Wells Fargo Bank, N.A. v. Melahn

• Citation: 148 Conn.App. 1,85 A.3d 1
• Decision Date: 04 February 2014
• Docket Number: No. 34726.,34726.
• Parties: WELLS FARGO BANK, N.A., Trustee v. Michael John MELAHN et al.
• Court: Appellate Court of Connecticut

148 Conn.App. 1

85 A.3d 1

WELLS FARGO BANK, N.A., Trustee

v.Michael John MELAHN et al.

No. 34726.

Appellate Court of Connecticut.

Argued Nov. 12, 2013.

Decided Feb. 4, 2014.

Benjamin Gershberg, with whom, on the brief, was Ridgely Whitmore Brown, for the appellant (named defendant).

GRUENDEL, BEAR and FLYNN, Js.

BEAR, J.

The defendant Michael John Melahn ¹ appeals ² from the trial court's judgment denying his motion to open the strict foreclosure action that was instituted against him by the plaintiff, Wells Fargo Bank, N.A., as trustee.³ We conclude that the court had the jurisdiction and authority to open, and that it should have opened, the judgment of strict foreclosure after the running of the law day in order to effectuate the clear terms of its judgment, with which the plaintiff encumbrancer had failed to comply and then falsely certified that it had complied. Accordingly, given the unusual specific facts and circumstances of this case, including the omissions and falsification by the plaintiff constituting its noncompliance with the strict foreclosure judgment of the court, we reverse the judgment of the trial court denying the defendant's motion to dismiss the strict foreclosure action.

The following facts inform our review of the defendant's claim. On September 9, 2010, the plaintiff filed an action against the defendant to foreclose a mortgage on certain of his real property. The defendant was defaulted for failure to appear on November 2, 2010. The court rendered a judgment of strict foreclosure on November 22, 2010, with a law day of January 11, 2011. As part of its judgment, the court ordered the plaintiff to “send notice to nonappearing individual defendants by regular and certified mail in accordance with the standing orders.” Paragraph D of the uniform foreclosure standing orders, form JD–CV–104, provides: “Within 10 days following the entry of judgment of strict foreclosure the plaintiff must send a letter by certified mail, return receipt requested, and by regular mail, to all non-appearing defendant owners of the equity and a copy of the notice must be sent to the clerk's office. The letter must contain the following information: a.) the letter is being sent by order of the Superior Court; b.) the terms of the judgment of strict foreclosure; c.) non-appearing defendant owner(s) of equity risk the loss of the property if they fail to take steps to protect their interest in the property on or before the defendant owners' law day; d.) non-appearing defendant owner(s) should either file an individual appearance or have counsel file an appearance in order to protect their interest in the equity. The plaintiff must file the return receipt with the Court. The Plaintiff Must Not File A Certificate Of Foreclosure On The Land Records Before Proof Of Mailing Has Been Filed With The Court.” On November 23, 2010, the court sent notice of the order and judgment to the plaintiff. The plaintiff, however, did not send notice to the defendant until January 7, 2011, four days before his law day, and the certified notice was not delivered to him until January 11, 2011, the actual law day. The notice sent to the then nonappearing defendant also did not contain the important information required by the standing orders, which the court had mandated in its judgment. Despite this deficiency, the plaintiff nevertheless certified to the court that notice had been mailed “in compliance with Uniform Foreclosure Standing Order JD–CV–79 ⁴ and JD–CV–104 (d), on January 7, 2011, to all counsel and pro se parties of record to this action....” ⁵ (Emphasis omitted.)

On February 22, 2011, after the defendant secured legal representation, his attorney filed an appearance in the case, and, on March 31, 2011, he filed a motion to dismiss the foreclosure action due to the plaintiff's noncompliance with the court's judgment and the false certification. The plaintiff opposed the motion. On July 14, 2011, the court opened the judgment of strict foreclosure and granted the defendant's motion to dismiss, holding that because the plaintiff had “failed to comply with the notice requirement of the standing orders, the matter is dismissed as to [the defendant]....” On August 24, 2011, the plaintiff filed a motion to reargue, citing the case of Falls Mill of Vernon Condominium Assn., Inc. v. Sudsbury, 128 Conn.App. 314, 320–21, 15 A.3d 1210 (2011).⁶ The defendant objected to the plaintiff's motion and argued that the dismissal was a proper sanction for the plaintiff's failure to adhere to the order contained in the court's judgment and that it filed a false certification. The court granted the plaintiff's motion and concluded that, despite the plaintiff's failure to adhere to the notice requirements contained in the judgment of strict foreclosure, the court was precluded from opening the judgment and dismissing the action because the law day had passed and title had become absolute in the plaintiff. The court therefore vacated its order granting the defendant's motion to dismiss and then denied the defendant's motion. This appeal followed.

