American Tax Funding, LLC v. Gore

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AMERICAN TAX FUNDING, LLC v. WILLIAM T.
GORE, JR., ET AL.
(AC 41541)
Lavine, Bright and Flynn, Js.
Syllabus
The substitute plaintiff, T Co., sought to foreclose municipal tax liens on
certain real property owned by the defendant G. Following G’s failure
to pay his property taxes for a number of years, the town of Stratford
imposed liens on his property and recorded them on the town land
records. Thereafter, the tax liens were assigned to A Co., which recorded
the assignment on the land records. After A Co. had commenced this
action, it assigned the tax liens to T Co., which was substituted as the
plaintiff. The trial court rendered judgment of strict foreclosure and,
thereafter, denied G’s motion to open the judgment and extend the law
days, and G appealed to this court, claiming that, because he had equity
in the property the judgment had been improper when it was rendered.
Held that the trial court did not abuse its discretion in denying G’s
motion to open the judgment of strict foreclosure, as the trial court had
considered arguments similar to those that he raised in his motion to
open before it rendered judgment, but he failed to provide the requested
documentation to the court; moreover, G failed to allege that he was
prevented by mistake, accident or other reasonable cause from raising
his claims at the hearing held before the trial court rendered judgment
and failed to appeal from the judgment of strict foreclosure.
(One judge dissenting)
Argued November 20, 2019—officially released May 5, 2020
Procedural History
Action to foreclose municipal tax liens on certain
real property owned by the named defendant, and for
other relief, brought to the Superior Court in the judicial
district of Fairfield, where the court, Hartmere, J.,
granted the plaintiff’s motion for summary judgment as
to liability; thereafter, the court granted the motion to
substitute ATFH Real Property, LLC, as the plaintiff;
subsequently, the court, Truglia, J., rendered judgment
of strict foreclosure; thereafter, the court, Hon. William
B. Rush, judge trial referee, denied the named defen-
dant’s motion to open the judgment and extend the
law days, and the named defendant appealed to this
court. Affirmed.
William T. Gore, Jr., self-represented, the appellant
(named defendant).
Opinion
BRIGHT, J. In this municipal tax foreclosure case,
the defendant William T. Gore, Jr.,1 appeals from the
judgment of the trial court denying his motion to open
the judgment of strict foreclosure rendered in favor of
the substitute plaintiff, ATFH Real Property, LLC.2 On
appeal, the defendant claims that the court abused its
discretion in denying his motion to open the judgment
because he had equity in the home and, therefore, the
judgment of strict foreclosure had been improper when
it was rendered. We affirm the judgment of the trial
court.
The following facts, revealed by the record, and rele-
vant procedural history inform our review of the defen-
dant’s claim. On August 13, 2010, the plaintiff com-
menced, by service of process, a foreclosure case
against the defendant, seeking to foreclose on property
located at 15 Grove Street in Stratford (property) on the
basis of the defendant’s alleged failure to pay property
taxes on the property beginning on October 1, 2006.
The complaint alleged that the town of Stratford had
filed certificates of lien on the land records, that it
subsequently assigned its certificates of lien to the plain-
tiff, that the plaintiff had filed its assignment on the
land records, and that the plaintiff had recorded a notice
of lis pendens, a copy of which was attached to the com-
plaint.
On November 2, 2010, the court granted the plaintiff’s
motion for summary judgment as to liability. On Febru-
ary 22, 2011, the plaintiff filed a motion for a judgment
of strict foreclosure, to which the defendant objected,
specifically on the ground that the plaintiff allegedly
‘‘failed to honor a previously made payment agreement
by refusing to accept the agreed down payment.’’ The
court granted the motion for judgment of strict foreclo-
sure on March 14, 2011. Following various motions and
bankruptcy stays over the years, the court, Truglia, J.,
on November 20, 2017, rendered a judgment of strict
foreclosure, with law days commencing on March 20,
2018.3 No appeal was taken from that judgment.
On March 14, 2018, the defendant, acting as a self-
represented party, filed a motion to open the judgment
and extend the law days. In his accompanying memo-
randum, the defendant stated that his motion was filed
pursuant to General Statutes § 52-212, and he contended
that there were significant discrepancies in the amount
he owed to the defendant. The court held a hearing on
March 20, 2018, at which the defendant was asked why
he failed to raise these issues before Judge Truglia
rendered the judgment of strict foreclosure. The defen-
dant stated that he had been ‘‘in court on November
22 . . . requesting an opportunity to resolve discrepan-
cies . . . [but] [u]nfortunately Judge Truglia didn’t give
[him] the opportunity to express that. In fact, he gave
the appearance that there was bias in favor of the plain-
tiff at that hearing.’’ The court, Hon. William B. Rush,
judge trial referee, thereafter denied the motion to open.
