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Countrywide Home Loans Servicing L.P. v. Peterson

Court of Appeals of Connecticut

March 28, 2017


          Argued November 29, 2016

         (Appeal from Superior Court, judicial district of Middlesex, Domnarski, J. [judgment]; C. Taylor, J. [motion to open; motion to reargue])

          Alyssa S. Peterson, self-represented, the appellant (named defendant).

          Christopher J. Picard, for the appellee (substitute plaintiff).

          Keller, Prescott and West, Js.


          PER CURIAM.

          The named defendant, Alyssa Peterson, [1] who represented herself before the trial court and continues to do so on appeal, challenges the judgment of the court (1) denying her motion to open the court's judgment of strict foreclosure, and (2) denying her motion to reargue the motion to open. The defendant's principal claim, and the only one we need address at length, [2] is that the court improperly declined to open the judgment of strict foreclosure in order to correct an erroneous determination of the debt owed by the defendant. We affirm the judgment of the court.

         The operative facts underlying this appeal are as follows. On April 21, 2009, Countrywide Home Loans Servicing L.P. (Countrywide) commenced this action seeking foreclosure of a mortgage on property owned by the defendant in Middletown (property).[3] On May 26, 2010, the court granted Countrywide's motion for summary judgment as to liability only. Countrywide subsequently merged with another entity, which thereafter assigned the mortgage and note to the substituted plaintiff, Green Tree Servicing LLC (plaintiff). On December 22, 2014, the court rendered a judgment of strict foreclosure, finding a debt of $350, 051.71 plus costs and fees, and setting the commencement of the law days for January 26, 2015. On January 26, 2015, the defendant moved to open the judgment, arguing, inter alia, that the trial court should recalculate the debt to reflect the fact that there was a private mortgage insurance policy[4] on the property. The court, without stating its reasons, denied the motion on the same day. On February 17, 2015, the defendant filed a motion to reargue the motion to open. The court denied that motion on February 19, 2015, again without providing its reasoning. The defendant appealed from the denial of both motions on March 11, 2015.

         As a preliminary matter, we clarify the procedural posture of this appeal. As previously mentioned, on January 26, 2015, when the law days were set to commence, the defendant filed her motion to open, which the court denied on the same day. The denial of the motion to open was an appealable final judgment; see TD Banknorth, N.A. v. White Water Mountain Resorts of Connecticut, Inc., 133 Conn.App. 536, 542 n.7, 37 A.3d 766 (2012); from which an automatic twenty day stay arose. See Practice Book §§ 61-11 (a) and 63-1 (a). The defendant filed her motion to reargue on the final day of the twenty day appeal period; see Practice Book § 63-1 (c); thereby giving rise to a new twenty day appeal period commencing upon the denial of the motion to reargue and extending the existing appellate stay. See Gibbs v. Spinner, 103 Conn.App. 502, 506 n.4, 930 A.2d 53 (2007). On the final day of the new appeal period, the defendant appealed from the denial of both motions to this court. The defendant's claims as to the motion to open and her motion to reargue are therefore properly before this court. The defendant cannot, however, challenge the merits of the December 22, 2014 judgment of strict foreclosure in this appeal because she filed the motion to open on January 26, 2015-more than twenty days after the court rendered the judgment of strict foreclosure. See Alix v. Leech, 45 Conn.App. 1, 3-4, 692 A.2d 1309, 1311 (1997).

         Before proceeding to our analysis of the defendant's claim, we address the plaintiff's argument that this court lacks subject matter jurisdiction over the appeal on mootness and ripeness grounds. As to mootness, the plaintiff's reasoning proceeds as follows: the defendant did not place her motion to open on the short calendar pursuant to Practice Book § 11-13 (a); therefore, the trial court was without authority to hear the motion; hence the law day has passed and title has vested in the plaintiff, meaning that this court cannot afford the defendant any practical relief. We disagree.

         Practice Book § 11-13 (a) provides in relevant part: ‘‘Unless otherwise provided in these rules or ordered by the judicial authority . . . all motions and objections to requests when practicable . . . must be placed on the short calendar list. No motions will be heard which are not on said list and ought to have been placed thereon; provided that any motion in a case on trial, or assigned for trial, may be disposed of by the judicial authority at its discretion, or ordered upon the short calendar list on terms, or otherwise.'' Thus, § 11-13 (a) ‘‘allows for the expeditious, alternative, discretionary hearing of motions. The court need not place a motion on a short calendar list if to do so would delay the proceedings.'' Udolf v. West Hartford Spirit Shop, Inc., 20 Conn.App. 733, 736, 570 A.2d 240 (1990). The court's ruling on the defendant's motion to open was, impliedly, a determination that calendaring the matter would unnecessarily delay the proceeding, and therefore was not improper.[5] The plaintiff's reliance on Fattibene v. Kealey, 18 Conn.App. 344, 558 A.2d 677 (1989), is misplaced. In Fattibene, the defendant's motion to impose sanctions of attorney's fees was granted by the trial court before the plaintiff could file an objection and despite never having been placed on the short calendar. Id., 352-53. In the present case, however, the plaintiff suffered no such harm because the defendant's motion to open was summarily denied. The defendant's motion to open, therefore, was not required to be placed on the short calendar. Accordingly, the defendant's appeal is not moot.

         Nor do we conclude that, as the plaintiff contends, the appeal is unripe. ‘‘[T]he rationale behind the ripeness requirement is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements . . . [and we therefore] must be satisfied that the case before [us] does not present a hypothetical injury or a claim contingent upon some event that has not and indeed may never transpire.'' (Internal quotation marks omitted.) Office of the Governor v. Select Committee of Inquiry, 271 Conn. 540, 570, 858 A.2d 709 (2004). The plaintiff argues that this appeal should be dismissed on ripeness grounds because the defendant's claim involves the proper calculation of the amount of the deficiency, and the court has yet to render a deficiency judgment. See General Statutes § 49-14. The plaintiff continues: ‘‘[The defendant] sets forth in her brief that the primary concern was the determination of any deficiency balance due to . . . her chapter 13 bankruptcy plan.'' We disagree because we decline to read the defendant's claim so narrowly. Whether her ultimate aim is to have the deficiency judgment, if and when rendered, reduced to reflect the fact that the plaintiff's loss has been partially satisfied from the proceeds of a private mortgage insurance policy on the property, the defendant is at this stage merely seeking recalculation of the debt that the court found in its judgment of strict foreclosure. Because the amount of the debt has already been determined by the trial court, our consideration of this issue is not premature even though a deficiency judgment has not been formally rendered.[6] Accordingly, the defendant's appeal is ripe for adjudication.

         We now turn to the defendant's principal claim. She argues that the court should have opened the judgment of strict foreclosure in order to recalculate the debt to reflect that (1) the plaintiff had collected, or will collect, a portion of the outstanding debt under a private mortgage insurance policyon the property; and (2) the defendant, for a period of time, paid premiums on the policy. The defendant asserts that she paid premiums on the policy before declaring chapter 13 bankruptcy, and that the plaintiff paid, and may be continuing to pay, the premiums after the bankruptcy.

         The following legal principles guide our analysis. ‘‘Any judgment foreclosing the title to real estate by strict foreclosure may, at the discretion of the court rendering the judgment, upon the written motion of any person having an interest in the judgment and for cause shown, be opened and modified, notwithstanding the limitation imposed by section 52-212a, upon such terms as to costs as the court deems reasonable, provided no such judgment shall be opened after the title has ...

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