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The Bank of New York Mellon v. Talbot

Court of Appeals of Connecticut

July 11, 2017

THE BANK OF NEW YORK MELLON, TRUSTEE
v.
JAMES W. TALBOT ET AL.

          Argued February 16, 2017.

         Appeal from Superior Court, judicial district of Stamford-Norwalk, Mintz, J.

         Procedural History

         Action to foreclose a mortgage on certain real property owned by the named defendant et al., brought to the Superior Court in the judicial district of Stamford-Norwalk, where the named defendant et al. were defaulted for failure to appear; thereafter, counsel for the named defendant filedan appearance; subsequently, the court, Mintz, J., granted the plaintiff's motion for a judgment of strict foreclosure and rendered a judgment of foreclosure by sale; thereafter, the named defendant was defaulted for failure to plead; subsequently, the court granted the plaintiff's motion to open and to vacate the default judgment; thereafter, the court granted the plaintiff's motion for a judgment of strict foreclosure and rendered a judgment of foreclosure by sale; subsequently, the court denied the named defendant's motions to reargue and to open the judgment, and the named defendant appealed to this court. Affirmed.

          Francis Lieto, with whom, on the brief, was Nicole L. Barber, for the appellant (named defendant).

          Benjamin T. Staskiewicz, for the appellee (plaintiff).

          Lavine, Prescott and Bishop, Js.

         Syllabus

         The plaintiff bank sought to foreclose a mortgage on certain real property of the defendant T. When T failed to file an appearance or any responsive pleadings, the plaintiff filed a motion for default for failure to appear and a motion for a judgment of strict foreclosure. After T was defaulted for failure to appear, counsel for T filed an appearance, which, by operation of law pursuant to the applicable rule of practice (§ 17-20 [d]), set aside the default for failure to appear. Subsequently, T was defaulted for failure to plead on January 29, 2014. Two days prior to the granting of that default, however, on January 27, 2014, the trial court rendered a judgment of foreclosure by sale. The trial court subsequently granted the plaintiff's motion to open and to vacate that judgment, which the plaintiff sought for the purpose of allowing it more time to review T for a possible short sale. After a mediation period had terminated, the plaintiff filed a second motion for a judgment of strict foreclosure that was based on the January 29, 2014 default for failure to plead, which had not been set aside. Before the court ruled on that motion, T filed an answer and special defenses, and a motion to set aside the default for failure to plead, which the trial court denied. Thereafter, the court rendered a judgment of foreclosure by sale, and T appealed to this court. On appeal, the parties did not dispute that the trial court erred in ordering the first foreclosure judgment on January 27, 2014, but they disagreed on the effect that the first foreclosure judgment had on the court clerk's subsequent granting of the default for failure to plead and the second foreclosure judgment rendered on that default. T claimed that the trial court abused its discretion in granting the plaintiff's second foreclosure motion because the default for failure to plead was void ab initio, as it was entered after the first foreclosure motion had been granted erroneously, and, thus, the second foreclosure motion was predicated on an invalid entry of default. Held that the trial court did not abuse its discretion in rendering the second judgment of foreclosure by sale, as it was predicated on a valid entry of default against T for failure to plead; because the first foreclosure judgment was predicated on the default for failure to appear, which had been automatically set aside by operation of law when T's counsel filed an appearance, the first foreclosure judgment was void ab initio, as it was predicated on a default that had been cured, and it thus had no legal effect or bearing on the validity of the subsequent default for failure to plead, which was predicated on a valid motion for default filed by the plaintiff that was granted by the court clerk, and because T filed his answer and special defenses after the plaintiff filed its second motion for a judgment of strict foreclosure, pursuant to the applicable rule of practice (§ 17-32 [b]), the default for failure to plead was not automatically set aside and the court had discretion to deny the motion to set aside the default filed by T, who did not challenge that decision on appeal.

          OPINION

          BISHOP, J.

         In this foreclosure action, the defendant James W. Talbot appeals from the judgment of foreclosure by sale, rendered in favor of the plaintiff, The Bank of New York Mellon, formerly known as The Bank of New York, as Trustee for the Certificate holders of CWALT, Inc., Alternative Loan Trust 2007-OH3, Mortgage Pass-Through Certificates, Series 2007-OH3.[1] The defendant claims on appeal that the court abused its discretion because the judgment of foreclosure by sale was predicated on a default that had been entered in error. We affirm the judgment of the trial court.

         The following facts and procedural history are relevant to this claim. The defendant owned real property in New Canaan for which he executed and delivered to Countrywide Home Loans, Inc. (Countrywide), a note for a loan in the principal amount of $2, 280, 000. As security for the note, on May 25, 2007, the defendant executed and delivered a mortgage on the property to Mortgage Electronic Registration Systems, Inc., as nominee for Countrywide. The mortgage was recorded on May 31, 2007, and later was assigned to the plaintiff on October 19, 2011. The assignment was recorded on November 1, 2011. The plaintiff, stating that the note was in default, elected to accelerate the balance due on the note, and provided written notice to the defendant of its intention to foreclose on the property unless the note was paid in full. The defendant did not cure the default, and on July 20, 2012, the plaintiff filed this foreclosure action against the defendant.

         The defendant did not file an appearance or any responsive pleadings over the following eighteen months, and on December 13, 2013, the plaintiff filed a motion for default against the defendant for failure to appear, which the court clerk granted on December 24, 2013. The plaintiff also filed, on December 13, 2013, a motion for judgment of strict foreclosure (first foreclosure motion), on which the court did not immediately rule. Counsel for the defendant later filed an appearance on January 2, 2014, which, by operation of law, set aside the default for failure to appear. Practice Book § 17-20 (d). Following the filing of this appearance, the defendant failed to file any responsive pleadings, and on January 22, 2014, the plaintiff filed a motion for default against the defendant for failure to plead, which the court clerk granted on January 29, 2014. The defendant made no attempt to set aside this default. Two days prior to the granting of the default, however, on January 27, 2014, the court, Mintz, J., rendered a judgment of foreclosure by sale (first foreclosure judgment), rather than a strict foreclosure, as the plaintiff had requested in its December 13, 2013 motion for judgment of strict foreclosure. The defendant made no attempt to vacate the judgment. The plaintiff, however, filed a motion asking the court to open and to vacate the judgment of foreclosure by sale on March 13, 2014. The plaintiff requested in its motion that the court open the judgment ‘‘for the purpose of allowing the plaintiff additional time to review the [defendant] for a possible short sale.'' The motion to open was not based on the fact that the judgment had been rendered in the absence of a valid entry of default. The court granted the motion to open on March 31, 2014.

         The case was continued multiple times over the next year as the parties participated in foreclosure mediation, and on June 3, 2015, the foreclosure mediator submitted a final report to the court certifying that the mediation period had terminated. On June 23, 2015, new counsel for the defendant filed an appearance, but the defendant still failed to file any responsive pleadings. Thereafter, on July 14, 2015, the plaintiff filed its second motion for judgment of strict foreclosure (second ...


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