On appeal, the defendant claims that the court improperly “grant[ed] reargument and vacat[ed] the dismissal” of the foreclosure action against the defendant because “the plaintiff's initial noncompliance with the trial court's judgment of strict foreclosure [requiring it] to send notice to the nonappearing defendant in accordance with the uniform foreclosure standing orders, JD–CV–104 ... [and the] plaintiff's ... misrepresenting [its] compliance with the standing order, constitute[d] the sort of fraud ... and flagrant noncompliance with the specific order of the trial court as to vitiate the strict foreclosure judgment post law day.” The defendant also argues that the standing orders were adopted by the judges of the Superior Court to ensure that nonappearing defendants receive “constitutional and due process protection....” Given the specific facts and circumstances of this case, including the omissions and falsification by the plaintiff constituting its noncompliance with the strict foreclosure judgment of the court, we conclude that the court had the jurisdiction and authority to open the judgment of strict foreclosure in order to effectuate the clear terms of its judgment, including that the plaintiff comply with the uniform foreclosure standing orders, with which the plaintiff had failed to comply despite certifying otherwise.⁷

“The law governing strict foreclosure lies at the 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.” (Citations omitted; internal quotation marks omitted.) New Milford Savings Bank v. Jajer, 244 Conn. 251, 256–57, 708 A.2d 1378 (1998).

We are mindful that Practice Book § 63–1(b) provides that the “failure to give notice of judgment to a nonappearing party shall not affect the running of the appeal period,” that General Statutes § 49–15 provides that no judgment of strict foreclosure “shall be opened after the title has become absolute in any encumbrancer,” and that “the limitation period of § 49–15 is definitely jurisdictional.” D. Caron & G. Milne, Connecticut Foreclosures (4th Ed. 2004) § 9.01A, p. 197. Nevertheless, as our Supreme Court explained in AvalonBay Communities, Inc. v. Plan & Zoning Commission, 260 Conn. 232, 241, 796 A.2d 1164 (2002): “We reject [a] hypertechnical understanding of the trial court's continuing jurisdiction to effectuate prior judgments. We conclude, instead, that the trial court's continuing jurisdiction is not separate from, but, rather, derives from, its equitable authority to vindicate judgments. Moreover, we hold that such equitable authority ... [derives] from its inherent powers. See Connecticut Pharmaceutical Assn., Inc. v. Milano, 191 Conn. [555, 563, 468 A.2d 1230 (1983) ] (recognizing ‘trial court's power to fashion a remedy appropriate to the vindication of a prior consent judgment’); Papa v. New Haven Federation of Teachers, 186 Conn. 725, 737, 444 A.2d 196 (1982) (recognizing ‘the inherent power of the court to coerce compliance with its orders').” (Emphasis in original; footnote omitted.) See also Rosado v. Bridgeport Roman Catholic Diocesan Corp., 276 Conn. 168, 213, 884 A.2d 981 (2005) (explaining and applying reasoning of AvalonBay Communities, Inc.). In the present case, where the judgment of the court contained the specific notice requirements to which the plaintiff was ordered to adhere, the court necessarily retained the jurisdiction and authority to effectuate its judgment when the plaintiff failed to adhere to the terms of the judgment rendered in its favor and then falsely certified to the court that it had complied.⁸

“Courts of equity may grant relief from the operation of a judgment when to enforce it is against conscience, and where the appellant had no opportunity to make defense, or was prevented from so doing by accident, or the fraud or improper management of the opposite party, and without fault on his own part. Folwell v. Howell, 117 Conn. 565, 169 A. 199 [ (1933) ];Dante v. Dante, 93 Conn. 160, 105 A. 353 [ (1919) ]...