Bank of America, N.A. v. Grogins

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BANK OF AMERICA, N.A. v. DAVID GROGINS,
EXECUTOR (ESTATE OF ANNA S.
GROGINS), ET AL.
(AC 40325)
DiPentima, C. J., and Sheldon and Pellegrino, Js.
Syllabus
The plaintiff bank, B Co., sought to foreclose a mortgage on certain real
property owned by the decedent. Prior to trial, the defendant D, the
executor of the decedent’s estate and trustee of the decedent’s trust,
was defaulted for failure to disclose a defense. Thereafter, the trial court
granted B Co.’s motion for a judgment of strict foreclosure and rendered
judgment thereon. Subsequently, the trial court granted B Co.’s motion
to substitute U Co. as the plaintiff. Thereafter, more than twenty days
after notice of the underlying judgment, the defendants filed a motion
to open the judgment alleging that there was good cause for the default
because D had been ill during the pendency of the foreclosure proceed-
ings, which had prevented him from properly defending the action, and
that they had a good faith belief that a defense existed, namely, that
the loan to the decedent had been made as part of a predatory lending
program run by B. Co. Following an evidentiary hearing, the court denied
the defendants’ motion to open, concluding that the defendants had
failed to present sufficient evidence to establish that there was good
cause to open the judgment. The court further found that even if good
cause had existed, the defendants had been negligent in failing to pursue
any defenses that they believed they may have had. On the defendants’
appeal to this court, held that the trial court did not abuse its discretion in
denying the motion to open, the defendants having failed to demonstrate
good cause that was not based wholly on the merits of the underlying
judgment: at the evidentiary hearing, the defendants focused almost
entirely on B Co.’s fraudulent behavior and predatory lending practices,
and did not offer any evidence regarding D’s alleged illness, which
purportedly had prevented D from defending the foreclosure action, or
any other evidence to explain their failure to disclose a defense prior
to default, and the testimony of the defendants’ former attorney provided
no justification for their failure to investigate the circumstances of the
subject loan prior to the judgment of strict foreclosure; moreover,
although the statute (§ 49-15) governing the opening of judgments of
strict foreclosure did not require the defendants to demonstrate that
they were prevented from making their defenses by mistake, accident,
or other reasonable cause, the trial court properly considered all of the
evidence before it in determining that it was insufficient to justify open-
ing the judgment, and the court’s additional finding that the defendants’
negligence had caused their failure to pursue a defense did not vitiate
its proper finding that they had failed to demonstrate good cause to open
the judgment that was not based wholly on the merits of the judgment.
Argued December 6, 2018–officially released April 30, 2019
Procedural History
Action to foreclose a mortgage on certain real prop-
erty owned by the named defendant et al., and for other
relief, brought to the Superior Court in the judicial dis-
trict of Stamford-Norwalk, where the defendant Mal-
colm L. Grogins, trustee of the Susan Grogins Trust, et
al. were defaulted for failure to appear; thereafter, the
named defendant et al. were defaulted for failure to
disclose a defense; subsequently, the court, Mintz, J.,
granted the plaintiff’s motion for a judgment of strict
foreclosure and rendered judgment thereon; thereafter,
U.S. Bank Trust, N.A., was substituted as the plaintiff;
subsequently, the court, Hon. Kevin Tierney, judge trial
referee, denied the motion to open the judgment of
strict foreclosure filed by the named defendant et al.,
and the named defendant et al. appealed to this
court. Affirmed.
Ridgely Whitmore Brown, with whom, on the brief,
was Benjamin Gershberg, for the appellants (named
defendant et al.).
Robert J. Wichowski, for the appellee (substitute
plaintiff).
Opinion
DiPENTIMA, C. J. In this foreclosure action, the
defendants, David Grogins, executor of the estate of
Anna S. Grogins, and David Grogins and Malcolm L.
Grogins, trustees of the Susan Grogins Trust,1 appeal
from the trial court’s denial of their motion to open the
judgment of strict foreclosure rendered in favor of the
substitute plaintiff, U.S. Bank Trust, N.A., as trustee
for LSF9 Master Participation Trust.2 On appeal, the
defendants argue that the court abused its discretion
in denying their motion to open because the court
improperly applied the procedural requirements set
forth in General Statutes § 52-2123 and, in so doing,
erroneously found that there was no good cause to
open the judgment of strict foreclosure. We disagree
and, accordingly, affirm the judgment of the trial court.
