Crossing Condominium Assn., Inc. v. Miller ( 2024 )

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2 ,0 0 Conn. App. 1Crossing Condominium Assn., Inc. v. Miller
THE CROSSING CONDOMINIUM ASSOCIATION,
INC. v. JOSEPHINE S. MILLER ET AL.
(AC 46334)
U.S. BANK TRUST, N.A., TRUSTEE v.
JOSEPHINE S. MILLER ET AL.
(AC 46586)
Bright, C. J., and Elgo and Cradle, Js.
Syllabus
The defendant, in two separate appeals, appealed from the judgment of the
trial court denying her motion to open and vacate the judgment of foreclosure
rendered for the plaintiff condominium association in connection with a
statutory lien (§ 47-258) for unpaid common assessments, and from the
judgment of foreclosure by sale rendered by the trial court for the plaintiff
bank in a mortgage foreclosure action. The defendant claimed in each appeal,
inter alia, that the trial court abused its discretion. Held:
The trial court did not abuse its discretion in denying the defendant’s motion
to open and vacate the judgment of foreclosure by sale in the lien foreclosure
action, as an erroneous statement in the court’s written orders was a scriven-
er’s error and was not raised or discussed during the lien foreclosure pro-
ceeding.
The trial court did not abuse its discretion in ordering a judgment of foreclo-
sure by sale in the mortgage foreclosure action; contrary to the defendant’s
claim, the sale of the property to the bank in connection with the lien
foreclosure action was never approved by the court, as the committee for
sale withdrew its motion to approve the sale due to the pendency of the
defendant’s appeal to this court in the lien foreclosure action.
Argued May 30—officially released October 1, 2024
Procedural History
Action, in the first case, to foreclose a statutory lien
on certain real property of the named defendant, and
for other relief, brought to the Superior Court in the
judicial district of Danbury, where the named defendant
was defaulted for failure to plead, and action, in the
second case, to foreclose a mortgage on certain real
property of the named defendant, and for other relief,
brought to the Superior Court in the judicial district of
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Crossing Condominium Assn., Inc. v. Miller
Danbury; thereafter, in the first case, the court, Shaban,
J., rendered a judgment of foreclosure by sale and
denied the named defendant’s motion to open the judg-
ment, and the named defendant appealed to this court;
subsequently, in the second case, the court, Shaban,
J., granted the plaintiff’s motion for summary judgment
and rendered a judgment of foreclosure by sale, from
which the named defendant appealed to this court.
Affirmed.
Josephine S. Miller, self-represented, the appellant
in both appeals (named defendant).
Jonathan W. Fazzino, with whom, on the brief, were
Alexander Copp and Joshua Pedreira, for the appellee
in Docket No. 46334 (plaintiff).
Benjamin T. Staskiewicz, for the appellee in Docket
No. 46586 (plaintiff).
Opinion
ELGO, J. These related appeals brought by the self-
represented defendant, Josephine S. Miller, concern
two distinct foreclosure proceedings involving the same
real property. In Docket No. AC 46334, the defendant
appeals from the judgment of foreclosure by sale ren-
dered by the trial court in favor of The Crossing Condo-
minium Association, Inc. (association), claiming that
the court abused its discretion in denying her motion
to open and vacate that judgment.1 In Docket No. AC
46586, the defendant appeals from the judgment of fore-
closure by sale rendered by the trial court in favor of
the plaintiff, U.S. Bank Trust, N.A., as trustee for LSF9
Master Participation Trust (bank), claiming that the
1
Also named as defendants in the complaint underlying the appeal in AC
46334 were U.S. Bank Trust, N.A., as Trustee for LSF9 Master Participation
Trust, the United States Department of the Treasury–Internal Revenue Ser-
vice, the Connecticut Department of Revenue Services, and Danbury Hospi-
tal. Those parties were defaulted shortly after the action commenced and
have not participated in the appeal in AC 46334.
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4 ,0 0 Conn. App. 1Crossing Condominium Assn., Inc. v. Miller
court abused its discretion in so doing.2 We affirm the
judgments of the trial court.
The relevant facts in AC 46334 are largely undisputed.
The association is a common interest community; see
General Statutes § 47-202 (9); located in Danbury. At
all relevant times, the defendant was a member of that
common interest community by virtue of her ownership
of a unit therein, known as 130 Deer Hill Avenue, Unit
13-B (property). When she failed to pay certain common
assessments, the association filed a statutory lien on
the property. See, e.g., Coach Run Condominium, Inc.
v. Furniss, 136 Conn. App. 698, 704, 47 A.3d 413 (2012)
(condominium associations are authorized to impose
statutory liens on units for unpaid assessments ‘‘[t]o
protect the financial integrity of common interest com-
munities’’).
