Deutsche Bank National Trust Co. v. McKeith

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DEUTSCHE BANK NATIONAL TRUST COMPANY,
TRUSTEE v. DAVID A. MCKEITH ET AL.
(AC 36540)
Gruendel, Beach and West, Js.
Argued January 12—officially released March 17, 2015
(Appeal from Superior Court, judicial district of New
London, Devine, J. [foreclosure judgment]; Cosgrove,
J. [motion to open judgment].)
Kenneth A. Leary, with whom, on the brief, was
Melissa J. McKeith, self-represented, for the appellant
(defendant Melissa J. McKeith).
Daniel J. Krisch, with whom, on the brief, was Brian
D. Rich, for the appellee (plaintiff).
Opinion
GRUENDEL, J. The defendant Melissa J. McKeith,
also known as Melissa J. Hopkins,1 appeals from the
judgment of the trial court dismissing her motion to
open a judgment of strict foreclosure. She claims that
the court improperly concluded that it lacked jurisdic-
tion to open that judgment. We affirm the judgment of
the trial court.
The relevant facts are as follows. In February, 2010,
the plaintiff, Deutsche Bank National Trust Company,
as Trustee, for HIS Asset Securitization Corporation
Trust 2005-NC1, Mortgage Pass-Through Certificates,
Series 2005-NC1, commenced a foreclosure action
against the defendant and others regarding real prop-
erty known as 29 Bonnie Circle in Groton (property).
In her return of service, state Marshal Barbara Coffey
indicated that she attempted to serve the defendant
with a true and attested verified copy of the relevant
pleadings ‘‘but was unable to locate said defendant in
order to effectuate service.’’ Coffey also notified the
plaintiff’s representatives that the property was vacant
at that time. As a result, the plaintiff filed an application
for an order of notice, in which it averred that ‘‘all
reasonable efforts have been made to ascertain’’ the
whereabouts of the defendant and that those efforts had
‘‘failed.’’ Appended to that application was the sworn
affidavit of Danielle R. Milward, a paralegal in the office
of the plaintiff’s counsel, which detailed various unsuc-
cessful efforts to locate the defendant. On April 26,
2010, the court granted the plaintiff’s application and
ordered ‘‘that notice of the institution of this action be
given to [the defendant] . . . by some proper officer
causing a true and attested copy of this order of notice
to be published in The Day, once a week for one succes-
sive week, commencing on or before May 13, 2010, and
that return of such service be made to this court.’’ The
plaintiff fully complied with that order. The plaintiff
then filed a motion for a finding that no further notice
was required, which the court granted on July 27, 2010.
The plaintiff thereafter filed a motion for default due
to the defendant’s failure to appear, which was granted
on July 26, 2012. The plaintiff then moved for a judgment
of strict foreclosure, which the court rendered on July
30, 2012. Days later, the plaintiff sent the defendant a
‘‘notice of entry of judgment of strict foreclosure,’’ via
certified mail addressed to the property, accompanied
by a letter encouraging her to ‘‘either consult an attor-
ney to appear on your behalf or enter your own appear-
ance in this action. . . . [Y]ou will risk the loss of any
potential equity in the above property if you fail to take
steps to protect your equity.’’ On September 14, 2012,
the United States Postal Service returned that certified
mailing to the plaintiff with the notation, ‘‘Return to
Sender Unclaimed Unable to Forward,’’ affixed thereon.
Title to the property vested in the plaintiff on Septem-
ber 21, 2012. More than one year later, the defendant
filed a motion to open the judgment of strict foreclo-
sure. In that September 26, 2013 motion, the defendant
alleged that she ‘‘lived at the property the entire time
[that service of process was attempted] and continues
to do so to the present day. . . . However, the plaintiff
falsely represented to the court that [she was] unreach-
able, falsely claiming by way of affidavit that [she] did
not live at the property and [was] unreachable.’’ (Cita-
tion omitted.) She thus claimed that because the court
lacked personal jurisdiction over her, the judgment of
strict foreclosure was ‘‘a nullity.’’2 (Internal quotation
marks omitted.) The defendant appended various mort-
gage documents to her motion to open, as well as an
affidavit in support thereof. That affidavit, which identi-
fies the defendant as the ‘‘Affiant,’’ is unsigned, undated,
and unsworn.
In its January 29, 2014 memorandum of decision, the
court determined that ‘‘there is no evidence before the
court to dispute the court’s jurisdiction over [the defen-
dant] at the time of entering the judgment of strict
foreclosure.’’ The court thus concluded that it lacked
jurisdiction to open the judgment of strict foreclosure
and dismissed the defendant’s motion. From that judg-
ment, the defendant now appeals.