The following facts and procedural history are rele-
vant to this appeal. On July 30, 2014, Bank of America,
N.A., as the original plaintiff, commenced this action
against the defendants. According to the allegations in
the complaint, the decedent, Anna S. Grogins, ‘‘owed
Countrywide Bank, FSB [Countrywide] $625,250, as evi-
denced by a promissory note for said sum,’’ dated July
19, 2007. The note was secured by a mortgage on the
premises known as 21 River Ridge Court in Stamford.
The mortgagee was identified as Mortgage Electronic
Registration, Inc., as nominee for Countrywide. On
November 5, 2009, this mortgage was assigned to BAC
Home Loan Servicing, LP (BAC), which Bank of
America, N.A., subsequently acquired. Prior to Anna S.
Grogins’ death, the note and mortgage were in default
for nonpayment of the principal and interest due on
October 1, 2010. Anna S. Grogins died on December 16,
2010. The complaint further alleged that David Grogins,
executor, ‘‘may claim an interest in [the] premises by
virtue of being the executor of the estate of Anna S.
Grogins,’’ and that David Grogins and Malcolm L. Grog-
ins, trustees, were the current owners of record.
On April 8, 2015, Malcolm L. Grogins, State of Con-
necticut, Department of Revenue Services, and Bank
of America, N.A., were defaulted for failure to appear.
On April 27, 2015, the court, Mintz, J., defaulted David
Grogins for failure to disclose a defense and rendered
judgment of strict foreclosure. The law day was set for
July 28, 2015. On July 27, 2015, David Grogins filed for
bankruptcy, which stayed the foreclosure proceedings.
Following the termination of the bankruptcy stay, the
substitute plaintiff filed a motion to open the judgment,
to make new findings, to reenter judgment after termi-
nation of the bankruptcy stay and to award additional
attorney’s fees and costs. Judge Mintz granted the sub-
stitute plaintiff’s motion and set a new law day for June
28, 2016.
On June 13, 2016, the defendants filed a motion to
open the judgment. The defendants’ motion to open
was an official court form, JD-CV-107, that cited General
Statutes §§ 52-212, 52-212a, and 52-259c, and Practice
Book §§ 17-4 and 17-43. Appended to the defendants’
motion to open was an ‘‘explication’’ that alleged that
David Grogins and Malcolm L. Grogins, as individuals,
had occupied the residence subject to the foreclosure
action since its purchase in the early 2000s. The explica-
tion also alleged that David Grogins had been sick inter-
mittently during the pendency of the foreclosure action
and that his illness, coupled with ‘‘the history of the
loan,’’ constituted ‘‘good cause for [why] the defaults
[had] occurred . . . .’’ Further, the defendants asserted
that they had a good faith belief that a defense existed
to the substitute plaintiff’s complaint, specifically, that
the subject loan ‘‘was part of the [HSSL (High Speed
Swim Lane loan program)] at [Bank of America].’’
On June 27, 2016, Judge Mintz heard oral argument
on the defendants’ motion to open and decided that the
matter warranted a full hearing before Judge Tierney.
Judge Mintz then sua sponte opened the judgment of
strict foreclosure and set a new law day for July 19,
2016. Following a brief hearing on July 11, 2016, the
court, Hon. Kevin Tierney, judge trial referee, sua
sponte opened the judgment of strict foreclosure and
set a new law day for August 2, 2016. Shortly thereafter,
on July 29, 2016, Judge Tierney held an evidentiary
hearing on the defendants’ motion to open.
The hearing was held over a series of nonconsecutive
days, starting on July 29, 2016, and ending on February
7, 2017. The defendants called several witnesses who
testified to matters concerning alleged predatory lend-
ing practices and fraudulent behavior during the pro-
curement of the original loan. The defendants did not
present any evidence regarding the illness of David
Grogins, which purportedly had prevented him from
properly defending the foreclosure action, nor did they
offer any other evidence to explain their failure to dis-
close a defense prior to default. Indeed, the attorney
who represented David Grogins early on in these pro-
ceedings testified at the evidentiary hearing that he did
not disclose a defense because, at the time, he had been
unaware that any defenses existed.
In a memorandum of decision dated April 5, 2017,
Judge Tierney denied the defendants’ June 13, 2016
motion to open. In its decision, the court characterized
the defendants’ claims and arguments as a ‘‘[m]oving
[t]arget’’4 and concluded that they had failed to present
sufficient evidence to support ‘‘any semblance of a
defense’’ to the foreclosure action. Further, the court
found that the evidence demonstrated that, even if a
good defense existed, it was the defendants’ own negli-
gence that occasioned their failure to plead and pursue
such a defense. This appeal followed.
