Argued
May 28, 2019
Procedural
History
Action
to foreclose a mortgage on certain of the defendant's
real property, and for other relief, brought to the Superior
Court in the judicial district of Windham, where the
defendant filed a counterclaim; thereafter, the court,
Boland, J., rendered judgment of strict
foreclosure and judgment in part for the defendant on the
counterclaim, and the defendant appealed to this court, which
affirmed the judgment of the trial court; subsequently, the
court, Cole-Chu, J., opened the judgment
and rendered a modified judgment of strict foreclosure;
thereafter, the court, Cole-Chu, J.,
overruled the defendant's objection to the
plaintiff's proposed execution of ejectment, and the
defendant appealed to this court; thereafter, the plaintiff
filed a motion to dismiss the appeal. Appeal dismissed in
part; affirmed.
Sergey
Sekretaev, self-represented, the appellant (defendant).
Christine S. Synodi, for the appellee (plaintiff).
Lavine, Prescott and Eveleigh, Js.
OPINION
LAVINE, J.
The
present appeal has its genesis in a foreclosure action
commenced by the plaintiff, Semi-nole Realty, LLC, in 2010.
This court affirmed the 2014 judgment of strict foreclosure
rendered against the self-represented defendant, Sergey
Sekretaev, [1] in Seminole Realty, LLC v.
Sekretaev, 162 Conn.App. 167, 169, 131 A.3d 753 (2015),
cert. denied, 320 Conn. 922, 132 A.3d 1095 (2016). Since that
time, the defendant has filed at least five federal
bankruptcy petitions and taken one bankruptcy appeal. The
defendant's present appeal is from the trial court's
judgment overruling his objection to the plaintiff's
proposed execution of ejectment and denying his emergency
motion for a stay of ejectment. On appeal, the defendant has
raised numerous claims, [2]but only two of them have not been
raised previously, namely, that the trial court (1) abused
its discretion by overruling his objection to the execution
of ejectment and denying his emergency motion for a stay of
execution of ejectment because title has not yet vested in
the plaintiff and (2) erred in finding that his claims of
financial and emotional damages were not of the
plaintiff's making.[3] We conclude that title vested in the
plaintiff when the defendant failed to redeem his interest in
the subject property following the sixty day extension of the
law day. We, therefore, affirm the judgment of the trial
court as to the propriety of the order of ejectment and as to
the denial of the defendant's emergency motion for a
stay, and dismiss the remainder of the appeal for lack of
subject matter jurisdiction. See footnote 2 of this opinion.
The
following convoluted procedural history underlies the present
appeal. In April, 2009, the defendant purchased a condominium
unit located in Sterling (property) and executed a note in
the amount of $136, 995 that was secured by a mortgage in
favor of the plaintiff. Id., 171. The defendant
failed to make all of the required monthly interest payments
on the debt and to pay the entire principal on April 24,
2010, pursuant to the note. Id., 171-72. The
plaintiff filed a lis pendens on the property in the Sterling
land records in June, 2010, and commenced an action to
foreclose on the property in August, 2010. The defendant
challenged the plaintiff's standing to bring the
foreclosure action numerous times, denied the allegations of
the complaint, and pleaded several special defenses and a
three count counterclaim against the plaintiff. Id.,
180, 193. The case was tried in September and October, 2014.
Id., 170. The court, Boland, J., found that
the defendant was liable to the plaintiff in the amount of
$181, 254.45 and rendered a judgment of strict foreclosure.
Id., 186. The court set the law day as December 1,
2014. Id. The defendant appealed to this court,
which affirmed the judgment of strict foreclosure in
December, 2015; id., 167; and our Supreme Court
denied the defendant's petition for certification to
appeal.[4] Seminole Realty, LLC v.
Sekretaev, 320 Conn. 922, 132 A.3d 1095 (2016).
In
February, 2014, while the foreclosure case was pending, the
defendant filed a petition under chapter 13 of the United
Stated Bankruptcy Code; see 11 U.S.C. § 1301 et seq.
(2012); but voluntarily withdrew the petition on February 20,
2014. In April, 2014, the defendant filed a second chapter 13
petition, which the bankruptcy court dismissed with
prejudice. In addition, the bankruptcy court barred the
defendant from filing a further bankruptcy petition for 180
days. In November, 2014, the defendant filed a voluntary
petition under chapter 7 of the United States Bankruptcy
Code; see 11 U.S.C. § 701 et seq. (2012); and a motion
to avoid a lien on the property, which the bankruptcy court
denied. The chapter 7 bankruptcy case was closed in March,
2015, without discharging the debt underlying the strict
foreclosure judgment.