In June, 2021, the association brought an action to
foreclose on the statutory lien on the property pursuant
to General Statutes § 47-258 (lien foreclosure action).
On August 10, 2021, the defendant was defaulted due
to her failure to plead. See General Statutes § 52-119;
Practice Book §§ 10-8 and 17-32. The court thereafter
rendered a judgment of foreclosure by sale on Septem-
ber 27, 2021.
On October 14, 2021, the defendant notified the court
that she had filed a bankruptcy petition pursuant to
chapter 13 of the United States Bankruptcy Code, which
resulted in an automatic stay of the lien foreclosure
action. After the association obtained relief from that
automatic stay, it filed a motion to open the judgment
of foreclosure by sale on September 9, 2022. The court
2
The complaint underlying the appeal in AC 46586 also named the Con-
necticut Department of Revenue Services, Danbury Hospital, the United
States Department of the Treasury–Internal Revenue Service, and the associ-
ation as defendants. Those parties were defaulted after the action com-
menced and have not participated in the appeal in AC 46586.
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Crossing Condominium Assn., Inc. v. Miller
held a hearing on the association’s motion, in which
both parties participated. On November 14, 2022, the
court issued an order opening and modifying the fore-
closure judgment, finding the total debt and fees to be
$25,524 and setting a March 18, 2023 sale date. In that
order, the court incorrectly stated that the association
was ‘‘the holder of the original note and the assignee
of the mortgage.’’3
On December 21, 2022, the association filed a notice
of judgment, in which it averred that the total debt and
fees equaled $27,749. On February 3, 2023, the court
issued a supplemental order on the association’s motion
to open the judgment of foreclosure by sale. Other than
adjusting the dates on which the committee could incur
expenses, that order was identical to its November 14,
2022 order. Notably, the total debt and fees specified
in the February 3, 2023 order remained $25,524—the
same figure specified in the court’s November 14, 2022
order. A copy of the February 3, 2023 order was fur-
nished to the defendant by the court.
Two days before the scheduled sale date of March
18, 2023, the defendant filed a motion to open and vacate
the judgment of foreclosure by sale. The court held
a hearing the following day, at which the defendant
explained that her motion was predicated (1) on the
incorrect statement in the court’s November 14, 2022
and February 3, 2023 orders that the association was
‘‘the holder of the original note and the assignee of the
mortgage’’ and (2) on the association’s failure to provide
3
It is undisputed that, at all relevant times, U.S. Bank Trust, N.A., as
Trustee for LSF9 Master Participation Trust, was the holder of the note and
assignee of the mortgage in question. The association’s counsel stated at a
March 17, 2023 hearing: ‘‘[I]t has never been our position, throughout this
entire foreclosure process, that we had been the holder of the note, that
we are foreclosing on a mortgage on the property. We have always estab-
lished from the outset that this is a foreclosure to account for unpaid
common charges that are due on the property. This is a statutory foreclosure
and at no point have we misrepresented that.’’
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her notice of the court’s February 3, 2023 order in accor-
dance with the standing orders for foreclosures by sale.
At that time, the court noted that the November 14,
2022 hearing had been conducted remotely and that the
association’s status as the holder of the note or assignee
of the mortgage was never discussed during that hear-
ing. The court acknowledged that the statement in its
November 14, 2022 and February 3, 2023 orders that
the association was the holder of the original note and
the assignee of the mortgage was ‘‘incorrect’’; see foot-
note 3 of this opinion; and then stated that it went ‘‘back
and listen[ed] to . . . a recording of the [November 14,
2022 hearing], and the court never said those words.
I think the error came about due to a template that
sometimes is used in foreclosure matters and may have
been incorrectly rolled into this judgment. . . . [T]o
the extent that it may be viewed as a scrivener’s error,
there’s certainly some merit to that . . . . But it’s clear
that [the transcript reflects] what judgment was actually
entered on the day of the hearing before the court.’’