On appeal, the defendants claim that the court erred
in denying their motion to open by improperly applying
§ 52-212, which governs opening civil judgments of
default and nonsuit, when it should have applied Gen-
eral Statutes § 49-15, which governs opening judgments
of strict foreclosure.5 As a result, the defendants argue,
the court incorrectly considered their negligence in fail-
ing to plead their defenses in a timely fashion to be a
dispositive reason for denying their motion to open.
The defendants contend that in seeking to open a judg-
ment of strict foreclosure pursuant to § 49-15, parties
need not show that they were prevented from making
their defense as a result of ‘‘mistake, accident or other
reasonable cause,’’ unlike as required by § 52-212.
Accordingly, without conceding that they were negli-
gent in failing to plead their defenses prior to default,
the defendants submit that negligence is only one factor
that the court should weigh in determining whether to
exercise its equitable authority, and that the court’s
emphasis on the defendants’ negligence undermines its
determination that there was no good cause to open
the judgment.6 We are not persuaded.
Our review of a trial court’s denial of a motion to
open a judgment of strict foreclosure, which was filed
more than twenty days after notice of the underlying
judgment, is narrow.7 ‘‘Generally, an appeal must be
filed within twenty days of the date notice of the judg-
ment or decision is given. . . . In the context of an
appeal from the denial of a motion to open judgment,
[i]t is well established in our jurisprudence that [w]here
an appeal has been taken from the denial of a motion
to open, but the appeal period has run with respect to
the underlying judgment, [this court] ha[s] refused to
entertain issues relating to the merits of the underlying
case and ha[s] limited our consideration to whether the
denial of the motion to open was proper. . . . When
a motion to open is filed more than twenty days after
the judgment, the appeal from the denial of that motion
can test only whether the trial court abused its discre-
tion in failing to open the judgment and not the propriety
of the merits of the underlying judgment.’’ (Internal
quotation marks omitted.) Wells Fargo Bank, N.A. v.
Ruggiri, 164 Conn. App. 479, 484, 137 A.3d 878 (2016).
‘‘Because opening 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.’’ (Citation omitted; internal quotation marks
omitted.) Countrywide Home Loans Servicing, L.P. v.
Peterson, 171 Conn. App. 842, 849, 158 A.3d 405 (2017).
The distinction between a motion to open filed pursu-
ant to § 52-212 and one filed pursuant to § 49-15 was
examined previously by our Supreme Court in Farm-
ers & Mechanics Savings Bank v. Sullivan, 216 Conn.
341, 352–53, 579 A.2d 1054 (1990) (Farmers). There,
the court explained that ‘‘[u]nlike . . . § 52-212, which
provides for opening default judgments generally and
requires a defaulted defendant to show that he had a
good defense that he was prevented from making by
mistake, accident or other reasonable cause, § 49-15
prescribes only four conditions for opening a judgment
of strict foreclosure: (1) that the motion be in writing;
(2) that the movant be a person having an interest in
the property; (3) that the motion be acted upon before
an encumbrancer has acquired title; and (4) that cause,
obviously good cause, be shown for opening the judg-
ment.’’ (Internal quotation marks omitted.) Id. The court
further noted that ‘‘[g]ood cause for opening a foreclo-
sure pursuant to § 49-15 . . . cannot rest entirely upon
a showing that the original foreclosure judgment was
erroneous. Otherwise that statute would serve merely
as a device for extending the time to appeal from the
judgment.’’ Id., 356.
In accordance with Farmers, the defendants in this
case were required to show good cause for opening the
judgment that was not based wholly on the merits of
the judgment. Having reviewed the record and the mem-
orandum of decision, we cannot say that the trial court
abused its discretion when it found that no good cause
existed. As we stated previously, despite alleging in
their motion to open that David Grogins failed to defend
this action due to an intermittent illness, throughout
the several days of testimony, little to no evidence was
presented to support this claim. Further, David Grogins,
in his capacity as executor and trustee, was represented
by counsel when the default was entered against him,
and, during the evidentiary hearing on the motion to
open, his former attorney offered no justification for
the decision not to investigate the circumstances sur-
rounding the July 19, 2007 loan until after judgment of
strict foreclosure had been rendered. See USA Bank v.
Schulz, 143 Conn. App. 412, 419, 70 A.3d 164 (2013)
(‘‘defendant has no basis for claiming an abuse of discre-
tion by the trial court in denying him relief that he could
readily have sought, had he wished to, at a time when
he was represented by competent counsel’’). Although
the court did note that the defendants were negligent
in failing to pursue any defenses that they believed they
may have had, the court also gave consideration to all
the evidence presented and found that it was insuffi-
cient to justify opening the judgment. Thus, irrespective
of the fact that the defendants, in seeking to open the
judgment of strict foreclosure, were not required to
show that they were prevented by ‘‘mistake, accident
or other reasonable cause from . . . making [their]
defenses,’’ as the court’s application of § 52-212 sug-
gested, the application of the wrong statute does not
vitiate the court’s finding that the defendants failed to
show good cause, because that determination is inde-
pendent of the other procedural requirements set forth
in §§ 52-212 and 49-15. See JP Morgan Chase Bank,
N.A. v. Mendez, 320 Conn. 1, 8, 127 A.3d 994 (2015).
