Bank of New York Mellon v. Talbot

 THE BANK OF NEW YORK MELLON, TRUSTEE v.
JAMES W. TALBOT ET AL.
(AC 38489)
Lavine, Prescott and Bishop, Js.
Syllabus
The plaintiff bank sought to foreclose a mortgage on certain real property
of the defendant T. When T failed to file an appearance or any responsive
pleadings, the plaintiff filed a motion for default for failure to appear
and a motion for a judgment of strict foreclosure. After T was defaulted
for failure to appear, counsel for T filed an appearance, which, by
operation of law pursuant to the applicable rule of practice (§ 17-20
[d]), set aside the default for failure to appear. Subsequently, T was
defaulted for failure to plead on January 29, 2014. Two days prior to
the granting of that default, however, on January 27, 2014, the trial court
rendered a judgment of foreclosure by sale. The trial court subsequently
granted the plaintiff’s motion to open and to vacate that judgment, which
the plaintiff sought for the purpose of allowing it more time to review
T for a possible short sale. After a mediation period had terminated,
the plaintiff filed a second motion for a judgment of strict foreclosure
that was based on the January 29, 2014 default for failure to plead,
which had not been set aside. Before the court ruled on that motion,
T filed an answer and special defenses, and a motion to set aside the
default for failure to plead, which the trial court denied. Thereafter, the
court rendered a judgment of foreclosure by sale, and T appealed to
this court. On appeal, the parties did not dispute that the trial court
erred in ordering the first foreclosure judgment on January 27, 2014,
but they disagreed on the effect that the first foreclosure judgment had
on the court clerk’s subsequent granting of the default for failure to
plead and the second foreclosure judgment rendered on that default. T
claimed that the trial court abused its discretion in granting the plaintiff’s
second foreclosure motion because the default for failure to plead was
void ab initio, as it was entered after the first foreclosure motion had
been granted erroneously, and, thus, the second foreclosure motion was
predicated on an invalid entry of default. Held that the trial court did
not abuse its discretion in rendering the second judgment of foreclosure
by sale, as it was predicated on a valid entry of default against T for
failure to plead; because the first foreclosure judgment was predicated
on the default for failure to appear, which had been automatically set
aside by operation of law when T’s counsel filed an appearance, the
first foreclosure judgment was void ab initio, as it was predicated on a
default that had been cured, and it thus had no legal effect or bearing
on the validity of the subsequent default for failure to plead, which was
predicated on a valid motion for default filed by the plaintiff that was
granted by the court clerk, and because T filed his answer and special
defenses after the plaintiff filed its second motion for a judgment of
strict foreclosure, pursuant to the applicable rule of practice (§ 17-32
[b]), the default for failure to plead was not automatically set aside and
the court had discretion to deny the motion to set aside the default filed
by T, who did not challenge that decision on appeal.
Argued February 16—officially released July 11, 2017
(Appeal from Superior Court, judicial district of
Stamford-Norwalk, Mintz, J.)
Procedural History
Action to foreclose a mortgage on certain real prop-
erty owned by the named defendant et al., brought to
the Superior Court in the judicial district of Stamford-
Norwalk, where the named defendant et al. were
defaulted for failure to appear; thereafter, counsel for
the named defendant filed an appearance; subsequently,
the court, Mintz, J., granted the plaintiff’s motion for
a judgment of strict foreclosure and rendered a judg-
ment of foreclosure by sale; thereafter, the named
defendant was defaulted for failure to plead; subse-
quently, the court granted the plaintiff’s motion to open
and to vacate the default judgment; thereafter, the court
granted the plaintiff’s motion for a judgment of strict
foreclosure and rendered a judgment of foreclosure by
sale; subsequently, the court denied the named defen-
dant’s motions to reargue and to open the judgment, and
the named defendant appealed to this court. Affirmed.
Francis Lieto, with whom, on the brief, was Nicole
L. Barber, for the appellant (named defendant).
Benjamin T. Staskiewicz, for the appellee (plaintiff).
Opinion
BISHOP, J. In this foreclosure action, the defendant
James W. Talbot appeals from the judgment of foreclo-
sure by sale, rendered in favor of the plaintiff, The Bank
of New York Mellon, formerly known as The Bank of
New York, as Trustee for the Certificateholders of
CWALT, Inc., Alternative Loan Trust 2007-OH3, Mort-
gage Pass-Through Certificates, Series 2007-OH3.1 The
defendant claims on appeal that the court abused its
discretion because the judgment of foreclosure by sale
was predicated on a default that had been entered in
error. We affirm the judgment of the trial court.