The court then furnished a copy of the transcript of the
November 14, 2022 hearing to the parties and took a
recess to allow them an opportunity for review.4
When the hearing resumed, the defendant and the
association’s counsel both confirmed that they had
reviewed the November 14, 2022 transcript, a copy of
which was marked as court exhibit 1. The court noted
for the record that, ‘‘contrary to [what was] in the
[November 14, 2022 and February 3, 2023 orders] where
it said the [association] is the holder of the original
note and the assignee of the mortgage, [the court] did
not say those words at the time of the hearing, as refer-
enced in the transcript.’’ The court then asked the defen-
dant if she took ‘‘issue with that at all’’; the defendant
replied, ‘‘No, Your Honor.’’
4
The November 14, 2022 transcript totals seven pages in length. It contains
no reference whatsoever to the holder of the note or the assignee of the
mortgage on the property.
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Crossing Condominium Assn., Inc. v. Miller
The court then posed the following question to the
defendant: ‘‘[H]ow would proceeding with the sale be
prejudicial to you in light of the fact that those words
were [included in the November 14, 2022 and February
3, 2023 orders], though at the actual hearing they were
never recited?’’ In response, the defendant stated that
the notice of judgment filed by the association on
December 21, 2023 ‘‘conflicted with what the court
ordered.’’5 The defendant thus stated that she was con-
fused ‘‘in terms of what is the actual amount that would
be expected to be paid off prior to a sale going forward.
. . . [I]t is not clear to me what the amount of the
debt is.’’
In response, the court noted that the defendant had
not raised any such issue in her motion to open. The
court further noted the total debt and fees specified in
the court’s February 3, 2023 order ‘‘are the same num-
bers [and are] consistent with’’ those specified by the
court on November 14, 2022. The court also observed
that, at the conclusion of the November 14, 2022 hear-
ing, it specifically asked the defendant if she had any
questions or if she believed that the court had over-
looked anything, and the defendant had answered in
the negative.
The defendant then argued that ‘‘[t]here is nothing
on the docket sheet to show’’ that the association had
provided her with notice of the court’s February 3, 2023
order.6 In response, the association’s counsel stated that
the defendant did not raise that notice issue in her
5
We reiterate that, in its December 21, 2022 notice of judgment, the
association averred that the total debt and fees equaled $27,749. Despite
that averment, the total debt and fees specified in the court’s February 3,
2023 order nonetheless remained $25,524—the same figure specified in the
court’s prior order on November 14, 2022.
6
The record before us reflects that the court sent a copy of its February
3, 2023 order to the defendant on that date. At oral argument before this
court, the defendant was asked if she had received that judicial notice. She
answered: ‘‘I am pretty sure I did get it.’’
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8 ,0 0 Conn. App. 1Crossing Condominium Assn., Inc. v. Miller
motion to open. At the conclusion of the hearing, the
court asked the defendant what remedy she was seek-
ing. The defendant stated that she was asking the court
to ‘‘vacate the judgment, correct these errors, and set
a new sale date.’’
By order dated March 17, 2023, the court denied the
defendant’s motion to open the judgment of foreclosure
by sale. In that order, the court stated in relevant part:
‘‘Practice Book § 17-4 vests discretion in the trial court
to determine whether there is a good and compelling
reason to modify or vacate its judgment. . . . No good
or compelling reason has been provided to the court
which would lead it to the conclusion that the judgment
should be reopened. . . . [A]t the November 14, 2022
hearing, the court specifically inquired of each counsel
including the defendant as to whether the court had
overlooked any aspect of the consideration of the [asso-
ciation’s] motion to reset the law days and the court’s
findings. Each party, including the defendant, replied
that they were not aware of anything being overlooked.
. . . Further, the error complained of by the defendant
as to the wording of the judgment which referenced
that the [association] was the holder of the original
note and assignee of the mortgage was a scrivener’s
error. To vacate the judgment on that basis would ele-
vate form over substance, especially given that the
defendant was present at the time the judgment was
placed on the record and heard it recited as set forth
in the transcript of that proceeding filed with the court
during the present hearing. The court acknowledges
the error in the written notice issued in that the [associa-
tion] was the condominium association seeking to fore-
close on the property due to delinquent common
charges. However, the error was harmless as it did not
affect the findings as to the fair market value of the
property, the debt and expenses found, and the date of
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Crossing Condominium Assn., Inc. v. Miller
the sale. . . . [W]hether or not the language was pres-
ent, the terms of the judgment would have been the
same.
