City of Stamford v. Pepaj
| Decision Date | 22 January 2016 |
| Docket Number | FSTCV136019608S |
| Parties | City of Stamford v. Tom Pepaj et al |
| Court | Superior Court of Connecticut |
UNPUBLISHED OPINION
After a three-day evidentiary hearing, the court has before it the defendants' Motion to Open Judgment directed to a May 27 2014 Judgment of Strict Foreclosure of a blight lien in the amount of $33, 880 on residential real property with an appraised fair market value of $512, 000.
The instant motion filed on form JD-CV-107 on April 2, 2015 claimed three forms of relief: (1) a Writ of Audita Querela (2) Injunctive relief; and (3) a Motion to Open Judgment the May 27, 2014 judgment of Strict Foreclosure. The Writ of Audita Querela was granted by Judge Mintz on May 26, 2015 (#136.02). The injunction request was withdrawn by the defendants on September 2, 2015 (#141.00). As agreed by the parties and confirmed by the pleadings and orders in the file, only the Motion to Open Judgment (#136.00) is before this court. The City of Stamford and Pennymac Corporation the holder of the first mortgage, do not agree to open the May 27, 2014 judgment of Strict Foreclosure. Gen. Stat. § 49-15(a)(2).
The court makes the following findings of facts and legal conclusions.
On September 15, 2006 the defendants, Tom Pepaj and Martha Pepaj, placed a $610, 000 mortgage on the subject premises at 30 Dora Street, Stamford, Connecticut 06902 with Stearns Lending, Inc. This mortgage was later assigned to Pennymac Corp. Pennymac Corp. has commenced foreclosure of the $610, 000 first mortgage. The Return of Service in the mortgage foreclosure action is dated July 31, 2013. This Pennymac Corp. mortgage foreclosure action is still pending on the Stamford civil docket FST CV 13-6019380 S and has not gone to judgment. It is assigned for an April 29, 2016 dormancy calendar.
In this blight lien foreclosure action now before this court, the plaintiff, City of Stamford, commenced this lawsuit by a one-count blight lien foreclosure complaint dated August 12, 2013. The Return of Service in this blight lien foreclosure is dated August 13, 2013. The defendants, Tom Pepaj and Martha Pepaj, were defaulted for failure to appear (#102.86, #103.86). Tom Pepaj and Martha Pepaj never filed a self-represented appearance. The first appearance on behalf of the defendants, Tom Pepaj and Martha Pepaj, was filed on March 23, 2015 by their current counsel of record. This blight lien foreclosure action went to judgment on March 17, 2014 (#121.86). The debt was found to be $30, 690 and attorney fees to the City of Stamford were ordered in the amount of $3, 190. A judgment of foreclosure by sale was ordered with a sale date of July 26, 2014. A Committee was appointed to conduct the sale (#121.86). On April 7, 2014 the plaintiff, City of Stamford, sent to the non-appearing defendants, Tom Pepaj and Martha Pepaj, a Notice of Judgment of Foreclosure by Sale (#129.00). The return receipt on this Notice was signed by Rozalina Pepaj, the defendants' English speaking daughter-inlaw, who was and is a resident of 30 Dora Street, Stamford, Connecticut (#129.00).
On May 9, 2014 the defendant, Pennymac Corp., the holder of the foreclosing $610, 000 first mortgage, filed a Motion to Reopen Judgment of Foreclosure by Sale and Convert Form to Strict Foreclosure. The above motion contained a representation that the defendant, Pennymac Corp., " would redeem the debt and take title to the Defendant's assigned law date." (#131.00.) The nonappearing defendants, Tom Pepaj and Martha Pepaj, were not served with a copy of this Motion to Reopen Judgment nor were they mentioned in the Certification portion of the Motion (#131.00). On May 27, 2014 this Motion to Reopen was assigned for a hearing and a Judgment of Strict Foreclosure entered on May 27, 2014 (#131.86). The debt was found to be $30, 690 plus attorney fees to the City of Stamford in the amount of $3, 190. The law day was set for June 17, 2014. A JDNO of this May 27, 2014 judgment was sent by the court clerk without a copy being sent to the non-appearing defendants, Tom Pepaj and Martha Pepaj. No notice of this May 27, 2014 judgment of Strict Foreclosure was sent to the non-appearing defendants, Tom Pepaj and Martha Pepaj, by the court clerk, City of Stamford or Pennymac Corp.
