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Gmac Mortgage, LLC v. Demelis

Court of Appeals of Connecticut

April 17, 2018

GMAC MORTGAGE, LLC
v.
DANIEL DEMELIS ET AL.

          Argued on February 1, 2018

         Procedural History

         Action to foreclose a mortgage on certain real property owned by the named defendant et al., and for other relief, brought to the Superior Court in the judicial district of Middlesex, where the court, Aurigemma, J., rendered a judgment of foreclosure by sale; thereafter, the court granted the defendant Courtney Demelis' motion to open the judgment; subsequently, the court granted the plaintiff's motion to substitute Ditech Financial, LLC, as the plaintiff; thereafter, the court denied the defendant Courtney Demelis' motion to dismiss; subsequently, the court granted the substitute plaintiff's motion to open the judgment and rendered a judgment of strict foreclosure; thereafter, the court denied the defendant Courtney Demelis' motion for articulation, and the defendant Courtney Demelis appealed to this court. Affirmed.

          C. Michael Budlong, with whom was Emily C. Thaller, for the appellant (defendant Courtney Demelis).

          S. Bruce Fair, with whom, on the brief, was Victoria L. Forcella, for the appellee (substitute plaintiff).

          Sheldon, Bright and Flynn, Js.

          OPINION

          BRIGHT, J.

         The defendant Courtney Demelis[1] appeals from the judgment of strict foreclosure rendered by the trial court in favor of the substitute plaintiff, Ditech Financial, LLC (Ditech).[2] The defendant claims that the court abused its discretion by: (1) denying her motion to dismiss for the original plaintiff's failure to comply with an order of the court; (2) denying her motion to dismiss based on the original plaintiff's failure to prosecute the case with reasonable diligence; and (3) denying her postjudgment motion for articulation, reconsideration and/or reargument. We affirm the judgment of the trial court.

         The following facts and procedural history are relevant to this appeal. In January, 2011, the original plaintiff commenced this foreclosure action by writ, summons and complaint with a return date of February 8, 2011. The defendant appeared and requested participation in the court's foreclosure mediation program. The parties engaged in mediation until July 1, 2011, when the mediation was terminated as unsuccessful. Thereafter, the parties engaged in discovery, after which the original plaintiff moved for a judgment of strict foreclosure on March 12, 2012. The court held a hearing on the motion and, on April 2, 2012, rendered a judgment of foreclosure by sale. The defendant then filed three motions to open the judgment and extend the sale date, all of which were granted. Following the granting of the defendant's last motion to open, the court set the sale date for September 14, 2013.

         Just prior to the sale date, on September 13, 2013, the defendant filed a petition for bankruptcy pursuant to title 11, chapter 13, of the United States Code, which caused the sale of the foreclosed property to be stayed. On March 10, 2014, the Bankruptcy Court dismissed the defendant's bankruptcy petition. Consequently, on April 4, 2014, the original plaintiff filed a motion requesting that the trial court open the judgment and reset the sale date for the foreclosed property. In its motion to open the judgment and set a new sale date, the original plaintiff informed the court that the defendant's bankruptcy petition had been dismissed on March 10, 2014. That motion was not heard by the court for more than two years.

         Instead, on July 6, 2015, the court, sua sponte, issued an order pursuant to Practice Book § 14-3 requiring the original plaintiff to file an affidavit by August 6, 2015, stating the status of the defendant's bankruptcy petition and whether a motion for relief from stay had been filed. The court's order stated that ‘‘[c]ounsel for the plaintiff must file an affidavit by [August 6, 2015] . . . . Failure to comply with the above order within thirty (30) days hereof will result in dismissal pursuant to [Practice Book §] 14-3.'' The original plaintiff did not comply with the court's order. Neither the court nor the parties took any further action in the case until March 31, 2016, when the original plaintiff filed a motion to substitute Ditech as the party plaintiff, following the assignment of the subject note and mortgage to Ditech. The motion was unopposed, and the court granted it on April 18, 2016.

         Thereafter, on September 22, 2016, the defendant filed a motion to dismiss the case on two grounds. First, the defendant claimed that the case should be dismissed pursuant to Practice Book § 14-3 due to the original plaintiff's lack of diligence in prosecuting the action. Second, she claimed that the case should be dismissed because the original plaintiff never complied with the court's July 6, 2015 order. According to the defendant, because that order stated that the case will be dismissed if the original plaintiff did not comply, the order was self-executing and dismissal was required. The court considered the defendant's motion to dismiss on October 17, 2016. At the same time, the court also considered, for the first time, the original plaintiff's April 4, 2014 motion to open judgment. The court denied the defendant's motion to dismiss, granted the original plaintiff's motion to open, and rendered a judgment of strict foreclosure. On November 7, 2016, the defendant filed a motion for articulation, reconsideration and/or reargument. The court denied the motion on November 8, 2016. This appeal followed.

         Because the defendant, in each of her three claims, argues that the court abused its discretion, we begin by setting forth the standard of review. ‘‘In reviewing a claim that [the] discretion [of the trial court] has been abused, the unquestioned rule is that great weight is due to the action of the trial court and every reasonable presumption should be given in favor of its correctness. . . . [T]he ultimate issue is whether the court could reasonably ...


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