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Seminole Realty, LLC v. Sekretaev

Court of Appeals of Connecticut

September 10, 2019

SEMINOLE REALTY, LLC
v.
SERGEY SEKRETAEV

          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 ...


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