U.S. BANK TRUST, N.A., TRUSTEE
v.
GARY M. GIBLEN ET AL.
Argued
February 5, 2019
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 Stamford-Norwalk,
where the named defendant et al. were defaulted for failure
to appear and the defendant JPMorgan Chase Bank et al. were
defaulted for failure to plead; thereafter, the court,
Mintz, J., rendered a judgment of
foreclosure by sale; subsequently, the court, Hon. Kevin
Tierney, judge trial referee, granted in part, the
committee's motion for approval of sale, deed, fees and
expenses, and the named defendant et al. appealed to this
court. Affirmed.
Christopher G. Brown, for the appellants (named defendant et
al.).
Christopher J. Picard, for the appellee (plaintiff).
Sheldon, Moll and Seeley, Js. [*]
OPINION
SHELDON, J.
In this
foreclosure action, the defendant mortgagors, Gary M. Giblen,
also known as Gary Giblen, and Anna-Marie L. Giblen, also
known as Anna-Marie Giblen, [1] appeal from the judgment of the
trial court approving the sale of their mortgaged property,
on the motion of the committee of sale (committee), following
the court's rendering of a judgment of foreclosure by
sale in favor of the plaintiff mortgagee, U.S. Bank Trust,
N.A., as Trustee for LSF9 Master Participation Trust. On
appeal, the defendants claim that (1) the trial court's
approval of the sale of the subject property was void ab
initio because it exceeded the scope of the Bankruptcy
Court's order annulling the automatic stay that was
triggered by the defendants' filing for chapter 7
bankruptcy protection, and (2) the trial court abused its
discretion in approving the sale of the subject property
because there were ‘‘irregularities with the
motion to approve the foreclosure sale'' that were
‘‘injurious'' to them. We affirm the
judgment of the trial court.
The
following procedural history is relevant to the
defendants' claims on appeal. In March, 2016, the
plaintiff commenced this action against the defendants to
foreclose a mortgage on property owned by the defendants at
11 Top O'HiIl Road in Darien. On May 20, 2016, the
defendants were defaulted for failure to appear in the
action. On May 23, 2016, the court rendered a judgment of
foreclosure by sale. The court found that, as of that date,
the defendants owed the plaintiff $584, 801.05, and the fair
market value of the subject property was $1, 750, 000. The
court appointed a committee to sell the property at a public
auction on June 30, 2016. On June 14, 2016, the defendants
filed a motion to the open judgment and extend the sale date.
The court granted the motion to open the judgment and set the
new sale date as December 3, 2016. On November 22, 2016, the
defendants filed a second motion to open the judgment and
extend the sale date, which was denied. The foreclosure sale
was held on December 3, 2016, with a winning bid of $1, 230,
000. On December 7, 2016, the committee filed a motion for
approval of the sale.
On
December 18, 2016, prior to the hearing on the
committee's motion for approval of the sale, the
defendants filed for chapter 7 bankruptcy protection,
triggering an automatic stay of the foreclosure proceedings
pursuant to 11 U.S.C. § 362 (a) (2012). On March 7,
2017, the committee appeared before the Bankruptcy Court and
informed it that a foreclosure sale of the subject property
had been conducted on December 3, 2016. Because neither the
foreclosure action nor the sale had been disclosed by the
defendants, the Bankruptcy Court issued an order to appear
and show cause to the defendants, their bankruptcy attorney,
and the bankruptcy trustee. On March 23, 2017, an evidentiary
hearing was held on the order to show cause to determine,
inter alia, ‘‘why . . . [a]n order should not
enter terminating, annulling, modifying, and/or conditioning
relief from the automatic stay pursuant to 11 U.S.C. §
362 (d) (1), 11 U.S.C. § 362 (d) (2) and/or 11 U.S.C.
362 (d) (4), to allow the Committee to continue to prosecute
and complete the Foreclosure Action, including to complete
the pre-petition foreclosure sale conducted on December 3,
2016.'' Following the show cause hearing, the
Bankruptcy Court annulled the stay, retroactive to December
18, 2016, the date on which the defendants filed for
bankruptcy protection.
On
March 30, 2017, the committee filed a supplemental report
with the trial court and reclaimed her motion for approval of
the committee sale. On April 17, 2017, the defendants filed
an objection to the motion for approval, arguing that (1) the
appraised value of the subject property was substantially
higher than the successful bid at the foreclosure auction
because an interior appraisal of the property, which the
court had ordered, had not been performed, (2) the committee
had failed to advertise the sale in the newspaper two times,
as the court had ordered, and (3) the committee had failed to
ensure that the sign that she had posted on the property,
pursuant to the court's order, remained there until the
date of the sale. The defendants also challenged the amount
of fees and expenses claimed by the committee.[2]
On May
9, 2017, the trial court ordered that a hearing on the motion
for approval of the committee sale be held on July 6, 2017,
to address the following limited issues: ‘‘(1)
lack of interior inspection; (2) lack of a second sale
advertisement; and (3) the intentional removal of the sale
sign by the defendant[s].'' On July 7, 2017, the
trial court granted the committee's motion for approval
of the sale.[3] This appeal followed. Additional facts
will be set forth as necessary.
I
The
defendants first claim that the trial court's approval of
the committee sale of the subject property was void ab initio
because it exceeded the scope of the Bankruptcy Court's
order annulling the bankruptcy stay. Specifically, the
defendants claim that the Bankruptcy Court's order
annulling the stay was intended only to permit the committee
...