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Wachovia Mortgage, FSB v. Toczek

Court of Appeals of Connecticut

May 14, 2019

WACHOVIA MORTGAGE, FSB
v.
PAWELTOCZEK ET AL.

          Argued March 6, 2019

         Procedural History

         Action to foreclose a mortgage on certain real property owned by the named defendant, and for other relief, brought to the Superior Court in the judicial district of Stamford-Norwalk, where the court, Mintz, J., granted the motion to intervene as a party defendant filed by Aleksandra Toczek; thereafter, Wells Fargo Bank, N.A., was substituted as the plaintiff; subsequently, the court rendered a judgment of strict foreclosure, from which the defendant Aleksandra Toczek appealed to this court, which dismissed the appeal; thereafter, the court, Mintz, J., granted the substitute plaintiff's motion to open the judgment and to extend the law days and rendered a judgment of strict foreclosure, from which the defendant Aleksandra Toczek appealed to this court, which affirmed the judgment and remanded the case for the purpose of setting new law days; subsequently, the court, Genuario, J., granted the substitute plaintiff's motion to reset the law days and set new law days, and the defendant Aleksandra Toczek appealed to this court; thereafter, the court, Genuario, J., issued an order terminating the automatic appellate stay for any subsequent appeals; subsequently, this court dismissed the appeal and granted the motion for review filed by the defendant Aleksandra Toczek but denied the relief requested therein; thereafter, the defendant Aleksandra Toczek filed motions for reconsideration en banc; subsequently, the court, Genuario, J., granted the substitute plaintiff's motion to reset the law days and set new law days, and the defendant Aleksandra Toczek appealed to this court; thereafter, this court denied the defendant Aleksandra Toczek motions for reconsideration en banc; subsequently, the substitute plaintiff filed a motion to dismiss the appeal; thereafter, the court, Genuario, J., denied the motion to open the judgment and to extend the law days filed by the defendant Aleksandra Toczek; subsequently, the court, Genuario, J., denied the motion to reargue filed by the defendant Aleksandra Toczek, and the defendant Aleksandra Toczek filed an amended appeal; thereafter, the substitute plaintiff filed a motion to dismiss the appeal and the amended appeal. Reversed; further proceedings; motion to dismiss appeal denied; amended appeal dismissed.

          Aleksandra Toczek, self-represented, the appellant (intervening defendant).

          David M. Bizar, with whom, on the memorandum, was J. Patrick Kennedy, for the appellee (substitute plaintiff).

          Alvord, Keller, Elgo, Bright and Moll, Js.

          OPINION

          BRIGHT, J.

         In this foreclosure action, the self-represented defendant, Aleksandra Toczek, [1] appeals from the judgments of the trial court granting the motion of the plaintiff Wells Fargo Bank, N.A., [2] to reset the law days and denying her motions to open the judgment of strict foreclosure and extend the law days and to reargue. On November 2, 2018, the plaintiff filed a motion to dismiss the appeal as frivolous. On February 14, 2019, the plaintiff filed a second motion to dismiss this appeal as moot and the amended appeal as moot and frivolous. That motion followed this court's order of February 4, 2019, in which we raised the question of whether the trial court's order resetting the law days should be summarily reversed as being in contravention of the appellate stay. After considering the parties' written submissions on that question and hearing oral argument on the matter, we conclude that, under binding authority from our Supreme Court, the trial court acted in contravention of the appellate stay when it reset the law days. We, therefore, deny the plaintiff's motion to dismiss the appeal and reverse the court's judgment granting the plaintiff's motion to reset the law days and setting the law days. We agree, however, that the defendant's amended appeal is frivolous and, therefore, grant the plaintiff's motion to dismiss the amended appeal.

         The following procedural history is relevant to our analysis. In November, 2008, the original plaintiff, Wachovia Mortgage, FSB, filed this action seeking to foreclose a mortgage on real property located at 15 Kenilworth Drive West in Stamford. In February, 2014, the court, Mintz, J., rendered a judgment of strict foreclosure. The defendant appealed to this court, which dismissed her appeal for lack of diligence.

         The trial court then reentered the judgment of strict foreclosure in February, 2015. On appeal, this court affirmed the judgment and remanded the case to the trial court for the purpose of setting new law days. Wachovia Bank, FSB v. Toczek, 170 Conn.App. 904, 155 A.3d 830 (2017), cert. denied, 328 Conn. 914, 180 A.3d 961 (2018). The plaintiff filed a motion for order to reset the law days in accordance with this court's remand order, which the court, Genuario, J., granted, setting the first law day for July 24, 2018.

         On May 18, 2018, pursuant to Practice Book § 61-11 (d) and (e), the plaintiff filed a motion to terminate the automatic appellate stay in § 61-11 (a) prospectively for any subsequent appeals filed, [3] which the court granted. On July 10, 2018, the defendant filed a third appeal from the court's resetting the law days. On July 16, 2018, the defendant filed a timely motion for review of the order of the trial court terminating the appellate stay. The plaintiff thereafter filed a motion to dismiss the third appeal as frivolous.

         On September 6, 2018, a panel of this court granted the plaintiff's motion to dismiss the third appeal as frivolous and granted the defendant's motion for review but denied the relief requested therein. On Monday, September 17, 2018, the defendant filed timely motions for reconsideration en banc of the September 6, 2018 decisions dismissing the third appeal as frivolous and denying relief from the termination of the appellate stay. On October 31, 2018, this court en banc denied the defendant's motions for reconsideration of the dismissal of the third appeal and the defendant's motion for review.

         On September 14, 2018, before the period for seeking reconsideration under Practice Book § 71-5 had expired, the plaintiff filed in the trial court a motion to reset the law days following this court's dismissal of the third appeal as frivolous. The defendant filed an objection, arguing that the trial court could not reset the law days during the pendency of her motions for reconsideration en banc of the dismissal of the third appeal and the prospective termination of the appellate stay. On October 15, 2018, while the defendant's motions for reconsideration en banc were still pending before this court, the trial court granted the plaintiff's motion to reset the law days and set the first law day for December 4, 2018. The defendant filed the present, and fourth, appeal on October 25, 2018, challenging the October 15, 2018 order of the trial court resetting the law days, and, thereafter, the plaintiff filed a motion to dismiss the appeal as frivolous.

         On November 26, 2018, the defendant filed a motion to open the judgment of strict foreclosure and extend the law days, which the trial court denied. The defendant filed a motion to reargue, which the court denied. The defendant amended her fourth appeal to add the trial court's denial of her motions to open and to reargue. The plaintiff then filed a motion ...


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