‘‘Lastly, the court notes that the defendant suffers no
prejudice from the denial of the motion in that, because
the Unites States is a party, a sale of the property is
mandated by law. To cancel the sale and order another
sale would only increase the costs and expenses
incurred by defendant should she ultimately elect to
redeem. This would be to her financial detriment. At
the hearing on the present motion, the defendant indi-
cated, in part, the judgment should be opened because
it was unclear from the notice issued what the actual
debt was. This is unavailing as the defendant was pres-
ent when the debt was found by the court and
announced as part of its judgment. Moreover, her argu-
ment rings hollow at this point in time as there was no
evidence presented at the hearing on her motion that
she had ever inquired of the [association] since the date
of the judgment as to what the outstanding debt was
with respect to possible redemption of the property
and payment of the outstanding balance.’’ (Citations
omitted.)
I
In AC 46334, the defendant claims that the court
abused its discretion by denying her motion to open
and vacate the judgment of foreclosure by sale in the
lien foreclosure action. We do not agree.
‘‘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.’’ (Internal
quotation marks omitted.) Milford v. Recycling, Inc.,
213 Conn. App. 306, 309, 278 A.3d 1119, cert. denied, 345
Conn. 906, 282 A.3d 981 (2022). ‘‘A foreclosure action
is an equitable proceeding. . . . The determination of
what equity requires is a matter for the discretion of
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10 ,0 0 Conn. App. 1Crossing Condominium Assn., Inc. v. Miller
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 conclu-
sion that it did.’’ (Internal quotation marks omitted.)
Federal Deposit Ins. Corp. v. Owen, 88 Conn. App. 806,
811–12, 873 A.2d 1003, cert. denied, 275 Conn. 902, 882
A.2d 670 (2005).
Our review of the record convinces us that the court
was well within its discretion to deny the defendant’s
motion to open. A review of the record—and the tran-
scripts of the November 14, 2022 and March 17, 2023
hearings in particular—demonstrates that the errone-
ous statement contained in the court’s November 14,
2022 and February 3, 2023 written orders regarding the
holder of the note and assignee of the mortgage was
the result of a scrivener’s error, as that issue was neither
raised nor discussed at any time during this statutory
lien foreclosure proceeding. Moreover, the defendant
at all times was aware that the association was pursuing
that action in its capacity as a common interest commu-
nity to recover common assessments due to it, as the
complaint plainly indicates.
Equally unavailing is the defendant’s contention that
the plaintiff failed to comply with the court’s standing
orders by failing to provide her notice of the court’s
February 3, 2023 order modifying the foreclosure judg-
ment. To be sure, those standing orders, available on
the Judicial Branch website, require notice by certified
mail of the entry of a judgment of foreclosure by sale
‘‘to all nonappearing defendant owners of the equity
. . . .’’ (Emphasis added.) Uniform Standing Orders for
Foreclosure by Sale, Form JD-CV-79. See Official Court
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Crossing Condominium Assn., Inc. v. Miller
Webforms, Form JD-CV-79, available at https://
www.jud.ct.gov/webforms/forms/CV079.pdf (last vis-
ited September 25, 2024). That notice provision has
no application in the present case, as the defendant
appeared and actively participated in the lien foreclo-
sure action. Furthermore, it is undisputed that the
defendant received a copy of the February 3, 2023 order
in question via judicial notice, as she confirmed at oral
argument before this court. See footnote 6 of this opin-
ion. For those reasons, we conclude that the court did
not abuse its discretion in denying the defendant’s
motion to open and vacate the judgment of foreclosure
by sale in the lien foreclosure action.
II
In AC 46586, the defendant claims that the court
abused its discretion by rendering a judgment of fore-
closure by sale in a separate foreclosure action. We
disagree.
The following additional facts are relevant to that
claim. Approximately two months after the association
commenced the lien foreclosure action that is the sub-
ject of the appeal in AC 46334, the bank commenced
this action to foreclose on a promissory note secured by
a mortgage deed on the property (mortgage foreclosure
action). The defendant filed an appearance on October
5, 2021. On October 14, 2021, the defendant filed a notice
that she had filed a bankruptcy petition pursuant to
chapter 13 of the United States Bankruptcy Code, which
resulted in an automatic stay of the mortgage foreclo-
sure action. On May 5, 2022, the bank filed a notice
that it had obtained relief from that automatic stay.
The defendant filed her answer and special defenses
on May 19, 2022. Approximately four months later, the
bank moved for summary judgment. Following a hear-
ing at which the defendant failed to appear, the court
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granted the bank’s motion for summary judgment on
January 23, 2023.7
On Friday, March 17, 2023, the court in the lien fore-
closure action denied the defendant’s motion to open
and vacate the judgment of foreclosure by sale. Unbe-
knownst to the bank, the defendant filed an appeal of
that judgment with this court at 4:48 p.m. that Friday—
nineteen hours before the foreclosure sale in the lien
foreclosure action was scheduled to occur. As a result,
that foreclosure sale went forward on Saturday, March
18, 2023, and the bank was the high bidder. Although
the committee for sale initially sought approval of the
sale, it filed a motion to withdraw that request on April
5, 2023, which the court granted.
