U.S. Bank, N.A., Trustee v. Morawska

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U.S. BANK, N.A., TRUSTEE v. ANNA
MORAWSKA ET AL.
(AC 37887)
DiPentima, C. J., and Beach and Schaller, Js.
Argued March 2—officially released May 10, 2016
(Appeal from Superior Court, judicial district of
Fairfield, Hartmere, J. [motion for summary judgment];
Tyma, J. [judgment of strict foreclosure]; Bellis, J.
[petition for reinclusion]; Hon. Alfred J. Jennings, Jr.,
judge trial referee [judgment of strict foreclosure;
motion to reargue].)
Brian E. Lambeck, for the appellant (named
defendant).
Christopher S. Groleau, with whom was Vincent J.
Averaimo, for the appellee (plaintiff).
Opinion
PER CURIAM. The defendant Anna Morawska1
appeals from the reentry of the judgment of strict fore-
closure in favor of the plaintiff, U.S. Bank, N.A., as
trustee,2 following the lifting of a bankruptcy stay. On
appeal, the defendant claims that the trial court (1)
should have held oral argument before denying her
petition for reinclusion in the foreclosure mediation
program, (2) was not permitted to make new findings
as to the amount of the debt when setting a new law
day, and (3) improperly denied her motion to reargue.
We affirm the judgment of the trial court.
The following facts and procedural history are rele-
vant to this appeal. The plaintiff commenced this fore-
closure action in July of 2009, seeking to foreclose on
a mortgage on the subject premises, a residence in
Fairfield. In its complaint, it alleged that the defendant,
the record owner of the premises, was in default on a
note in the original amount of $391,200 secured by the
mortgage, and it elected to accelerate the balance due
upon the note and sought to foreclose the mortgage.
The trial court, Hartmere, J., granted the defendant’s
petition to participate in the foreclosure mediation pro-
gram as an aggrieved person on August 2, 2010, and
granted the plaintiff’s motion for summary judgment
on August 4, 2010. The parties participated in mediation
through April 10, 2012, when the plaintiff objected to
further extending the mediation period. The court,
Hartmere, J., sustained the plaintiff’s objection on April
30, 2012. The court, Tyma, J., subsequently granted the
plaintiff’s motion for judgment of strict foreclosure on
September 30, 2013, setting a law day of January 28,
2014, and finding the debt to be $501,890.82 and the
fair market value of the property to be $410,000. On
January 31, 2014, the plaintiff filed a notice that the
defendant had filed a petition for bankruptcy pursuant
to title 11, chapter 13, of the United States Code on
January 28, 2014, which operated as an automatic stay
of the running of the law day.
On April 30, 2014, the plaintiff filed a motion to reset
law days and reenter judgment on the ground that the
judgment of strict foreclosure had been opened and the
law day vacated pursuant to General Statutes § 49-15
(b) upon the filing of the bankruptcy petition. The bank-
ruptcy petition was dismissed on March 17, 2014, and
therefore the plaintiff ‘‘mov[ed] that the law days be
reset and the judgment reentered with all other provi-
sions remaining the same.’’ On May 2, 2014, the defen-
dant filed a petition for reinclusion in the foreclosure
mediation program, which the court, Bellis, J., denied.
On October 20, 2014, following a hearing, the court,
Hon. Alfred J. Jennings, Jr., judge trial referee, granted
the plaintiff’s motion to reset law days and entered a
modified judgment of strict foreclosure, setting the law
day for January 20, 2015, finding the debt to be
$516,230.06 and the fair market value of the property
to be $415,000. The defendant filed a motion to reargue
on November 10, 2014, which the court denied on March
29, 2015, holding that it was filed late, the court had
not overlooked any controlling principle of law, and
the defendant had not pointed to any claimed misappre-
hension of facts by the court. On April 20, 2015, the
defendant appealed to this court.
‘‘This court reviews mortgage foreclosure appeals
under the abuse of discretion standard. . . . A foreclo-
sure action is an equitable proceeding. . . . The deter-
mination 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 cor-
rectly applied the law and could reasonably have
reached the conclusion that it did.’’ (Citations omitted;
internal quotation marks omitted.) Wells Fargo Bank,
N.A. v. Khatun, 146 Conn. App. 618, 620, 78 A.3d 222
(2013).
The defendant first claims that the court should have
held a hearing before deciding her petition for reinclu-
sion in the foreclosure mediation program. The plaintiff
replies that the only requirement for reinclusion in the
mediation program under General Statutes § 49-31l is
that the movant show good cause, and that the court
properly determined that the defendant had not.
