court to render judgment ‘at or after
the time it renders the default,’ is applicable.’’ Id., 667.
As a result, we held that, ‘‘under . . . § 17-33 (b), the
court properly rendered the judgment even though it
did so only five days after the default was entered.’’ Id.
This court subsequently decided Deutsche Bank
National Trust Co. v. Bertrand, supra, 140 Conn. App.
646. In Bertrand, the plaintiff, on June 15, 2011,
reclaimed a motion for judgment of strict foreclosure
that it had previously filed and, on June 22, 2011, filed
its fifth motion for default for failure to plead because,
as of that date, the defendant had not filed any substan-
tive answer to the allegations in the foreclosure com-
plaint. Id., 651. The court took up the motion for judg-
ment of strict foreclosure at a June 27, 2011 short
calendar hearing, at which time counsel for the defen-
dant began the hearing by arguing that the plaintiff
should not be allowed to move forward with its adjudi-
cation of the motion for judgment of strict foreclosure
because the court clerk had not yet acted on the plain-
tiff’s motion for default for failure to plead. Id., 652.
According to the defendant’s counsel, because Practice
Book § 17-32 provides that a motion for default ‘‘shall
be acted on by the clerk not less than seven days from
the filing of the motion’’; Practice Book § 17-32 (a); the
defendant still had two days to avoid the entry of a
default by filing an answer. Deutsche Bank National
Trust Co. v. Bertrand, supra, 140 Conn. App. 652. The
defendant’s counsel also informed the court that he had
brought with him to the hearing the defendant’s answer
and special defenses and requested permission to file
them with the court at that time. Id. The court stated
that it was too late to do so, that the defendant was
required to electronically file his answer, and that the
request was an ‘‘ ‘outrageous example’ ’’ of delay. Id.The court told the parties that ‘‘ ‘[d]efault is entering’ ’’
and, over the objection of the defendant’s counsel, pro-
ceeded to render a judgment of strict foreclosure in
favor of the plaintiff. Id., 652–53.
On appeal, the defendant in Bertrand argued that the
court had improperly defaulted him for failure to plead
at the hearing on the motion for judgment of strict
foreclosure. Id., 654. According to the defendant, he
had always intended to file an answer and special
defenses but was not obligated to have done so as of
the date of the hearing on the motion for judgment of
strict foreclosure because, as he read Practice Book
§ 17-32 (a), he had seven days from the filing of the
motion for default in which to file a pleading, and only
five days had passed by the date of the hearing. Id.
We disagreed with the defendant. Id., 655. This court
explained that ‘‘[n]othing in the plain language of . . .
§ 17-32 . . . exposes any intent to limit the authority
of the court to render a default . . . or to impose upon
a judge of the Superior Court any of the procedural
restrictions contained in . . . § 17-32, which are
expressly directed toward defaults entered by the clerk
of the court pursuant to § 17-32.’’ Id., 657. We explained
that, ‘‘[a]lthough at the time of the hearing . . . § 17-
32 precluded the clerk of the court from acting on the
plaintiff’s pending motion for default, the defendant
nevertheless had not fulfilled his obligation to advance
the pleadings and the rule did not limit the court’s
authority to default the defendant, especially given the
court’s finding that the defendant’s delay in filing his
answer was outrageous and unfounded.’’ Id., 658.
This court in Bertrand also addressed the defendant’s
additional claim that the court violated Practice Book
§ 17-32 (b) when it refused to accept his answer and
special defenses, which he offered to file with the court
prior to the court’s rendering the judgment of strict
foreclosure. Id., 660. In rejecting the defendant’s argu-
ments, we explained that § 17-32 (b) unambiguously
pertains to the clerk of the court, imposing certain con-
ditions on a clerk’s authority to set aside a default. Id.,
661. ‘‘The rule does not speak to the court’s authority
to decide whether to accept pleadings that a party may
attempt to file in court. [And] to the extent that . . .
§ 17-32 (b) can be read to imply that some amount of
time must be permitted after the entry of a default in
order to permit a defaulted defendant an opportunity
to plead, Practice Book § 17-33 expressly exempts the
judicial authority from complying with . . . § 17-32
(b) in foreclosure proceedings and permits the court
to render a default and a judgment thereon simultane-
ously.’’ (Emphasis added.) Id., 661. Accordingly, this
court rejected the defendant’s argument that the court’s
refusal to allow the defendant to file his pleading in
court violated § 17-32. Id., 661–62.
Most recently, in Newtown v. Ostrosky, 202 Conn.
App. 13, 15, 245 A.3d 490 (2020), this court was pre-
sented with a similar claim to the one the defendant
presses in this case. There, the defendant argued before
the trial court that the plaintiff’s motion for judgment
of strict foreclosure filed on June 6, 2018, which was
filed one day prior to the entry of default for failure to
plead on June 7, 2018, ‘‘was filed prematurely in viola-
tion of the language of Practice Book § 17-32 (b), which
states: ‘A claim for a hearing in damages or motion for
judgment shall not be filed before the expiration of
fifteen days from the date of notice of the issuance of the
default under this subsection.’ ’’ Newtown v. Ostrosky,
Superior Court, judicial district of Fairfield, Docket No.