The following facts and procedural history are rele-
vant to this claim. The defendant owned real property
in New Canaan for which he executed and delivered
to Countrywide Home Loans, Inc. (Countrywide), a note
for a loan in the principal amount of $2,280,000. As
security for the note, on May 25, 2007, the defendant
executed and delivered a mortgage on the property
to Mortgage Electronic Registration Systems, Inc., as
nominee for Countrywide. The mortgage was recorded
on May 31, 2007, and later was assigned to the plaintiff
on October 19, 2011. The assignment was recorded on
November 1, 2011. The plaintiff, stating that the note
was in default, elected to accelerate the balance due
on the note, and provided written notice to the defen-
dant of its intention to foreclose on the property unless
the note was paid in full. The defendant did not cure
the default, and on July 20, 2012, the plaintiff filed this
foreclosure action against the defendant.
The defendant did not file an appearance or any
responsive pleadings over the following eighteen
months, and on December 13, 2013, the plaintiff filed
a motion for default against the defendant for failure
to appear, which the court clerk granted on December
24, 2013. The plaintiff also filed, on December 13, 2013,
a motion for judgment of strict foreclosure (first fore-
closure motion), on which the court did not immedi-
ately rule. Counsel for the defendant later filed an
appearance on January 2, 2014, which, by operation of
law, set aside the default for failure to appear. Practice
Book § 17-20 (d). Following the filing of this appear-
ance, the defendant failed to file any responsive plead-
ings, and on January 22, 2014, the plaintiff filed a motion
for default against the defendant for failure to plead,
which the court clerk granted on January 29, 2014. The
defendant made no attempt to set aside this default.
Two days prior to the granting of the default, however,
on January 27, 2014, the court, Mintz, J., rendered a
judgment of foreclosure by sale (first foreclosure judg-
ment), rather than a strict foreclosure, as the plaintiff
had requested in its December 13, 2013 motion for judg-
ment of strict foreclosure. The defendant made no
attempt to vacate the judgment. The plaintiff, however,
filed a motion asking the court to open and to vacate
the judgment of foreclosure by sale on March 13, 2014.
The plaintiff requested in its motion that the court open
the judgment ‘‘for the purpose of allowing the plaintiff
additional time to review the [defendant] for a possible
short sale.’’ The motion to open was not based on the
fact that the judgment had been rendered in the absence
of a valid entry of default. The court granted the motion
to open on March 31, 2014.
The case was continued multiple times over the next
year as the parties participated in foreclosure media-
tion, and on June 3, 2015, the foreclosure mediator
submitted a final report to the court certifying that the
mediation period had terminated. On June 23, 2015,
new counsel for the defendant filed an appearance, but
the defendant still failed to file any responsive plead-
ings. Thereafter, on July 14, 2015, the plaintiff filed
its second motion for judgment of strict foreclosure
(second foreclosure motion), on the basis of the default
for failure to plead, which had been granted on January
29, 2014, and had never been set aside.
Before the court ruled on the plaintiff’s second fore-
closure motion, the defendant filed, on July 16, 2015,
his answer and special defenses. Additionally, he filed
a motion to set aside the January 29, 2014 default for
failure to plead. In his motion, he alleged that he had
‘‘diligently [pursued] a short sale throughout the term
of the mediation,’’ that ‘‘[t]he plaintiff will not be preju-
diced, in any way, by the setting aside of the default,
as mediation was just terminated a month ago,’’ and
that he had hired new counsel who ‘‘needs time to
review the applicable complaint as well as interview
the defendant to determine if he has any defenses
. . . .’’ After a hearing, the court, on July 27, 2015,
summarily denied the defendant’s motion to set aside
the default for failure to plead. The defendant does not
challenge this decision on appeal.
On July 27, 2015, the court again rendered a judgment
of foreclosure by sale (second foreclosure judgment),
rather than the strict foreclosure that the plaintiff had
requested in its second foreclosure motion. The defen-
dant filed a motion to reargue/reconsider the court’s
denial of his motion to set aside the default for failure
to plead, and a motion to reargue/reconsider the court’s
granting of the plaintiff’s second foreclosure motion.
After a hearing, the court denied both motions on Sep-
tember 28, 2015. This appeal followed.
On appeal, the parties do not dispute that the court
erred in ordering the first foreclosure judgment on Janu-
ary 27, 2014. They disagree, however, on the effect that
the January 27, 2014 judgment had on the clerk’s subse-
quent granting of a default for failure to plead and the
second foreclosure judgment rendered on that default.
