Opinion
No. 05 4004898S.
November 29, 2006.
MEMORANDUM OF DECISION
MOTION TO OPEN JUDGMENT #111
I. BACKGROUND
The defendant, Deyse Huertas (Huertas) seeks to open a judgment of strict foreclosure entered by the court (Wiese, J.) on March 20, 2006, upon a default for failure to appear.
Huertas claims that the service of process in this case was improper, since it was left at 65 Clay Street in New Haven on November 17, 2005, at which time she was incarcerated at the state prison in Niantic, Connecticut. She also claims that she was unaware of the judgment of foreclosure until her release from custody.
The motion to open was heard by the court at short calendar on November 13, 2006.
The motion to open is denied.
II. FACTS
Huertas resided with her family at 65 Clay Street in New Haven (Clay Street) until she was incarcerated in April 2005. Her family continued to reside at this address throughout her imprisonment, and, upon her release from prison on August 23, 2006, she returned to and currently resides with her family at the 65 Clay Street address.
On May 24, 2005, while she was in state prison in Niantic, Connecticut, Huertas entered into a mortgage note and deed in the amount of $153,000.00. Upon a default on the note, the plaintiff, Argent Mortgage Company, LLC (Argent), filed this foreclosure action on November 30, 2005. Again while she was still in state prison in Niantic, Huertas signed a forbearance agreement on December 23, 2005. Upon a default of the forbearance agreement, Argent proceeded with the foreclosure action and a judgment of strict foreclosure was entered upon a default for failure to appear on March 20, 2006.
Several months after the judgment of strict foreclosure entered, AMC Mortgage Services sent a Notice of Intention to Foreclose to Huertas, dated June 19, 2006, stating that "[i]n order to cure this default and attempt to bring an end to these foreclosure proceedings, you must remit by 07/24/06, the total amount due on your account which is $14,423.14." Huertas did not tender this or any other sum in response to this notice.
AMC Mortgage Service was identified in the forbearance agreement as the lender, along with Argent Mortgage Company.
II. DISCUSSION
"Strict foreclosure is the normal method of foreclosure . . . in Connecticut . . . When a strict foreclosure rather than a sale is ordered, it entails a foreclosure judgment in favor of the mortgagee that results from a proceeding against the debtor and leaves the mortgagor with a right to redeem within a specified time frame, ending with the law day." (Citations omitted; internal quotation marks omitted.) Provident Bank v. Lewitt, 84 Conn.App. 204, 208, 852 A.2d 852, cert. denied. 271 Conn. 924, 859 A.2d 580 (2004). "[N]otice of the court's judgment of strict foreclosure . . . [begins] the twenty day appeal period as well as a twenty day automatic stay. See Practice Book § § 63-1 and 61-11." Chase Manhattan Mortgage Corp. v. Burton, 81 Conn.App. 662, 664, 841 A.2d 248, cert denied, 268 Conn. 919, 847 A.2d 313 (2004). Absent a procedural error or appeal by the defendant, title vests "properly and absolutely in the plaintiff following the law day . . . because the automatic stay had expired." Id., 668.
A. Abode Service
In the present case, a judgment of strict foreclosure was entered on March 20, 2006. Following the twenty-day period without an appeal, title vested with the plaintiff on April 11, 2006. However, Huertas claims that there exists a procedural error affecting personal jurisdiction in this case. She claims that her abode at the time of service was at the state prison in Niantic, and not at 65 Clay Street, New Haven Connecticut, where the "abode service" occurred, as evidenced by the State Marshal's return of service.
"It is black letter law that [t]he Superior Court . . . may exercise jurisdiction over a person only if that person has been properly served with process . . . When, however, the defendant is a resident of Connecticut who claims that no valid abode service has been made upon her that would give the court jurisdiction over her person, the defendant bears the burden of disproving personal jurisdiction. The general rule putting the burden of proof on the defendant as to jurisdictional issues raised is based on the presumption of the truth of the matters stated in the officer's return. When jurisdiction is based on personal or abode service, the matters stated in the return, if true, confer jurisdiction unless sufficient evidence is introduced to prove otherwise." (Internal quotation marks omitted.) Tax Collector v. Stettinger, 79 Conn.App. 823, 825, 832 A.2d 75 (2003).
