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Federal National Mortgage Association v. Farina

Court of Appeals of Connecticut

June 26, 2018

FEDERAL NATIONAL MORTGAGE ASSOCIATION
v.
RICHARD FARINA ET AL.

          Argued February 13, 2018

         Procedural History

         Summary process action brought to the Superior Court in the judicial district of New Britain, Housing Session, where the court, Hon. Henry S. Cohn, judge trial referee, granted the motions to dismiss filed by the named defendant et al. and rendered judgment of dismissal, from which the plaintiff appealed to this court. Reversed; further proceedings.

          Robert J. Wichowski, for the appellant (plaintiff).

          William E. Carter, for the appellee (named defendant).

          DiPentima, C. J., and Prescott and Elgo, Js.

          OPINION

          ELGO, J.

         In this summary process action, the plaintiff, Federal National Mortgage Association, appeals from the judgment of dismissal in favor of the defendant Richard Farina.[1] On appeal, the plaintiff claims that the trial court improperly concluded that it lacked standing to bring the present action. The plaintiff contends that, pursuant to a judgment of strict foreclosure, title to the subject property vested absolutely in the plaintiff on April 25, 2016, and, therefore, as the owner of the property, it had standing to prosecute the summary process action. The defendant, by contrast, claims that title never passed to the plaintiff in the foreclosure action because an appellate stay was in effect that prevented the law days from passing and, thus, the defendant is still the title holder of the property. We agree with the plaintiff and reverse the judgment of the trial court.

         The following facts and procedural history are relevant to this appeal. The defendant owned a residential property known as 100 Town Line Road in Plainville that was encumbered by a mortgage that had been assigned to BAC Home Loans Servicing, LP (BAC Home Loans), by an assignment of mortgage recorded on the Plainville land records. In July, 2009, BAC Home Loans brought an action to foreclose on the mortgage due to the defendant's failure to meet the payment obligations on the underlying note. On February 3, 2012, BAC Home Loans filed a motion for summary judgment, in which it argued that there were no genuine issues of material fact regarding the allegations of its complaint and that it was entitled to judgment as a matter of law. The court granted that motion and rendered summary judgment in favor of BAC Home Loans as to liability only on March 5, 2012. The trial court thereafter granted BAC Home Loans' motion to substitute Bank of America, N.A., as the plaintiff after a merger between BAC Home Loans and Bank of America, N.A.

         On June 19, 2012, Bank of America, N.A., filed a motion for judgment of strict foreclosure, and the defendant filed an objection to said motion on September 10, 2012. The court granted the motion for a judgment of strict foreclosure on September 10, 2013, and set law days to commence on October 7, 2013. On September 16, 2013, the defendant filed his first appeal with this court, in which he challenged the summary judgment rendered as to liability and the judgment of strict foreclosure. This court ultimately affirmed the propriety of the judgment and remanded the case to the trial court for the purpose of setting new law days. See BAC Home Loans Servicing, LP v. Farina, 154 Conn.App. 265, 107 A.3d 972 (2014), cert. denied, 316 Conn. 908, 111 A.3d 884 (2015).

         On May 11, 2015, the defendant filed with the trial court a motion to vacate summary judgment and strict foreclosure on the basis of newly discovered facts. The defendant amended the motion to vacate on July 8, 2015, which the court treated as a motion to open. The court denied that motion on August 3, 2015.

         On July 7, 2015, Bank of America, N.A., filed a motion to open and a motion to substitute the plaintiff as the plaintiff in the underlying foreclosure action. The court granted the motions on August 3, 2015.[2] On August 13, 2015, the defendant filed a motion to reargue his July 8, 2015 motion to open. On August 14, 2015, the court denied the defendant's motion to reargue. The defendant appealed from the court's denial of the motion to reargue and the motion to open on September 1, 2015. On October 28, 2015, this court dismissed the defendant's second appeal as frivolous. The plaintiff subsequently, on November 10, 2015, filed a motion to open the judgment to reenter judgment after appeal and to award additional attorney's fees. The court granted the motion on December 21, 2015, reentered judgment, and set new law days to commence on January 25, 2016.

         On January 21, 2016, the defendant filed a motion to open, which was denied by the court on January 25, 2016. In its order, the court set new law days for February 29, 2016. The defendant also filed a motion to dismiss, pursuant to Practice Book § 10-30, on January 21, 2016, and attached to said motion was an ‘‘affidavit of truth'' signed by the defendant. On February 29, 2016, the court extended the law days to March 28, 2016, and, on March 1, 2016, the court denied the defendant's motion to dismiss. On March 16, 2016, the defendant filed a motion to reargue the motion to dismiss, which the court denied on March 28, 2016, and extended the law days to April 25, 2016.

         On April 15, 2016, the defendant appealed from the court's denials of the motion to dismiss and motion to reargue. On May 4, 2016, the plaintiff moved to dismiss the defendant's appeal, arguing that the defendant's appeal was ‘‘untimely, as no automatic stay was in effect pursuant to . . . Practice Book § 61-11 (g). Further, [the] defendant did not file an affidavit as required by . . . § 61-11 (g), and therefore no automatic stay was in effect. For that reason, [the] defendant's law day remained April 25, 2016, which has since passed, and title has vested absolutely in [the] plaintiff. As title vested absolutely in [the] plaintiff, [this court] is without jurisdiction to hear [the] defendant's appeal. [The] plaintiff filed this motion to dismiss within ten days of the date on which title vested absolutely in ...


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