DocketNumber: No. CV94 031 85 63
Citation Numbers: 2000 Conn. Super. Ct. 3677, 27 Conn. L. Rptr. 24
Judges: MOTTOLESE, JUDGE.
Filed Date: 3/30/2000
Status: Non-Precedential
Modified Date: 4/17/2021
On January 11, 1999 the defendant filed a motion to open judgment pursuant to G.S. §
The court heard evidence on February 8 and 9. During the course of the hearing it became evident that in 1996 the defendant conveyed his entire interest in the property to his wholly owned corporation, Wentworth Contracting, LTD. The plaintiff moved orally that the motion to reopen be denied because Joseph Voll no longer had an interest in the property subject to the foreclosure and therefore no longer had standing to pursue the motion.
Having reserved decision on the motion, the court now finds that Joseph Voll has not lost his standing by virtue of the conveyance because G.S. §
The defendant claims to have proved that he and the plaintiff had an agreement for what amounts to an open ended succession of law day extensions, each contingent upon a pay down of the debt, and that through inadvertence neither party moved for an extension prior to the October 6th law day. The court finds that CT Page 3679 the defendant has failed to prove any such agreement, either expressed or implied.
The defendant's attempt to structure an agreement out of his attorney's letter of December 8, 1998 is unavailing. It is apparent from Attorney John Bryk's testimony that the letter does not memorialize an oral agreement. At most, the letter constituted an offer which was never accepted because it came too late, the city already having previously filed its certificate of title absolute. To be sure, each motion when granted by the court constituted a separate agreement to pay fixed sums, usually monthly, in consideration for an elongated law day. The defendant did not abide by these agreements but on the eve of each law day paid enough money to earn him a further extension. The eleventh hour payments however, ceased when no one reminded Mr. Voll of the imminence of the October 6th law day. Thus, the defendant's law day came and went without the defendant making any payment. Notwithstanding, even after law day had passed, specifically on October 20, 1998, the defendant through his attorney, was offered the opportunity to pay the debt and have the judgment reopened and vacated. The defendant disputed the amount of the debt which the plaintiff claimed was due and so declined the defendants invitation.
As an alternative position the defendant argues that a contract may be implied from the conduct of the parties Bershstein,Bershstein Bershstein v. Nemeth,
As a final argument, the defendant relies on New MilfordSavings Bank v. Jager,
In Jager the court departed from its long standing adherence to the principle that the prohibition against opening a judgment of strict foreclosure after title has become absolute is conclusive. The court modified that long standing categorical rule to allow for exceptions under limited circumstances. This court does not CT Page 3680 read Jager as conferring blanket authority upon the court to set aside a foreclosure judgment after title has vested whenever equitable circumstances dictate. While the court chose language broad enough to embrace such a power1 this court does not believe that this statement is anything more than a generalized expression of the more limiting principle which the court introduced for the first time, viz: "§
In conclusion, New Milford Savings Bank v. Jager does not support the authority of the court to open a judgment of strict foreclosure after law day has passed and title has vested where the moving party is the mortgagor and not the mortgagee and there has been no waiver. Id. at 261 n. 15. By analogy, in this case, in the absence of waiver the court has no power to grant the motion to reopen filed by a taxpayer after law day and after title has vested and become absolute.
Farmers Mechanics Savings Bank v. Sullivan, supra, does not bolster the defendant's case. In that case the court invoked equitable principles to correct a grossly unfair result which stemmed from a circumstance not considered by the court at the time that judgment was entered. In that case the Supreme Court held that not only was the judgment of strict foreclosure erroneous but also that the law day set in the judgment was of no force and effect because the filing of the motion to reopen automatically stayed the effectiveness of the law day. Thus, unlike the instant case, the court in Sullivan was not dealing with a situation where title had in fact become absolute prior to a hearing on the motion. In the instant case, the motion was filed long after title had become absolute and is based not upon the claim of an erroneous form of judgment but rather upon a claim that parties had reached an agreement either expressly or impliedly that law day should be extended to an unspecified date. In Sullivan, the unwarranted windfall resulted not from the acts or omission of the owner of the equity but rather from the CT Page 3681 judgment of the trial court. Here the windfall, if any, accruing to the city results from the inaction of the owner for which he must assume full responsibility.
For the foregoing reasons the motion to reopen is denied.
Mottolese, Judge