Accordingly, the trial court, having properly found that
the defendants had failed to show good cause, did not
abuse its discretion when it denied the defendants’
motion to open the judgment of strict foreclosure pursu-
ant to § 52-212.
The judgment is affirmed and the case is remanded
for the purpose of setting a new law day.
In this opinion the other judges concurred.
1
Bank of America, N.A., and State of Connecticut, Department of Revenue
Services—subordinate lien holders to the mortgage from which this foreclo-
sure action arises—were also named as defendants but are not parties to
this appeal. Accordingly, we refer to David Grogins, executor of the estate
of Anna S. Grogins, and David Grogins and Malcolm L. Grogins, trustees of
the Susan Grogins Trust, as the defendants throughout this opinion and
individually by name where necessary. Further, all references to David
Grogins and Malcolm L. Grogins are to those individuals in their respective
representative capacities unless indicated otherwise.
2
On January 4, 2016, the original plaintiff, Bank of America, N.A., filed a
motion to substitute itself as the plaintiff in this action with U.S. Bank Trust,
N.A., as trustee for LSF9 Master Participation Trust. The court, Mintz, J.,
granted the motion on February 16, 2016.
3
General Statutes § 52-212 (a) provides: ‘‘Any judgment rendered or decree
passed upon a default or nonsuit in the Superior Court may be set aside,
within four months following the date on which it was rendered or passed,
and the case reinstated on the docket, on such terms in respect to costs as
the court deems reasonable, upon the complaint or written motion of any
party or person prejudiced thereby, showing reasonable cause, or that a
good cause of action or defense in whole or in part existed at the time of
the rendition of the judgment or the passage of the decree, and that the
plaintiff or defendant was prevented by mistake, accident or other reason-
able cause from prosecuting the action or making the defense.’’
4
In describing the defendants’ claims with this phrase, the court cited
the 1949 novel of the same name, ‘‘The Moving Target,’’ written by author
Ross Macdonald.
5
General Statutes § 49-15 (a) (1) provides: ‘‘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 provided in subdivision (2) of this subsection.’’
6
The defendants’ motion to open, according to the appended explication,
was brought pursuant to Practice Book §§ 17-4 and 17-43 and ‘‘all JD-CV-
107 criteria.’’ Although the JD-CV-107 form cites several statutes, including
§ 52-212, it does not include any reference to § 49-15. Indeed, at no time
during the evidentiary hearing or at any point prior to this appeal did the
defendants argue that their motion to open was made pursuant to § 49-15.
Irrespective of the defendants’ failure to frame their motion clearly for the
court, we address the merits of the defendants’ claim.
In addressing the defendants’ claim, we note that the substitute plaintiff
argues that the defendants should be foreclosed from raising on appeal an
error that they induced by failing to cite the correct statute in their motion
to open. See Snowdon v. Grillo, 114 Conn. App. 131, 139, 968 A.2d 984(2009) (‘‘[T]he term induced error, or invited error, has been defined as [a]n
error that a party cannot complain of on appeal because the party, through
conduct, encouraged or prompted the trial court to make the erroneous
ruling. . . . It is well established that a party who induces an error cannot
be heard to later complain about that error. . . . This principle bars appel-
late review of induced nonconstitutional and induced constitutional error.
. . . The invited error doctrine rests on principles of fairness, both to the
trial court and to the opposing party.’’ [Internal quotation marks omitted.]).
We decline to apply the invited error doctrine in this case because it is
evident from the court’s decision that it understood § 49-15 to control with
respect to a motion to open a judgment of strict foreclosure. The court
nonetheless applied § 52-212 solely on the basis that the defendants failed
to cite the proper statute in their motion or explication. Given the conscious
disregard of controlling authority, this is not a circumstance that counsels
us to apply the invited error doctrine to avoid unfairness to the trial court.
See Hodgate v. Ferraro, 123 Conn. App. 443, 451–52, 3 A.3d 92 (2010) (invited
error doctrine barred appellate review of plaintiff’s claim that trial court
should not have retroactively applied recent Supreme Court decision where
plaintiff previously had argued to trial court that precedent should be
applied).
7
The judgment of strict foreclosure was rendered on April 27, 2015, and
the defendants filed their motion to open on June 13, 2016.