While the defendant’s appeal in the lien foreclosure
action was pending, the bank filed a motion for a judg-
ment of strict foreclosure in the mortgage foreclosure
action on April 27, 2023. In the weeks that followed, the
bank filed copies of the note and mortgage documents,
a notice of EMAP compliance as required by General
Statutes § 8-265ee (a), an appraisal of the property, an
affidavit of debt, a foreclosure worksheet, and affidavits
of attorney’s fees with the court. By order dated May
31, 2023, the court rendered a judgment of foreclosure
7
In rendering summary judgment in favor of the bank, the court stated
in relevant part: ‘‘[T]he court has listened to the argument of counsel for
the [bank] and reviewed the materials offered in support of the motion for
summary judgment. The court finds that the [bank] has established that
there remains no genuine issue of material fact with respect to liability and
that the special defenses raised by the defendant are insufficient to defeat
the claims of the [bank]. . . . Lastly, the court notes that the defendant is
a self-represented party and as such is granted greater leeway by the courts
even though she is a practicing attorney who is familiar with court proce-
dures as evidenced by the special defenses and pleadings she has filed in
response to the [mortgage] foreclosure action. Nonetheless, she has failed
to file any responsive pleading to rebut the allegations and submissions of
evidence offered by the [bank]. The [bank] has established that there is no
genuine issue of material fact as to her liability for the debt and for the
cause of action seeking reformation of the mortgage.’’
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Crossing Condominium Assn., Inc. v. Miller
by sale and set a sale date of September 16, 2023.8 From
that judgment, the defendant now appeals.
On appeal, the defendant contends that the court
improperly rendered a judgment of foreclosure by sale
in the mortgage foreclosure action. That claim also is
governed by the abuse of discretion standard of review.
As our Supreme Court has explained, ‘‘[a] foreclosure
action is an equitable proceeding. . . . The determina-
tion 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 conclu-
sion that it did.’’ (Internal quotation marks omitted.)
Deutsche Bank National Trust Co. v. Angle, 284 Conn.
322, 326, 933 A.2d 1143 (2007); see also Deutsche Bank
Trust Co. Americas v. DeGennaro, 149 Conn. App. 784,
793, 89 A.3d 969 (2014) (‘‘[t]he standard of review of a
judgment of foreclosure by sale or by strict foreclosure
is whether the trial court abused its discretion’’ (internal
quotation marks omitted)).
Where a foreclosure defendant’s liability has been
established by summary judgment, as is the case here,
‘‘all that remains for the court to determine at the judg-
ment hearing is the amount of the debt and the terms
of the judgment.’’ GMAC Mortgage, LLC v. Ford, 144
Conn. App. 165, 186, 73 A.3d 742 (2013). Following the
filing of the bank’s motion for a judgment of foreclosure
and related documentation, the defendant did nothing
in response, such as objecting to the evidence of debt
submitted by the bank. The record indicates that the
8
The court found the fair market value of the property to be $319,000
and the outstanding debt to be $420,245.87.
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defendant’s last filing with the court in the mortgage
foreclosure action was a motion for an extension of
time ‘‘to conduct discovery’’ filed on December 28,
2022—more than five months prior to the court’s deci-
sion to render a judgment of foreclosure by sale.
The defendant nonetheless argues that the court
abused its discretion because the property ‘‘had already
been sold’’ to the bank at the March 18, 2023 foreclosure
sale in the lien foreclosure action. She overlooks the
fact that her timely filing of an appeal in the lien foreclo-
sure action hours prior to that foreclosure sale rendered
that purported sale void, as an appellate stay automati-
cally applied to those proceedings. See Practice Book
§ 61-11. For that reason, the sale that transpired on
March 18, 2023 was never approved by the court, as
the committee for sale withdrew its motion to approve
the sale due to the pendency of the defendant’s appeal.
In light of the foregoing, we conclude that the court
did not abuse its discretion in ordering a judgment of
foreclosure by sale in the mortgage foreclosure action.
The judgments are affirmed and the cases are
remanded for the purpose of setting a new sale date.
In this opinion the other judges concurred.