Few cases have addressed the issue of proper abode service when a person is incarcerated. "A prisoner is presumed to have his usual place of abode where his family dwelt at the time he was imprisoned, since he never abandoned his former home . . . Capitol Light Supply Co. v. Gunning Electric Co., 24 Conn.Sup. 324, 326-27, 190 A.2d 495 (1963). On the other hand, where the defendant has moved, and there is no evidence that he has done so temporarily or intends to return, his former residence is no longer his usual place of abode. Wachovia Bank, N.A. v. Pond Place Development, II, LLC, Superior Court, judicial district of Waterbury, Docket No. CV 04 4001070 (May 3, 2006, Brunetti, J.) (41 Conn. L. Rptr. 320)." Jimenez v. DeRosa, Superior Court, judicial district of New Haven, Docket No. CV 03 0474948 (August 23, 2006, Skolick, J.T.R.) ( 42 Conn. L. Rptr. 27).
A number of cases, however, have set forth factors that indicate where and when abode service is proper. "[The] Supreme Court [has] stated that [o]ne may have two or more places of residence within a State . . . and each may be a usual place of abode . . . Service of process will be valid if made in either of the usual places of abode." (Emphasis added; internal quotation marks omitted). Tax Collector v. Stettinger, supra, 79 Conn.App. 827. "[W]hether a particular place is the usual place of abode of a defendant is a question of fact. Although the sheriff's return is prima facie evidence of the facts stated therein, it may be contradicted and facts may be introduced to show otherwise." (Internal quotation marks omitted.) Id., 825. "From Foye, Capitol Light and Collins, it is clear that abode means residence, not domicile; that one can have more than one residence; that sufficient abode service can be made at a place where one formerly lived, if one's residence at that place has not been abandoned; and, that residence is an issue of fact." Nationwide Ins. Co. v. Comito, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 99 0270188 (July 25, 2000, Levine, J.) ( 27 Conn. L. Rptr. 606, 607).
The facts of the present case lead to the conclusion that the defendant had two places of residence while she was incarcerated, the prison where she was being held and the Clay Street address. It is clear from the facts that the defendant did not abandon the Clay Street address and has, in fact, returned there following her release from incarceration. Although the defendant signed both the initial mortgage document for the Clay Street property and the subsequent forbearance agreement while in prison, her children continued to live at the Clay Street address, along with the father of at least one of her children, with whom she had contact while she was incarcerated.
An ancient Connecticut Supreme Court case is relevant to these proceedings. In Grant v. Dalliber, 11 Conn. 234 (Conn. 1836), the court held that service of process was proper at a prisoner's home while he was incarcerated. Under the facts of Dalliber, which are similar to the present case, "the defendant was sentenced to the Connecticut state prison, for the term of four years; and he remained confined therein from August 1828, to August 1832. Before his commitment, he resided at his dwelling-house in Torrington. He left his wife and family in such dwelling-house, where they continued to reside, with a short interruption, until August 1832; and to this place he returned, as to his dwelling, immediately after the expiration of his imprisonment."
The facts of this case differ from Dalliber, primarily because Argent was fully aware of Huertas' location in Niantic at the time of these proceedings, having entered into the mortgage note and deed, as well as the forbearance agreement, during her period of incarceration. Further, nothing precluded the service of process on Huertas while she was in prison.
See Dunn's Appeal, 35 Conn. 82, 84-85 (Conn. 1868), wherein the court stated that the prisoner "had made an assignment of his property under the insolvent law, and the trustee in insolvency had sold his former residence in East Windsor, and the purchaser had taken possession of it, so that he had, at the time service was made, no other place of residence than the place where he was confined at the time. We think, therefore, that the service was, under the circumstances, properly made by leaving a copy with him at the jail."
Although Dalliber has been criticized in another jurisdiction and distinguished here in Connecticut, it has been approvingly cited on a regular basis by Connecticut courts, although only occasionally regarding abode service for prisoners. The case is primarily cited for the underlying purposes of abode service, "[t]he chief purpose of [which] is to ensure actual notice to the defendant that the action is pending." Clover v. Urban, 108 Conn. 13, 16, 142 A. 389 (1928). It is also regularly cited for the proposition that "although the sheriffs return is prima facie evidence of the facts stated therein, it may be contradicted and facts may be introduced to show otherwise." Collins v. Scholz, 34 Conn.Sup. 501, 502, 373 A.2d 200 (1976).
See Shurman v. Atl. Mortg. Inv. Corp., 795 So.2d 952, 956 (Fla. 2001).
See footnote 1. Also see Reading v. Westport, 19 Conn. 561, 565 (Conn. 1849) regarding the definition of the location of a "settlement" for purposes of the pauper's statute.