On May
6, 2016, the plaintiff filed a motion to open the judgment of
strict foreclosure for the purpose of resetting the law day.
Before a hearing could be held, the defendant filed a motion
to open the chapter 7 bankruptcy case. On October 19, 2016,
the bankruptcy court denied the defendant's motion to
open on numerous grounds, including the absence of good
cause, res judicata, and collateral estoppel.
On
January 27, 2017, the plaintiff filed a notice of hearing to
be held on February 14, 2017, to reset the law day, but,
before the hearing could be held, the defendant filed another
chapter 13 petition in bankruptcy. On June 5, 2017, the
bankruptcy court granted the plaintiff's motion for
relief from the bankruptcy stay. The plaintiff was granted in
rem relief[5] as to the then pending chapter 13 petition
and in subsequent petitions the defendant may file within two
years. The bankruptcy court found that the plaintiff had a
secured ‘‘interest in the property'' and
that the defendant's ‘‘petition was part of a
scheme to delay, hinder, or defraud creditors that involved
multiple bankruptcy filings affecting the [p]roperty pursuant
to 11 U.S.C. § 364 (d) (4) (B) . . .
.''[6]
On June
16, 2017, the defendant appealed the bankruptcy court's
in rem order to the federal district court. The district
court denied the defendant's motion for a stay pending
appeal. On May 8, 2018, the district court affirmed the
bankruptcy court's order granting the plaintiff in rem
relief from the automatic bankruptcy stay. See In re
Sekretaev, United States District Court, Docket No.
3:17-CV-00997 (AVC)(D.Conn.May8, 2018). In addition, the
district court stated that the defendant
‘‘engaged in the serial filing of bankruptcy
proceedings by filing four bankruptcy proceedings, during and
after the foreclosure proceeding in state court, to benefit
from the automatic stay afforded by the filing of a
bankruptcy petition.''[7] Moreover, during the period when
he was barred from filing further bankruptcy petitions, the
district court found that the defendant filed numerous
motions in the Superior Court, which further delayed the
proceedings.
Despite
the plaintiff's in rem relief that was then in effect, on
May 24, 2018, the defendant filed yet another chapter 13
petition in bankruptcy. On the basis of the district
court's decision affirming the in rem relief ordered by
the bankruptcy court, the plaintiff sought to have the law
day reset. On June 1, 2018, the parties appeared before the
trial court, Cole-Chu, J., and agreed to
open the 2014 strict foreclosure judgment, to a revised
judgment of strict foreclosure valuing the property at $55,
000 for redemption, and to a law day of August 15,
2018.[8]
Despite
the in rem relief granted to the plaintiff, on June 6, 2018,
the defendant filed a motion to extend the automatic
bankruptcy stay, which the bankruptcy court denied without
prejudice on June 22, 2018. On June 13, 2018, the defendant
filed a chapter 13 repayment plan. The defendant filed a
second motion to extend the automatic stay on June 26, 2018.
On July 10, 2018, the bankruptcy court extended the automatic
stay and suspended its in rem order for sixty days to allow
the defendant an opportunity to confirm a good faith
plan.[9] On July 11, 2018, to protect its interest,
the plaintiff filed a proof of claim and objected to the
feasibility of the defendant's chapter 13
plan.[10] On July 17, 2018, the bankruptcy trustee
filed an objection to the defendant's claim of exemptions
and proposed order. The bankruptcy court held a hearing on
August 30, 2018. On September 18, 2018, the bankruptcy court
reimposed the plaintiff's in rem relief from the
automatic bankruptcy stay and ordered that the plaintiff may
proceed with the in rem relief it was previously
accorded.[11] On November 26, 2018, the defendant
filed a motion in the bankruptcy court titled
‘‘Motion under Federal Rule of Civil Procedure,
Rule 60 (b) (6) and 60 [b] (4), '' seeking relief
from a judgment or order.[12] On November 29, 2018, the
bankruptcy court denied the defendant's motion for relief
of said order.[13]
The
plaintiff filed an application and execution for ejectment,
to which the defendant objected and filed an emergency motion
for a stay of execution of ejectment. The clerk issued an
execution of ejectment on November 29, 2018. The defendant
objected to the execution of ejectment, arguing in part that
he had never agreed to a law day of August 15, 2018. On
November 28, 2018, Judge Cole-Chu overruled the objection and
denied the defendant's motion for a temporary stay of the
execution of ejectment, stating that there was an
insufficient basis for the requested stay. The court stated
that the defendant had agreed to the law day of August 15,
2018, [14] and concluded that title passed to the
plaintiff the next day. Moreover, the court stated that the
defendant's motion for a stay did not represent that a
bankruptcy stay was in effect, and the court
‘‘perceive[d] no basis to expect a new bankruptcy
stay based on a good faith bankruptcy filing.'' The
defendant filed the present appeal on December 4,
2018.[15]
‘‘In
Connecticut, a mortgagee has legal title to the mortgaged
property and the mortgagor has equitable title, also called
the equity of redemption. . . . The equity of redemption
gives the mortgagor the right to redeem the legal title
previously conveyed by performing whatever conditions are
specified in the mortgage, the most important of which is
usually the payment of money. . . . Under our law, an action
for strict foreclosure is brought by a mortgagee who, holding
legal title, seeks not to enforce a forfeiture but rather to
foreclose an equity of redemption unless the mortgagor
satisfies the debt on or before his law day. . . .