On June 23, 2014 the defendant, Pennymac Corp., paid to the plaintiff, City of Stamford, the blight lien debt. The City of Stamford filed a pleading to that effect, which stated: " This certifies that the Judgment entered by the Court in the above captioned action has been fully paid and satisfied by the defendant, PENNYMAC CORP." (#133.00.) A copy of this Satisfaction of Judgment pleading was certified as having been sent to Tom Pepaj and Martha Pepaj of 30 Dora Street, Stamford, CT 06902. The City of Stamford and Pennymac Corp. both claim that title to 30 Dora Street, Stamford, Connecticut vested in Pennymac Corp. on June 23, 2014. As a result of that fact, Pennymac Corp. has not prosecuted its $610, 000 first mortgage foreclosure action. As of June 23, 2014 the Pepajs had not filed appearances in the blight lien foreclosure action.
On July 29, 2014 a form was prepared and signed on July 29, 2014 by the Clerk of the Superior Court on form JD-CV-47 Rev. 11-05 entitled " Certificate of Judgment Strict Foreclosure" (#135.00). It notes the entry of the May 27, 2014 judgment of Strict Foreclosure, the amount of the debt and the respective law days commencing June 17, 2014 and successive law days thereafter. This form JD-CV-47 was signed and filed after all of the law days had passed. The right to redeem before the law days had passed was stated in the preprinted language along with this admonition: " if said owner of the equity of redemption shall fail to redeem on or before its law day." On March 23, 2015 counsel of record filed his appearance for both Pepaj defendants in this blight lien foreclosure action. On April 2, 2015 the defendants' counsel of record filed this Motion to Open Judgment (#136.00).
The defendants advance three arguments in favor of opening the May 27, 2014 judgment of Strict Foreclosure: (1) a prior attorney was hired by the Pepajs and paid a retainer but did not file an appearance for the two individual defendants in this blight lien foreclosure action nor offer any defenses on their behalf; (2) the blight situation has been cured and the two Pepaj defendants need more time to raise the funds sufficient to pay off and discharge the blight lien, and (3) the May 27, 2014 judgment of Strict Foreclosure failed to comply with the post-judgment notice requirements as to the two nonappearing defendants, Tom Pepaj and Martha Pepaj. The court will discuss all three reasons.
(1) The non-activity of the prior attorney should be sufficient grounds by itself to open the May 27, 2014 judgment of Strict Foreclosure.
" It is well settled that negligence of a party or his counsel is insufficient to obtain relief under Section 52-212." State v. Ritz Realty Corporation, 63 Conn.App. 544, 548, 776 A.2d 1195 (2001). The retained attorney was not called as a witness by any party. The court finds that the continued negligence of the defendants' retained attorney as well as the continued negligence of the two individual defendants in failing to defend or even acknowledge the existence of the potential loss of their family home is not sufficient for this court to open the judgment. JP Morgan Chase Bank, N.A. v. Mendez, 320 Conn. 1, 8, 127 A.3d 994 (2015).
The court is confronted with a judgment of Strict Foreclosure in which the law days have passed and title has vested (#131.86). Merry-Go-Round Enterprises, Inc. v. Molnar, 10 Conn.App. 160, 161-62, 521 A.2d 1065 (1987).
" General Statutes § 49-15 provides that: " Any judgment foreclosing the title to real estate by strict foreclosure may, at the discretion of the court rendering the same, upon the written motion of any person having an interest therein, and for cause shown, be opened and modified, notwithstanding the limitation imposed by section 52-212a, upon such terms as to costs as the court deems reasonable; but no such judgment shall be opened after the title has become absolute in any encumbrancer." (Emphasis added.) Both the Supreme Court and this court have ruled that, under this statute, a judgment of foreclosure cannot be opened after title has become absolute in any encumbrancer. Meriden Savings Bank v. Sujdak, 124 Conn. 604, 610-11, 1 A.2d 134 (1938); City Savings Bank of Bridgeport v. Miko, 1 Conn.App. 30, 34 n.2, 467 A.2d 929 (1983). In this case, absolute title had vested in the plaintiff before the defendants filed their motion to open the judgment of strict foreclosure. Under General Statutes § 49-15, therefore, the trial court was precluded from opening the judgment and properly denied the motion. Moreover, because § 49-15 prohibits the only remedy that would otherwise be available to the defendants, there is no practical relief which this court can grant to the defendants. Accordingly, this portion of the appeal is dismissed as moot. Connecticut Savings Bank v. Howes, 9 Conn.App. 446, 448, 519 A.2d 1216 (1987).
Merry-Go-Round Enterprises, Inc. v. Molnar, supra, 10 Conn.App. 162.
Even if Gen. Stat. § § 52-212 and 52-212a were claimed by the defendants to apply, the Motion to Open was...
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