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N.A. v. Purcell

Court of Appeals of Connecticut

January 29, 2019

PEOPLE'S UNITED BANK, NATIONAL ASSOCIATION
v.
KEVIN PURCELL ET AL.

          Submitted on briefs November 26, 2018

         Procedural History

         Action to foreclose a mortgage on certain real property of the named defendant et al., and for other relief, brought to the Superior Court in the judicial district of Hartford, where the named defendant was defaulted for failure to appear; thereafter, the court, Robaina, J., granted the plaintiff's motion for a judgment of foreclosure and rendered judgment of foreclosure by sale; subsequently, the court, Dubay, J., denied the named defendant's motion to open the judgment and to dismiss; thereafter, the court, Dubay, J., issued an articulation of its decision and denied the named defendant's motion for reconsideration, and the named defendant appealed to this court. Affirmed.

          Loida John-Nicholson filed a brief for the appellant (named defendant).

          Robert J. Piscitelli filed a brief for the appellee (plaintiff).

          Prescott, Elgo and Bear, Js.

          OPINION

          PER CURIAM.

         The defendant Kevin Purcell[1] appeals following the trial court's denial of his motion to open the judgment of foreclosure by sale and to dismiss the action. Specifically, the defendant claims that the trial court should have dismissed the action because it lacked personal jurisdiction over him due to insufficient service of process on him. We affirm the judgment of the trial court.

         The following facts and procedural history are relevant to this appeal. The plaintiff, People's United Bank, National Association, commenced this action against the defendant on June 3, 2016, seeking to foreclose on his mortgaged property located at 180 Palm Street in Hartford. The state marshal's return of service indicated that she served the defendant by leaving the writ of summons and a copy of the complaint at the defendant's usual place of abode, the 180 Palm Street address.

         On July 26, 2016, the defendant was defaulted for failure to appear. The court subsequently rendered a judgment of foreclosure by sale on October 31, 2016. On February 3, 2017, the defendant filed a motion to open the judgment and to dismiss the action, arguing that the court lacked jurisdiction over him because he was never served with the writ of summons and complaint.[2] After an evidentiary hearing, at which both the defendant and the marshal who served him by a bode service testified, the court denied the defendant's motion to open the judgment and to dismiss the plaintiff's action, and set a new sale date.

         The defendant next filed a motion to reargue his motion to open the judgment and for the court to reconsider its ruling, which the court also denied. The defendant then filed this appeal and subsequently moved for an articulation of the court's decision denying his motion to open the judgment and to dismiss the plaintiff's action. In its articulation, the trial court stated that it had credited the testimony of the marshal, noting that her testimony conformed with and expanded upon the information provided in her return of service. Moreover, the court also found that the defendant's testimony was ‘‘inconsistent and entirely incredible.''

         On appeal, the defendant argues that the court improperly denied his motion to open the judgment of foreclosure by sale and to dismiss the action for lack of personal jurisdiction. We disagree.

         We first set forth the applicable legal principles and standard of review that guide our analysis. ‘‘We review a trial court's ruling on motions to open under an abuse of discretion standard. . . . Under this standard, we give every reasonable presumption in favor of a decision's correctness and will disturb the decision only where the trial court acted unreasonably or in a clear abuse of discretion. (Citations omitted; internal quota- tion marks omitted.) GMAC Mortgage, LLC v. Ford, 178 Conn.App. 287, 294-95, 175 A.3d 582 (2017).

         Further, ‘‘[t]he Superior Court . . . may exercise jurisdiction over a person only if that person has been properly served with process, has consented to the jurisdiction of the court or has waived any objection to the court's exercise of personal jurisdiction. . . . When . . . the defendant is a resident of Connecticut who claims that no valid abode service has been made upon her that would give the court jurisdiction over her person, the defendant bears the burden of disproving personal jurisdiction. The general rule putting the burden of proof on the defendant as to jurisdictional issues raised is based on the presumption of the truth of the matters stated in the officer's return. When jurisdiction is based on personal or abode service, the matters stated in the return, if true, confer ...


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