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HSBC Bank USA, N.A. v. Lahr

Court of Appeals of Connecticut

May 3, 2016

HSBC BANK USA, NATIONAL ASSOCIATION
v.
CAMILLE LAHR ET AL.

Argued December 7, 2015

Appeal from Superior Court, judicial district of Fairfield, Hon. Richard P. Gilardi, judge trial referee.

Nicholas Stanisci, for the appellant (named defendant).

William R. Dziedzic, for the appellee (plaintiff).

DiPentima, C. J., and Mullins and Norcott, Js.

OPINION

DiPentima, C. J.

The defendant Camille Lahr, also known as Camille M. Russo-Lahr, appeals from the judgment of strict foreclosure rendered in favor of the plaintiff, HSBC Bank USA, National Association. On appeal, she claims that the court improperly denied her motion to open the judgment of strict foreclosure. Specifically, she argues that no further actions should have occurred in the case after she had filed a suggestion of death regarding the defendant Charles Lahr (decedent)[1] until the plaintiff applied for an order to substitute the decedent’s executor or administrator as provided in General Statutes § 52-599, the survival of cause of action statute. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. On January 3, 2013, the plaintiff commenced a foreclosure action against the defendant and the decedent. In its complaint, the plaintiff alleged that they owed Opteum Financial Services, LLC, $187, 000, and that this debt was secured by a mortgage on property located at 155 Lambert Drive in Stratford. The mortgage was transferred to the plaintiff, and it became the party entitled to collect the debt. The plaintiff claimed that the note and mortgage were in default by virtue of nonpayment as of June 1, 2011. The plaintiff sought a foreclosure of the mortgage, immediate possession of the property, a deficiency judgment, the appointment of a receiver to collect rents and profits, reasonable attorney’s fees, and other such relief as required.

On May 16, 2014, the court granted the plaintiff’s motion to default the defendant for failing to plead. On June 5, 2014, the court granted the plaintiff’s motion to default the decedent for failing to appear. On April 9, 2014, the plaintiff moved for a judgment of strict foreclosure.

The defendant filed a suggestion of death on August 11, 2014.[2] It stated that the decedent had died on January 27, 2014.[3] It also referenced § 52-599 and indicated that ‘‘the action should be stayed until the plaintiff proceeds pursuant to [that statute].’’

On August 18, 2014, the court granted the plaintiff’s motion for a judgment of strict foreclosure.[4] It found the fair market value of the property to be $149, 000, the debt to be $217, 302.20, and attorney’s fees in the amount of $3100. It also set the law day for October 14, 2014. The defendant’s counsel did not attend the hearing on August 18, 2014.

On September 9, 2014, the defendant moved to open the judgment of strict foreclosure. She again argued that because a suggestion of death had been filed prior to the rendering of judgment, the court should not have proceeded until the plaintiff complied with § 52-599. The court heard argument on September 29, 2014. The defendant’s counsel requested that the court open and vacate the judgment of strict foreclosure because it was not ‘‘proper’’ for the court to render a judgment until the plaintiff substituted a representative of the estate for the decedent. The plaintiff’s counsel countered that such a substitution was unnecessary because the plaintiff had filed a lis pendens[5] on the land records, and, therefore, pursuant to General Statutes § 52-325, [6] it was not obligated or required to take any further action. After hearing further argument, the court denied the defendant’s motion. It set the new law day for November 18, 2014. This appeal followed.

In her appellate brief, the defendant iterated her argument that § 52-599 caused the case to have no vitality after the suggestion of death had been filed and until a representative of the estate had been substituted for the decedent. She further contended that §§ 52-599 and 52-325 may be harmonized by requiring the plaintiff to substitute the decedent’s executor following which § 52-325 would make all further proceedings binding on subsequent takers of the property. The plaintiff countered, inter alia, that § 52-325 controls, and that it was not required to make any substitution in this case.

Following oral argument before this court, we ordered the parties to file supplemental briefs to address the applicability and effect of General Statutes § 52-600 in the present case. Section 52-600 provides: ‘‘If there are two or more plaintiffs or defendants in any action, one or more of whom die before final judgment, and the cause of action survives to or against the others, the action shall not abate by reason of the death. After the death is noted on the record, the action shall proceed.’’ We conclude ...


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