Section 49-31l (c) (5) provides in relevant part that
‘‘the court may refer a foreclosure action brought by a
mortgagee to the foreclosure mediation program at any
time, for good cause shown . . . . When determining
whether good cause exists, the court shall consider
whether the parties are likely to benefit from mediation
and, in the case of a referral after prior attempts at
mediation have been terminated, whether there has
been a material change in circumstances.’’ Therefore,
for a referral after prior attempts at mediation have
been terminated, showing good cause requires showing
both that the parties are likely to benefit from mediation
and that a material change in circumstances has
occurred. Section 49-31l does not contain a hearing
requirement. In her request for reinclusion in the fore-
closure mediation program, the only ground advanced
by the defendant was that the plaintiff had contacted
her to see if they could work out a modification of the
mortgage.3 The court denied the petition; we conclude
that it was well within its discretion to determine that
the defendant had not shown good cause.
The defendant next claims that the court erred in
making new findings when it set a new law day because
it was barred from doing so by § 49-15 (b). The plaintiff
responds that the court was permitted to modify the
foreclosure judgment when setting a new law day.
Section 49-15 (b) provides in relevant part: ‘‘Upon
the filing of a bankruptcy petition by a mortgagor . . .
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 establishment of law days, shall not be set aside
under this subsection . . . .’’ By its express terms, sub-
section (b) of § 49-15 governs what occurs automati-
cally following the filing of a bankruptcy petition: the
judgment is opened, but only with respect to the law
day. It does not refer to how a plaintiff may request
the court reset the law day and reenter the judgment
of strict foreclosure following the dismissal or dis-
charge of the bankruptcy.
In order to have the court reset the law day and
reenter the judgment of strict foreclosure, a plaintiff
must comply with subsection (a) (1) of § 49-15, which
provides in relevant part: ‘‘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 . . . .’’ We conclude that the plaintiff’s
motion of April 30, 2014, constituted a written motion
and that the trial court properly opened the judgment,
entered new findings, and reset the law day. See Pacific
Mutual Life Ins. Co. v. Broad Associates Ltd. Partner-
ship, 24 Conn. App. 42, 44 n.3, 585 A.2d 115 (1991)
(‘‘[o]n an application for a foreclosure the court will
ascertain the sum that is due on the mortgage, and
enquire into the value of the mortgaged premises, and
will limit a time for redemption having regard to the
value of the [mortgaged] premises when compared with
the debt’’ [internal quotation marks omitted]).
Finally, the defendant claims that the court improp-
erly denied her motion to reargue as untimely and,
therefore, the remainder of the court’s decision on the
merits was obiter dictum.4 The plaintiff concedes that
the defendant’s motion to reargue was timely filed but
contends that the court properly denied the motion on
its merits.
‘‘The standard of review for a court’s denial of a
motion to reargue is abuse of discretion. . . . [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 misappre-
hension 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 . . . .’’ (Internal quotation
marks omitted.) Fortin v. Hartford Underwriters Ins.
Co., 139 Conn. App. 826, 843, 59 A.3d 247, cert. granted
on other grounds, 308 Conn. 905, 61 A.3d 1098 (2013)
(appeal withdrawn November 26, 2014).
The defendant contends that the court denied her
motion to reargue on timeliness grounds and that the
remainder of the court’s holding is dicta. This is not a
case where the court considered the merits of a matter
after determining that it lacked subject matter jurisdic-
tion. See Electrical Contractors, Inc. v. Dept. of Educa-
tion, 303 Conn. 402, 421, 35 A.3d 188 (2012) (where
court determines it lacks subject matter jurisdiction,
any further discussion of merits is dicta). The court
clearly denied the motion to reargue on two grounds,
both the lack of timeliness and the lack of any legal
or factual analysis that it had not considered. Having
reviewed the motion, we conclude that the court did
not abuse its discretion in concluding as it did as to
the second ground.
The judgment is affirmed and the case is remanded
for the purpose of setting new law days.
1
The complaint also named Mortgage Electronic Registration Systems,
Inc., as Nominee for Countrywide Home Loans, Inc. d/b/a America’s Whole-
sale Lender (MERS) as a defendant. In January 2010, the trial court clerk
granted the plaintiff’s motion for default against MERS for its failure to file
an appearance. Because only Anna Morawska has appealed, we refer to her
as the defendant for purposes of this opinion.
2
The plaintiff is the trustee of the BS Arm Trust, Pass-Through Certificates,
Series 2005-1.
3
The plaintiff denies that it suggested returning to mediation; it maintains
that the letter was merely an informational letter providing contact numbers.
The plaintiff neither objected to nor consented in the plaintiff’s motion
for reinclusion.
4
‘‘[D]ictum is an observation or remark made by a judge in pronouncing
an opinion upon a cause, concerning some rule, principle, or application of
law, or the solution of a question suggested by the case at bar, but not
necessarily involved in the case or essential to its determination . . . .
Statements and comments in an opinion concerning some rule of law or
legal proposition not necessarily involved nor essential to determination of
the case . . . are obiter dicta, and lack the force of an adjudication.’’ (Inter-
nal quotation marks omitted.) Electrical Contractors, Inc. v. Dept. of Educa-
tion, 303 Conn. 402, 421 n.16, 35 A.3d 188 (2012).