The sole issue in this case is whether the court prop-
erly determined that it lacked jurisdiction to open the
judgment of strict foreclosure. That issue presents a
question of law, over which our review is plenary. See
Thompson Gardens West Condominium Assn., Inc. v.
Masto, 140 Conn. App. 271, 278, 59 A.3d 276 (2013). At
the same time, the court’s subordinate factual findings
‘‘are subject to the clearly erroneous standard of review.
. . . A finding of fact is clearly erroneous when there
is no evidence in the record to support it . . . or when
although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite and
firm conviction that a mistake has been committed.’’
(Internal quotation marks omitted.) Myrtle Mews Assn.,
Inc. v. Bordes, 125 Conn. App. 12, 15, 6 A.3d 163 (2010).
As this court has noted, ‘‘Connecticut courts gener-
ally cannot open a civil judgment ‘unless a motion to
open or set aside is filed within four months following
the date on which it was rendered or passed.’ General
Statutes § 52-212a. That general rule does not apply to
judgments of strict foreclosure. Rather, the legislature
has seen fit to distinguish motions to open such judg-
ments by crafting a specific protocol therefor. [General
Statutes] § 49-15 (a) (1) provides in relevant part that
‘[a]ny 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. . . .’ ’’ (Emphasis in
original.) Falls Mill of Vernon Condominium Assn.,
Inc. v. Sudsbury, 128 Conn. App. 314, 319, 15 A.3d 1210
(2011). ‘‘In interpreting that statute, our Supreme Court
has explained that ‘the legislature’s purpose in barring
courts from opening a judgment, after the mortgagor’s
failure to redeem, was not to limit the mortgagee from
further pursuit of its newly vested property rights but
rather to prohibit the mortgagor from subsequent chal-
lenges to the enforceability of the mortgagee’s property
rights.’ New Milford Savings Bank v. Jajer, 244 Conn.
251, 260, 708 A.2d 1378 (1998).’’ Falls Mill of Vernon
Condominium Assn., Inc. v. Sudsbury, supra, 319–20.
It is undisputed that title to the property in question
became absolute in the plaintiff more than one year
before the defendant filed her motion to open, which
precludes resort to § 49-15 (a). Accordingly, the judg-
ment of foreclosure in the present case ‘‘may be opened
only upon a finding that the court lacked jurisdiction
over either the person or the case at the time the judg-
ment of strict foreclosure was entered.’’ Highgate Con-
dominium Assn., Inc. v. Miller, 129 Conn. App. 429,
435, 21 A.3d 853 (2011); see also Argent Mortgage Co.,
LLC v. Huertas, 288 Conn. 568, 576, 953 A.2d 868 (2008)
(although ‘‘a judgment of strict foreclosure ordinarily
cannot be opened after the law day has passed, the
judgment can be attacked on the ground that the court
lacked jurisdiction over the party challenging it’’).
The defendant claims that the court lacked personal
jurisdiction over her at the time that the judgment of
strict foreclosure was rendered. The record before us
indicates otherwise. The return of service filed with the
court on February 4, 2010, reveals that a state marshal
attempted to serve the defendant with a true and
attested verified copy of the relevant pleadings ‘‘but was
unable to locate said defendant in order to effectuate
service.’’ Milward’s affidavit states in relevant part that
‘‘the [s]tate [m]arshal contacted our office and stated
that [the defendant] no longer reside[s] at the [property]
and that the property address is vacant’’; that on or
about February 1, 2010, her ‘‘office conducted a search
of Switchboard.com and 411.com and an [I]nternet data-
base search service known as Accurint [that] did not
yield an alternate address in which to effectuate ser-
vice’’; that the United States Postal Service indicated
to her that it had ‘‘ ‘no change of address order on file’ ’’
for the defendant; and that she conducted ‘‘another
search of Accurint’’ on April 14, 2010, in ‘‘a further
effort to locate’’ the defendant, which ‘‘did not reveal
an alternate address in which to effectuate service.’’
The record contains the plaintiff’s April 15, 2010 applica-
tion for an order of notice, in which it averred that ‘‘all
reasonable efforts have been made to ascertain’’ the
whereabouts of the defendant. Pursuant to General
Statutes § 52-68, the court granted that application and
ordered the plaintiff to provide ‘‘notice of the institution
of this action’’ to the defendant through the publication
of ‘‘a true and attested copy of this order of notice to
be published in The Day, once a week for one successive
week, commencing on or before May 13, 2010, and that
return of such service be made to this court.’’ The record
also contains an affidavit of publication demonstrating
compliance with that order.
