Opinion
CV156056993S
02-17-2016
Army Aviation Center F.C.U. v. Alicia Reynolds
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION FOR DEFAULT FOR FAILURE TO APPEAR (#108)
Robin L. Wilson, J.
FACTS
This issue arises from a debt collection action. On September 8, 2015, the plaintiff, Army Aviation Center, F.C.U., filed a summons and complaint against the defendant, Alicia Reynolds, who has yet to file an appearance in this action. Thereafter, on November 2, 2015, the plaintiff filed a motion for default for failure to appear and judgment with order of payments pursuant to Practice Book § 17-23 et seq. (#102.) In support of the motion, the plaintiff filed the following: an affidavit of debt claiming $16, 697.01 plus court costs in the amount of $412.28, attorneys fees, and postjudgment interest to the date of satisfaction; a copy of the loan advance application and security agreement (financing statement); a copy of a certificate of judgment from the Circuit Court for Houston County, Alabama, signed by the clerk on June 2, 2006; and a copy of an Alabama motion for entry of consent judgment and judgment repayment arrangement signed by the plaintiff's attorney and the defendant. The plaintiff also filed a military affidavit, a request for postjudgment interest, and an affidavit of attorneys fees.
On November 10, 2015, the clerk issued an order rejecting the plaintiff's motion, stating: " Case is beyond the purview of PB 17-23, et seq., in that it is not based on an express or implied promise to pay, but on a foreign judgment or that the original obligation has been novated." (#102.10.) For the reasons discussed infra, the court grants the motion for default for failure to appear (#108).
DISCUSSION
The plaintiff's motion for default is based upon an Alabama consent judgment entered by the clerk of the Circuit Court of Houston County, Alabama. Prior to its entry, the judgment and repayment arrangement was agreed to by both the plaintiff and the defendant, and reflected amounts owing the plaintiff from the defendant's default on a loan to purchase a vehicle. The issue before the court is whether the plaintiff's motion, which concerns a foreign judgment, is proper under Practice Book § 17-24.
In Alabama, " [a] consent order embodies an agreement of the parties and thus in some respects is contractual in nature. But it is an agreement that the parties desire and expect will be reflected in, and be enforceable as, a judicial decree that is subject to the rules generally applicable to other judgments and decrees . . . Although a consent order is a voluntary agreement between the parties, it is also a judicially approved order." (Citations omitted; internal quotation marks omitted.) Gilmore v. Jones, 97 So.3d 764, 767 (Ala.App. 2012).
Translated across jurisdictions, the Alabama consent judgment is closest in form to a Connecticut stipulated judgment. " A stipulated judgment has been defined by our Supreme Court as a contract of the parties acknowledged in open court and ordered to be recorded by a court of competent jurisdiction . . . The essence of the judgment is that the parties to the litigation have voluntarily entered into an agreement setting their dispute at rest and that, upon this agreement, the court has entered judgment conforming to the terms of the agreement." (Internal quotation marks omitted.) Bernet v. Bernet, 56 Conn.App. 661, 665, 745 A.2d 827, cert. denied, 252 Conn. 953, 749 A.2d 1202 (2000). " A judgment rendered in accordance with . . . a stipulation of the parties is to be regarded and construed as a contract." (Internal quotation marks omitted.) Fiddelman v. Redmon, 31 Conn.App. 201, 204, 623 A.2d 1064, cert. denied, 226 Conn. 915, 628 A.2d 986 (1993); see also Connecticut Pharmaceutical Association, Inc. v. Milano, 191 Conn. 555, 558, 468 A.2d 1230 (1983) (" When parties to a lawsuit voluntarily enter into a consent decree that is entered on the court records, certain well established consequences follow. Although a consent judgment is a contract, rather than an adjudication on the merits . . . such a judgment is as conclusive as if it had been rendered upon controverted facts." [Citation omitted; internal quotation marks omitted.]). In turn, " [w]hen a debtor knows precisely how much he is to pay and to whom he is to pay it, his debt is a liquidated one . . . An amount claimed to be due is a liquidated sum when it is susceptible of being made certain in amount by mathematical calculations from factors which are or ought to be in the possession or knowledge of the party to be charged." (Internal quotation marks omitted.) Forster v. Gianopoulos, 105 Conn.App. 702, 707, 939 A.2d 1242 (2008).