See Nieves v. Connolly, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 89 0100458 (November 23, 1993, Lewis, J.), wherein the court stated that "[p]risoners in Connecticut may be served by leaving process at their residence or usual place of abode. Grant v. Dalliber, 11 Conn. 234, 238 (1836), holds that one's place of residence is not changed or abandoned, by a constrained removal, as by imprisonment." This is the rule in other jurisdictions as well.
In this case, although Huertas' actual location at the time of service was the state prison in Niantic, service of process there was not the only reasonable method of giving her actual notice of the pending action. Although Huertas was more likely to be located by Argent in Niantic for the purpose of service of process, her place of imprisonment changed on several occasions. At approximately the same time that the judgment of strict foreclosure was entered in this case, Huertas was moved from the state prison in Niantic to the federal prison in Danbury and then back to Niantic. Although it appears that Huertas was in Niantic between the time she signed the mortgage until the foreclosure, these facts nonetheless show that there is no assurance that a prisoner's "residence" will remain the same throughout their period of incarceration.
Judgment entered on March 20, 2006. Huertas testified that she was transferred from Niantic to Danbury in March 2006 but she was uncertain about the specific date of the transfer. In an affidavit provided to the court, she stated that "I believe that on April 5, 2006 I was transferred to federal custody . . ." Affidavit of Deyse Huertas, September 27, 2006, Exhibit D of the Memorandum of Law in Support of Defendant's Motion to Open Judgment.
In light of Huertas' continuing interest in her title to the Clay Street property, and having never abandoned it as a continuing residence for her and members of her family, it was not entirely unreasonable for Argent to perform abode service at that location. Although it may have been more appropriate to serve Huertas at her residence in Niantic, it is not legally insufficient in this case under the holding of Dalliber, which remains the law of Connecticut upon strikingly similar facts to the case before the court, and upon which the plaintiff rightfully relies.
Although Huertas claims that she was unaware of the foreclosure proceedings, she had ample reason to be aware of the impending foreclosure action. Huertas testified that she was aware of a payment made to Argent that was returned, which resulted in her entering into the forbearance agreement. Further, the forbearance agreement she signed specifically indicates that there had been a default which, if cured by Huertas, would result in Argent forbearing "its right to foreclose on the property."
B. Waiver or Admission
Several months after the judgment of strict foreclosure entered on March 20, 2005, AMC Mortgage Service sent a document entitled "NOTICE OF INTENTION TO FORECLOSE," dated June 19, 2006, stating that "[i]n order to cure this default and attempt to bring an end to these foreclosure proceedings, you must remit by 07/24/06, the total amount due on your account which is $14,423.14." Huertas did not tender this or any other sum in response to this notice.
Huertas claims in her brief that this notice represents an admission that title had not passed to Argent. At the hearing on this motion to open, Huertas characterized this notice as a "waiver" by Argent. In response, Argent claims that its mortgage servicing company sent this notice in error.
Title passes in an action for strict foreclosure upon the expiration of the appeal period following the judgment. Farmers Mechanics Bank v. Kneller, 40 Conn.App. 670 A.2d 324 (1996). In this case, therefore, the title passed to Argent as a matter of law on April 11, 2006. No "admission" or "waiver" on the part of Argent could reverse the strict foreclosure entered by the court and unilaterally return title to Huertas. Id. If, on the other hand, the offer to pay the amount in default had been accepted, it may have formed the basis for an agreement by Argent to return title to Huertas. Instead, the notice in this case was simply an offer to "end these foreclosure proceedings which, in fact, had already concluded in strict foreclosure.
In Farmers Mechanics Bank v. Kneller, 40 Conn.App. 115, 670 A.2d 324 (1996) the defendant in a foreclosure action claimed that the parties had waived the vesting of title pursuant to General Statutes § 49-15. The court disagreed. "When a motion to open a judgment of strict foreclosure has not been filed within the time limited to appeal, no stay will come into effect. In this situation, or where the automatic stay pursuant to Practice Book § 4046 has been terminated, a law day may pass and if the defendant fails to redeem, the equity of redemption is extinguished and title to the property vests absolutely in the plaintiff, whether or not a hearing on a motion to open is pending. In this case, the defendant did not file his motion to open until after the expiration of the time to appeal from the initial foreclosure judgment. Consequently, the defendant's motion to open, filed subsequent to the appeal period, did not produce a stay; nor did a stay result from the defendant's filing of a motion to enjoin the effect of the law day. Because the trial court did not hear either of these motions prior to the October 28, 1992 law day, title to the property vested absolutely in the plaintiff on October 29, 1992, pursuant to General Statutes § 49-15." Id. at 124.
IV. CONCLUSION
The motion to open the judgment of strict foreclosure is denied.