CV-XX-XXXXXXX-S (September 13, 2018) (reprinted at 202
Conn. App. 16, 245 A.3d 492), aff’d, 202 Conn. App. 13,
245 A.3d 490 (2020). The defendant argued that the
fifteen day limitation in § 17-32 (b) had not expired
when the plaintiff filed the motion for judgment of strict
foreclosure. Id. The trial court rejected the defendant’s
arguments, explaining that ‘‘[t]he plaintiff asserts, and
the court agrees, that the foregoing fifteen day limita-
tion of . . . § 17-32 (b) is excused by Practice Book
§ 17-33 (b) in the case [of] a judgment entered in a
foreclosure case such as this.’’ Id. The court explained
that ‘‘[t]he expressed reasoning of the . . . § 17-33 (b)
exception to waiting fifteen days applies here: ‘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 . . . .’ ’’ Id. The court therefore held that
the filing of a motion for judgment of strict foreclosure
prior to the entry of default by the clerk did not deprive
the court of the ability to proceed with judgment less
than fifteen days from the entry of a default. Id. On
appeal, this court affirmed the judgment of the trial
court and adopted its ‘‘well reasoned decision denying
the defendant’s motion to reargue and for reconsidera-
tion as a statement of the facts and the applicable law
with respect to the issues raised in [the] appeal.’’ New-
town v. Ostrosky, supra, 202 Conn. App. 16.
Guided by this court’s interpretation of the rules of
practice at issue, we turn to the facts of this case. The
plaintiff’s motion for default for failure to plead was
filed on September 6, 2019, and was granted on Septem-
ber 17, 2019. The motion for judgment of strict foreclo-
sure was filed eighteen days after the motion for default
was filed and seven days after the default had entered.
The defendant contends that, because the motion for
judgment of strict foreclosure was filed only seven days
after the default had entered, the motion violated the
provision of Practice Book § 17-32 (b) stating that a
motion for judgment shall not be filed before the expira-
tion of fifteen days from the date of the notice of issu-
ance of a default. As a result, she claims that the court
was required to grant her motion to set aside the default.
Alternatively, she argues that the default was set aside
automatically under § 17-32 (b) when she filed her
answer and special defenses on October 28, 2019. We
disagree.
Contrary to the defendant’s assertions, it is clear from
the language of Practice Book § 17-33 (b) and the afore-
mentioned cases that the fifteen day filing limitation in
Practice Book § 17-32 (b) is not controlling in foreclo-
sure proceedings. See, e.g., Newtown v. Ostrosky, supra,
Superior Court, Docket No. CV-XX-XXXXXXX-S (motion
for judgment of strict foreclosure filed one day prior
to entry of default by clerk for failure to plead was
not premature). As we explained in Bertrand, ‘‘§ 17-33
expressly exempts the judicial authority from comply-
ing with . . . § 17-32 (b) in foreclosure proceedings
and permits the court to render a default and a judgment
thereon simultaneously.’’ Deutsche Bank National
Trust Co. v. Bertrand, supra, 140 Conn. App. 661.
Indeed, § 17-33 (b) expressly authorizes a court to ren-
der judgment in foreclosure cases ‘‘at or after’’ the time
default is entered ‘‘notwithstanding Section 17-32 (b)
. . . 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. . . .’’ (Emphasis added.) Practice Book § 17-
33 (b). The defendant’s claim simply cannot be squared
with this court’s decisions interpreting § 17-33. If, as
this court has held, a court can render a judgment of
strict foreclosure simultaneously with a default, or ren-
der a judgment of strict foreclosure one day, or two
days, or three days after a default is entered, a plaintiff
surely cannot be required to wait fifteen days from the
entry of a default before filing a motion for judgment
of strict foreclosure.
The defendant nonetheless argues that, given the spe-
cific facts of this case, this court should conclude that
the court was required to set aside the default or, alter-
natively, that the default automatically was set aside
when she filed her answer and special defenses. Among
other things, the defendant claims ‘‘that a plaintiff can
essentially use [Practice Book] § 17-33 (b) as a means
to foreclose a defendant from filing a pleading, even
[if] it does not intend to proceed on its motion for
judgment.’’ In particular, the defendant argues that,
‘‘[t]aking this case as an example, the plaintiff’s motion
for default was filed on September 6, 2019, and that
motion was granted on September 17, 2019. It is worth
noting that the defendant was self-represented at the
time. The motion for judgment was then filed on Sep-
tember 24, 2019. This was within the fifteen days pre-
scribed by Practice Book [§] 17-32 (b). The motion for
judgment likely first came on the short calendar in the
first two weeks of October and was not prosecuted. In
fact, none of the other necessary judgment documents
(i.e., foreclosure worksheet or affidavit of debt) were
filed alongside the September, 2019 motion for judg-
ment of strict foreclosure. However, at that point, the
harm is already done. Even if the plaintiff does not
prosecute the motion for judgment for months or even
years, the defendant is nonetheless required to move
to open the default. The defendant avers that this was
not the intent of this statutory scheme. The default,
in such a situation, should be automatically opened,
without the need for a motion, which in this case the
defendant filed in an abundance of caution.’’