A creditor may seek to collect on an express or implied promise to pay a definite sum pursuant to Practice Book § 17-24, which states: " (a) In any action based upon an express or implied promise to pay a definite sum and claiming only liquidated damages, which may include interest, a reasonable attorneys fee and other lawful charges, the procedure set forth in Section 17-20 and in Sections 17-25 through 17-28 shall be followed, if there is a default of appearance. A certificate of closed pleadings shall not be filed in matters which fall within the scope of these rules because such matters shall not proceed on the inventory of pending cases requiring a hearing in damages. (b) When moving for default and judgment pursuant to Sections 17-25 through 17-28, a party shall move for default and judgment on forms prescribed by the office of the chief court administrator." Foreign judgments have been recognized as " liquidated damages" for the purposes of Practice Book § 17-24. See, e.g., Mashantucket Pequot Gaming Enterprise v. Dimasi, Superior Court, judicial district of New London at Norwich, Docket No. CV-99-0117677-S (September 23, 1999, Koletsky, J.) (25 Conn. L. Rptr. 474) (entering judgment pursuant to Practice Book § 17-24 in favor of foreign judgment creditor who sought to enforce tribal court judgment).
The Alabama consent judgment, as a contract reflecting a promise to pay a definite sum claiming only liquidated damages, may be acted upon in accordance with Practice Book § 17-24. Moreover, the consent judgment does not fall afoul of the express limitations of § 17-23. Thus, the plaintiff may seek to collect on amounts owed under the consent judgment pursuant to § 17-24.
Practice Book § 17-23 provides: " Sections 17-24 through 17-27 shall not be applicable to: (1) any action wherein any defendant against whom judgment is sought is in the military or naval service of the United States when judgment is rendered; or (2) any action brought under the small claims rules."
The confusion arising from the initial rejection of the plaintiff's motion for default likely exists because of the alternative courses of action available to foreign judgment creditors seeking to collect a debt. For instance, instead of filing a motion for default, the plaintiff, as a foreign judgment creditor, could have availed itself of the Uniform Enforcement of Foreign Judgments Act (UEFJA), General Statutes § § 52-604 et seq. The UEFJA provides a means for foreign judgment creditors to domesticate a " foreign judgment, " which includes " any judgment, decree or order of a court of the United States or of any other court which is entitled to full faith and credit in this state, except one obtained by default in appearance or by confession of judgment." General Statutes § 52-604 . " Pursuant to General Statutes § 52-605 (b), a foreign judgment is to be 'treated in the same manner as a judgment of a court of this state . . .' Therefore, any proceeding before our courts related to a properly domesticated final foreign judgment is treated as postjudgment in nature." Collard & Roe, P.C. v. Klein, 87 Conn.App. 337, 345, 865 A.2d 500, cert. denied, 274 Conn. 904, 876 A.2d 13 (2005). Thus, a foreign judgment creditor who domesticates a foreign judgment by way of the UEFJA cannot thereafter pursue a new action on the underlying debt.
In general, it is more efficient for a foreign judgment creditor to domesticate an eligible foreign judgment under the UEFJA than it is for that creditor to collect the debt through a motion for default. When a foreign judgment creditor chooses not to domesticate an otherwise eligible foreign judgment, however, the UEFJA does not limit the foreign judgment creditor's means of pursuing an action on the underlying debt. General Statutes § 52-607 provides: " The right of a judgment creditor to proceed by an action on the judgment or a motion for summary judgment in lieu of complaint instead of proceeding under sections 52-604 to 52-609, inclusive, remains unimpaired." " [Section] 52-607 preserved the common-law right of a judgment creditor to bring an independent action on the judgment." (Footnote omitted; internal quotation marks omitted.) Tri-State Tank Corp. v. Higganum Heating, Inc., 45 Conn.App. 798, 802, 699 A.2d 201 (1997). In other words, " [u]nder § 52-607 a foreign judgment creditor who could or did not rely upon § 52-605 can still proceed by an independent action on the foreign judgment, since this remedy remains unimpaired under the statutory scheme. This independent action on the foreign judgment allows the debtor to attack collaterally the foreign judgment by establishing facts that would render the foreign judgment void." Seaboard Surety Co. v. Waterbury, 38 Conn.Supp. 468, 471-72, 451 A.2d 291 (1982).