Section 52-68 expressly authorizes the manner of ser-
vice of process employed in the present case. Subsec-
tion (a) of § 52-68 provides in relevant part that the court
‘‘may, except where it is otherwise specially provided by
law, make such order as is deemed reasonable, in regard
to the notice which shall be given of the institution or
pendency of all complaints, writs of error and appeals
from probate, which may be brought to or pending in
the Superior Court, when the adverse party, or any
persons so interested therein that they ought to be made
parties thereto, reside out of the state, or when the
names or residences of any such persons in interest
are unknown to the party instituting the proceeding.’’
(Emphasis added.) Subsection (b) of § 52-68 likewise
provides that ‘‘[s]uch notice, having been given and
proved by the affidavit of the officer who served the
notice or by other competent evidence, shall be deemed
sufficient service and notice, and the court may proceed
to a hearing, unless otherwise provided by law, or may
order further notice as it deems reasonable.’’
In its memorandum of decision, the court concluded
that ‘‘there is no evidence before the court to dispute
the court’s jurisdiction over [the defendant] at the time
of entering the judgment of strict foreclosure,’’ empha-
sizing that the affidavit that the defendant appended to
her motion to open was ‘‘neither signed nor sworn to.’’
We concur with that assessment. Although the defen-
dant relies heavily on that affidavit in this appeal, it
remains that ‘‘an unsigned and unsworn affidavit . . .
is of no evidentiary value.’’ Viola v. O’Dell, 108 Conn.
App. 760, 768, 950 A.2d 539 (2008).
Moreover, the court in its memorandum of decision
expressly credited the ‘‘matters stated in the marshal’s
return and [Milward’s affidavit],’’ as was its exclusive
prerogative as arbiter of credibility.3 The court’s finding
that the plaintiff complied with the April 26, 2010 order
of notice, and thereby effectuated service of process
pursuant to § 52-68, is substantiated by the record and,
thus, is not clearly erroneous. The record contains no
evidence on which we can conclude that the court
improperly issued an order of notice pursuant to § 52-
68.4 Under the plain terms of that statute, compliance
therewith ‘‘shall be deemed sufficient service and
notice, and the court may proceed to a hearing . . . .’’
General Statutes § 52-68 (b). We therefore agree with
the court that the defendant has not established a lack
of personal jurisdiction at the time that the judgment
of strict foreclosure was rendered. For that reason, the
court properly dismissed the motion to open.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Although the plaintiff’s complaint also named David A. McKeith, Founda-
tion Financial Group, and Lawrence and Memorial Hospital as defendants,
only Melissa J. McKeith has appealed from the judgment of the trial court.
We therefore refer to her as the defendant in this opinion.
2
In her motion to open, the defendant also alleged lack of standing and
unclean hands on the part of the plaintiff. She does not raise either of those
claims in this appeal.
3
‘‘There is a presumption of truth afforded to the statements in the mar-
shal’s return.’’ Dickerson v. Pincus, 154 Conn. App. 146, 152, A.3d
(2014).
4
As the three page transcript reflects, the trial court heard a very brief
argument on the defendant’s motion to open on October 15, 2013. No wit-
nesses or documentary evidence were produced at that time. At oral argu-
ment before this court, the defendant’s appellate counsel claimed that the
trial court erred in failing to apprise the defendant, who at that time was
self-represented, that her affidavit was unsworn or to invite her to testify
under oath as a witness at the October 15, 2013 proceeding. The defendant’s
counsel then stated that, in so doing, the court ‘‘made a mistake’’ by ‘‘brushing
the matter aside’’ and seizing ‘‘a technical opportunity to get the case
over with.’’
We reject that contention for two reasons. First and foremost, ‘‘it is well
settled that arguments cannot be raised for the first time at oral argument.’’
J.E. Robert Co. v. Signature Properties, LLC, 309 Conn. 307, 328 n.20, 71
A.3d 492 (2013). The defendant has not briefed such a claim in any manner.
Second, ‘‘[i]n Connecticut, our appellate courts do not presume error on
the part of the trial court. . . . Rather, the burden rests with the appellant
to demonstrate reversible error.’’ (Citation omitted; internal quotation marks
omitted.) Jalbert v. Mulligan, 153 Conn. App. 124, 145, 101 A.3d 279, cert.
denied, 315 Conn. 901, 104 A.3d 107 (2014). The defendant has not met that
burden, as she has provided this court with no authority for the proposition
that the trial court in this case was obligated to act sua sponte to advise
her of any evidential shortcomings. As our Supreme Court has noted, in
electing to proceed as a self-represented party, the defendant was ‘‘bound
by the same rules of evidence and procedure as those qualified to practice
law.’’ Cersosimo v. Cersosimo, 188 Conn. 385, 394, 449 A.2d 1026 (1982).