DocketNumber: No. CV 95 57215 S
Citation Numbers: 1995 Conn. Super. Ct. 5217, 14 Conn. L. Rptr. 500
Judges: SFERRAZZA, J.
Filed Date: 5/30/1995
Status: Non-Precedential
Modified Date: 4/17/2021
During oral argument, the plaintiff asserted that it was seeking to open the judgment because Citibank, a second mortgagee, who did not receive notice pursuant to § 354, intends to redeem. Predictably, the second mortgagee also urges the court to grant the plaintiff's motion to open and set new law days. At that time, the court raised, sua sponte, the issue of whether the court lacks jurisdiction to hear the matter because the motion was not heard until after the law days had run. In response, the plaintiff and Citibank argued that, because plaintiff did not comply with the notification requirements of Practice Book § 354, title never became absolute despite the passing of the law days.
General Statutes, §
In the present case, the plaintiff and Citibank argue that because no notice was given pursuant to Practice Book § 354, title never became absolute. The only case law the court's research disclosed regarding the consequences of failing to comply with Practice Book § 354 involved situations where a defendant moved to open the foreclosure judgment more than four months after the entry of the default judgment. In these cases, the courts have held that failure to comply with Practice Book § 354 serves to extend the four-month period within which the defendants may seek to set aside the judgment against them.DiSimone v. Vitello,
If a party files a motion to open a judgment before the appeal period has expired, the automatic stay provision created by Rules of Appellate Procedure § 4046 is triggered. Farmers Mechanics Savings Bank v. Sullivan,
In the present case, the court entered a judgment of strict foreclosure on March 20, 1995. The Rules of Appellate Procedure § 4009 states that in terms of a motion to open the judgment "the period of time for filing an appeal shall commence from the issuance of notice of the decision." Thus, if the plaintiff had properly notified Citibank, pursuant to Practice Book § 354, the appeal period would have expired on April 10, 1995. On May 4, 1995, the plaintiff filed a motion to open the judgment. If the court determines that the appeal period has lapsed the mere filing of a motion to open judgment fails to stop the running of the law days and title from becoming absolute. Kilduff v. Adams,
Equity dictates that the motion be granted. Citibank, a second mortgagee was never given notice of default judgment and seeks to redeem. The plaintiff, as first mortgagee wants Citibank to have the opportunity to redeem. Furthermore, the resetting of the law days benefits all defendants giving them another opportunity to redeem.
Accordingly, the motion to open judgment is granted and a new law day for the owner of the equity of redemption is set for July 11, 1995, the subsequent days for encumbrancers.
Sferrazza, J. CT Page 5220