The defendant argues that the court abused its discre-
tion in granting the plaintiff’s second foreclosure
motion. Specifically, he argues that the default for fail-
ure to plead was void ab initio because it was entered
after the first foreclosure motion had been granted erro-
neously, and, therefore, the second foreclosure motion
was predicated on an invalid entry of default. In
response, the plaintiff argues that the validity of the
default for failure to plead was not affected by the
erroneous granting of the first foreclosure motion, and,
therefore, the second foreclosure judgment, the opera-
tive judgment, was predicated on a valid entry of
default. We agree with the plaintiff.
We first set forth our standard of review. ‘‘The stan-
dard of review of a judgment of foreclosure by sale or
by strict foreclosure is whether the trial court abused
its discretion. . . . 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.)
People’s United Bank v. Bok, 143 Conn. App. 263, 267,
70 A.3d 1074 (2013).
We next review the relevant legal and procedural
principles that govern our analysis. Practice Book § 17-
20 (d) provides in relevant part that when a party is in
default for failure to appear, ‘‘[i]f 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. . . .’’ If a judgment
is rendered ‘‘based on a default which had been set
aside automatically,’’ the judgment is void ab initio and
without legal effect. Hartford Provision Company v.
Salvatore’s Restaurant, Inc., Superior Court, judicial
district of Hartford-New Britain at Hartford, Docket No.
CV-92-0509323-S (March 7, 1994) (11 Conn. L. Rptr. 252).
‘‘General Statutes § 52-119 provides that [p]arties fail-
ing to plead according to the rules and orders of the
court may be . . . defaulted . . . . Section 10-18 of
our rules of practice essentially mirrors that language.’’
(Internal quotation marks omitted.) People’s United
Bank v. Bok, supra, 143 Conn. App. 268. ‘‘[T]he effect
of a default is to preclude the defendant from making
any further defense in the case so far as liability is
concerned . . . .’’ Practice Book § 17-33 (b). Practice
Book § 17-33 (b) provides that when a party is in default
for failure to plead, ‘‘the judicial authority, at or after
the time it renders the default . . . may also render
judgment in foreclosure cases . . . .’’ If the defaulted
party has filed an answer before judgment is rendered,
however, the default is automatically set aside by opera-
tion of law. Practice Book § 17-32 (b). If a motion for
judgment already has been filed by the adverse party
at the time the defaulted party files his answer, however,
‘‘the default may be set aside only by the judicial author-
ity.’’ Practice Book § 17-32 (b).
Applying these procedural rules to the present case,
we conclude that the default for failure to plead was
properly entered on January 29, 2014, and it was not
affected by the court’s rendering and then setting aside
of the first judgment. As a consequence, the second
motion for foreclosure was predicated on a valid entry
of default against the defendant. In so determining, we
look first at the plaintiff’s motion for default for failure
to appear, which it filed with its first foreclosure motion
on December 13, 2013, over one month before the plain-
tiff filed the motion for default for failure to plead.
Therefore, contrary to the defendant’s assertion that
the first foreclosure judgment was predicated on the
default for failure to plead, it would appear, instead,
that the first foreclosure judgment was actually predi-
cated on the default for failure to appear, which was
granted by the clerk on December 24, 2013. Before the
court rendered the judgment of foreclosure by sale,
however, the defendant’s counsel filed an appearance
on January 6, 2014. Accordingly, the default for failure
to appear was automatically set aside by operation of
law, pursuant to Practice Book § 17-20 (d), rendering
the first foreclosure judgment void ab initio, as it was
predicated on that now cured default.
Therefore, the first foreclosure judgment, having no
legal effect, had no legal bearing on the validity of the
subsequent default for failure to plead, which was predi-
cated on a valid motion filed by the plaintiff on January
22, 2014, and granted by the clerk on January 29, 2014.
Because the defendant filed his answer after the plain-
tiff filed its second motion for a judgment of strict
foreclosure, the default for failure to plead was not
automatically set aside, pursuant to Practice Book § 17-
32 (b). Therefore, the court had the discretion to deny
the defendant’s motion to set aside the default. Because
the defendant does not challenge on appeal the court’s
denial of his motion to set aside the default, we need
not determine whether the court correctly denied the
motion.
The court, thereafter, rendered judgment of foreclo-
sure by sale, on July 27, 2015, predicated on a valid
entry of default for failure to plead, which was entered
on January 29, 2014. Accordingly, the court did not
abuse its discretion in rendering the judgment of fore-
closure by sale against the defendant.
The judgment is affirmed and the case is remanded
for the purpose of setting a new sale date.
In this opinion the other judges concurred.
1
The plaintiff also served as defendants: Sharon Talbot; Bank of America,
N.A.; United States of America, Internal Revenue Service; Olympic Construc-
tion, LLC; and Optos Inc. The defendant James Talbot solely brought this
appeal, and, therefore, any reference to the defendant is to James Talbot
unless otherwise indicated.