Accordingly, [if] a foreclosure decree has become absolute by
the passing of the law days, the outstanding rights of
redemption have been cut off and the title has become
unconditional in the plaintiff, with a consequent and
accompanying right to possession. The qualified title which
the plaintiff had previously held under his mortgage had
become an absolute one.'' (Citation omitted; internal
quotation marks omitted.) Sovereign Bank v. Licata,
178 Conn.App. 82, 97, 172 A.3d 1263 (2017).
The
defendant claims that the court improperly overruled his
objection to the execution of ejection, arguing that title
did not pass to the plaintiff on August 16, 2018. In support
of his claim, the defendant argues that (1) he did not
voluntarily agree to the August 15, 2018 law day and (2)
General Statutes § 49-15 (2) (b) automatically opened
the judgment of strict foreclosure. Although we disagree with
the defendant's claims that he did not agree to the
August 15, 2018 law day and that § 49-15 (2) (b)
automatically opened the judgment of strict foreclosure, we
agree that title to the property did not vest in the
plaintiff on August 16, 2018. The question at the heart of
this appeal is the effect of the bankruptcy court's
suspension of the plaintiff's in rem relief for sixty
days. We conclude that the bankruptcy court's suspension
of the plaintiff's in rem relief extended the law day for
sixty days and, therefore, title vested in the plaintiff on
October 16, 2018, due to the defendant's failure to
redeem. See Provident Bank v. Lewitt, 84 Conn.App.
204, 206-209, 852 A.2d 852, cert. denied, 271 Conn. 924, 859
A.2d 580 (2004); see also 11 U.S.C. § 108 (b). The trial
court, therefore, did not abuse its discretion on November
28, 2018, by overruling the defendant's objection to the
execution of ejectment or by denying his emergency motion for
a stay.[16]
‘‘The
law governing strict foreclosure lies atthe crossroads
between the equitable remedies provided by the judiciary and
the statutory remedies provided by the legislature. . . .
Because foreclosure is peculiarly an equitable action . . .
the court may entertain such questions as are necessary to be
determined in order that complete justice may be done. . . .
In exercising its equitable discretion, however, the court
must comply with mandatory statutory provisions that limit
the remedies available to a foreclosing mortgagee. . . . It
is our adjudicatory responsibility to find the appropriate
accommodation between applicable judicial and statutory
principles. Just as the legislature is presumed to enact
legislation that renders the body of the law coherent and
consistent, rather than contradictory and inconsistent . . .
[so] courts must discharge their responsibility, in case by
case adjudication, to assure that the body of the law-both
common and statutory-remains coherent and
consistent.'' (Internal quotation marks omitted.)
Wells Fargo Bank, N.A. v. Melahn, 148 Conn.App. 1,
7, 85 A.3d 1 (2014).
Given
the convoluted procedural history of this case, the following
timeline will aid in our resolution of the defendant's
claim:
May 8,
2018, the federal district court affirmed the bankruptcy
court's two year in rem relief from stay pursuant to 11
U.S.C. § 364 (d) (4) (B);
May 24,
2018, the defendant filed a chapter 13 petition in
bankruptcy;
June 1,
2018, Judge Cole-Chu opened the 2014 judgment of strict
foreclosure, reset the redemption amount, set a law day of
August 15, 2018, and ...