" Our courts have concluded, despite the language of § 52-605(a) providing that a foreign judgment creditor 'shall file' a foreign judgment in the court in which enforcement is sought, that the provisions of the UEFJA are not exclusive, and a judgment creditor still may seek recognition of a foreign judgment by way of a common-law action on the judgment. See Tri-State Tank Corp. v. Higganum Heating, Inc., [ supra, 45 Conn.App. 802]; Seaboard Surety Co. v. Waterbury, [ supra, 38 Conn.Supp. 470]. Those authorities are not directly on point because they are based on the specific statement in General Statutes § 52-607 that '[t]he right of a judgment creditor to proceed by an action on the judgment . . . remains unimpaired.' They are instructive, however, because they suggest that even in the case of a judgment clearly falling within the statutory definition of 'foreign judgment, ' the provisions of the UEFJA do not establish a mandatory jurisdictional prerequisite to recognition of the judgment by our courts." (Footnote omitted.) Moasser v. Becker, 78 Conn.App. 305, 312, 828 A.2d 116, cert. denied, 266 Conn. 910, 832 A.2d 70 (2003). Thus, based on the aforementioned legal authority, a foreign judgment creditor who has yet to take any action in Connecticut is entitled to use either the UEFJA or the Practice Book in order to collect on the debt.
Returning then, to the issue of what procedure is proper when handling a motion for default: a clerk reviewing a foreign judgment creditor's motion is encouraged to exercise caution and mindfulness in deciding whether to accept or reject the motion. " [T]he UEFJA was intended to provide foreign judgment creditors with a speedy, inexpensive and efficient method for enforcing foreign judgments; it was not intended to limit the availability of existing remedies available to judgment creditors." Moasser v. Becker, supra, 78 Conn.App. 313. Thus, if a foreign judgment otherwise meets the criteria of Practice Book § 17-23 et seq., then a motion for default should not be rejected solely because the foreign judgment is domesticable under the UEFJA.
CONCLUSION
When a plaintiff's motion for default is erroneously rejected, it is remains within the authority of the court to act upon it. See General Electric Capital Corp. v. PDQ Mail Plus, LLC, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-08-6000537-S, (January 14, 2010, Holden, J.) (" Practice Book § 17-27 directs the clerk to bring such a motion to the attention of the judicial authority, and authorizes the court to then act upon it"). Based on the foregoing, the plaintiff's motion for default pursuant to Practice Book § 17-23 et seq. was procedurally proper. Although the plaintiff could have domesticated the Alabama consent judgment under the UEFJA, the plaintiff did not do so. That statute is not an exclusive means of securing judgment, and the motion for default should not have been rejected on those grounds. The plaintiff's motion for default and supporting filings were otherwise in compliance with the Practice Book § 17-23 et seq. Therefore, the plaintiff's motion for default for failure to appear (#108) is granted. Upon the submission of plaintiff's motion for judgment on the default with order of payments, same shall be granted, if all affidavits are in order, in accordance with this court's Memorandum of Decision and judgment shall enter in favor of the plaintiff.
In General Electric Capital Corporation, the clerk mistakenly denied creditor's § 17-24 motion for default on grounds of improper service. Id., 2010 WL 398836 at *1. Thereafter, the creditor filed a motion for summary judgment, which was unopposed by the debtor, who had not yet filed an appearance.
Id. at *2. Nevertheless, the court denied the motion for summary judgment because it was not the proper procedure for securing judgment in that instance. Id. The court explained that, " had the motion been properly brought to the court's attention, it would have granted the motion and entered judgment in plaintiff's favor, along with nominal weekly payments as requested." Id. Indeed, in its decision denying the motion for summary judgment, the court granted the plaintiff's earlier motion for default. Id. at *3. Because the plaintiff's supporting affidavits were, by that point, out of date, the court declined to award nominal weekly payments at that time. Id. Instead, the court ordered the plaintiff to file a new affidavit of debt reflecting the damages it felt entitled to at that time, clearly indicating the amount being requested as weekly payments on the judgment. Id. Upon considering the new evidence, the court would enter an order for weekly payments. Id.