The defendant then filed the present appeal.
Following oral argument in this appeal, which only
the defendant attended,4 we ordered the court to articu-
late the basis for its denial of the defendant’s motion
to open. Judge Rush issued the following articulation:
‘‘The issues raised by the defendant . . . were appar-
ently presented to and ruled upon by Judge Truglia and
would require the court to review the record existing
at the time Judge Truglia made the rulings and then
decide whether this court agreed or disagreed with
those determinations. It is not the function of this court
. . . to pass judgment on rulings made by a coequal
trial judge.’’
The defendant claims that the court abused its discre-
tion in denying his motion to open the judgment of
strict foreclosure because he had equity in the property
and, therefore, the judgment of strict foreclosure had
been improper when it was rendered. We are not per-
suaded.
‘‘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. Generally, an appeal must be filed
within twenty days of the date notice of the judgment
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.’’ (Footnote
omitted; internal quotation marks omitted.) Bank of
America, N.A. v. Grogins, 189 Conn. App. 477, 483–84,
208 A.3d 662, cert. denied, 332 Conn. 902, 208 A.3d 659
(2019). A motion to open the judgment, filed pursuant
to § 52-212, can be granted by the trial court provided
that the ‘‘defendant [can] show that he had a good
defense that he was prevented from making by mistake,
accident or other reasonable cause . . . .’’ (Internal
quotation marks omitted.) Id., 484.
In the present case, the defendant moved to open
the judgment of strict foreclosure on the ground that
there were discrepancies in the amount of the debt.
He contended that the plaintiff’s history of payments
differed from other histories, including that of the bank-
ruptcy trustee and his own computations. He also again
contended in his motion that an encumbrance on the
property had been released, leaving him with additional
equity in the property. Judge Rush denied the motion
to open on the ground that Judge Truglia already had
considered similar arguments before he rendered judg-
ment. On appeal, the defendant has failed to demon-
strate how Judge Rush abused his discretion in denying
the motion to open. The defendant raised an issue
regarding equity in the property before Judge Truglia
but failed to provide the requested documentation to
support his contention. See footnote 3 of this opinion.
Along with his memorandum in support of his motion
to open, the defendant submitted some documentation
to support his claim that the computation of debt may
be inaccurate, but he again did not submit the specific
release that had been argued before Judge Truglia.
See id.
Furthermore, the defendant’s motion to open does
not allege that he was prevented from raising either of
his claims before Judge Truglia by mistake, accident or
other reasonable cause. Instead, when asked by Judge
Rush why he did not raise these issues before Judge
Truglia, the defendant stated that he tried, but Judge
Truglia did not give him an opportunity to do so. To
the extent that the defendant takes issue with how
Judge Truglia handled the case before rendering the
judgment of strict foreclosure, the defendant’s proper
remedy was to appeal from the judgment rendered by
Judge Truglia, not to seek a second bite of the apple
before Judge Rush. Consequently, we conclude that the
trial court did not abuse its discretion when it denied
the defendant’s motion to open.
The judgment is affirmed.
In this opinion LAVINE, J., concurred.
1
Bank of American, N.A., also is named as a defendant but is not involved
in this appeal. For convenience, we refer to Gore as the defendant throughout
this opinion.
2
The original complaint was brought by American Tax Funding, LLC. On
March 14, 2011, ATFH Real Property, LLC, was substituted by the trial court
as the plaintiff in this matter. We refer in this opinion to American Tax
Funding, LLC, as the plaintiff, and to ATFH Real Property, LLC, as the
substitute plaintiff.
3
The record reveals that the defendant, also on November 20, 2017, filed
an objection to the November 16, 2017 affidavit of debt signed by Dana
Marini, the vice president of the substitute plaintiff, and requested that
Marini be required to appear because the amount of the debt to which
Marini averred was different from the defendant’s calculation by approxi-
mately $4529. During oral argument at the November 20, 2017 hearing, the
defendant’s attorney then told Judge Truglia that there was approximately
$33,000 in equity on the property because a subsequent $192,000 Bank of
America lien had been released. The substitute plaintiff’s attorney stated
that if counsel could provide paperwork to support that contention, he would
look at it. Apparently, the defendant’s attorney had no such paperwork.
Accordingly, Judge Truglia reentered judgment and reset the law days.
4
The substitute plaintiff also elected not to file an appellee’s brief. Conse-
quently, we are deciding this case on the basis of the appellant’s brief, his
oral argument, and the record. See Practice Book § 70-3 (b).