The defendant’s contentions are not persuasive. First,
and most importantly, they find no support in the lan-
guage of Practice Book §§ 17-32 and 17-33 or our cases
interpreting those provisions. Second, contrary to the
defendant’s assertion, nothing prevented her from filing
a timely pleading in this case in the first instance or
from filing a motion to set aside the default and making
the requisite showing of good cause. Third, the record
does not support the defendant’s contention that the
plaintiff was not prepared to proceed with its first
motion for judgment of strict foreclosure when it was
filed. The court ultimately did not entertain that motion
and instead rendered judgment on the plaintiff’s second
motion for judgment in September, 2021, because the
defendant sought reinclusion in the foreclosure media-
tion program after the first motion for judgment was
filed.3
For all of the foregoing reasons, we conclude that
the court was not required to set aside the default and
that the default was not set aside automatically when
the defendant filed her answer and special defenses.
II
The defendant next claims that the court abused its
discretion by denying her motion to set aside the
default. The defendant claims, in a conclusory fashion,
that the court abused its discretion because she ‘‘was
previously self-represented and, upon obtaining coun-
sel, filed an answer and special defenses prior to the
court acting on the plaintiff’s motion for judgment of
strict foreclosure.’’ We disagree.
Practice Book § 17-42 provides in relevant part that
‘‘[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. . . .’’ (Emphasis added.) ‘‘[The] determi-
nation of whether to set aside [a] default is within the
discretion of the trial court . . . [and] such a determi-
nation will not be disturbed unless that discretion has
been abused or where injustice will result.’’ (Internal
quotation marks omitted.) Westry v. Litchfield Visita-
tion Center, supra, 216 Conn. App. 875.
Because the default that entered against the defen-
dant was not set aside automatically when she filed her
answer and special defenses, it was incumbent on the
defendant to file a motion to set aside the default with
the court and to demonstrate good cause for doing so.
Although the defendant claims that the court erred in
denying her motion to set aside the default, her claim
fails for the simple reason that her motion did not allege
any facts demonstrating that good cause existed. See,
e.g., Chevy Chase Bank, F.S.B. v. Avidon, 161 Conn.
App. 822, 833, 129 A.3d 757 (2015) (trial court did not
abuse its discretion in denying motion to set aside
default because ‘‘[t]he defendant’s motion to open the
default did not allege any facts demonstrating that good
cause existed to set aside the default’’).
It is clear from the record that the plaintiff filed a
motion for default for failure to plead approximately
one year after it commenced the action against the
defendant. The plaintiff filed the motion after the fore-
closure mediation period had terminated due to the
defendant’s failure to appear at the last mediation ses-
sion. Instead of explaining in her motion to set aside
the default why she did not timely file her responsive
pleading, the defendant, through counsel, simply sets
forth the parties’ mediation efforts and indicated that
mediation ended because she missed a scheduled medi-
ation session on July 30, 2018. She claimed that she
was unaware that she should have filed a motion for
continuance or a motion to extend the mediation period
and that she would be filing a motion for reinclusion
into the mediation program. The defendant’s motion to
set aside then noted that the defendant’s counsel took
the position that the default was automatically set aside
when the defendant filed her answer and special
defenses and that the motion had been filed out of an
abundance of caution. The defendant’s motion, how-
ever, did not provide any meaningful explanation for
her failure to plead on time. On this record, we cannot
conclude that the court abused its discretion in denying
the defendant’s motion to set aside the default. See,
e.g., Snowdon v. Grillo, 114 Conn. App. 131, 142, 968
A.2d 984 (2009) (‘‘[w]e agree with the court that the
defendant’s explanation for failing to plead did not rise
to the level of good cause’’).
The judgment is affirmed.
In this opinion the other judges concurred.
1
Practice Book § 17-20 (d) provides in relevant part: ‘‘If the defaulted
party files an appearance in the action prior to the entry of judgment after
default, the default shall automatically be set aside by operation of law. . . .’’
2
Although the defendant’s brief also sets out the claim that the ‘‘trial
court erred in its interpretation of Practice Book § 17-33 (b),’’ that claim is
subsumed in our discussion of her first claim.
3
We also reject the defendant’s contention that the plaintiff could not
avail itself of the benefits of Practice Book § 17-33 (b) because its first
motion for judgment did not comply with the requirement of subsection (b)
that a plaintiff submit with such motions the ‘‘necessary affidavits of debt
or accounts or statements verified by oath, in proper form . . . .’’ Practice
Book § 17-33 (b). Although § 17-33 requires such documents to be submitted
in order for a court to render a judgment of foreclosure, we do not interpret
the rule to require such documents to be submitted simultaneously with
the motion for judgment. Such a requirement is not evident from the plain
language of the rule. Moreover, such an interpretation would serve no useful
purpose and would disrupt the customary practice of filing such documents
on or shortly before a hearing on motions for judgment in foreclosure
matters so that courts may enter orders based upon the most current and
accurate financial information.