Opinion
CV146021383S
06-02-2017
HSBC Bank USA, National Association as Trustee for v. Michael Peter Vitti aka Michael P. Vitti
UNPUBLISHED OPINION
MEMORANDUM OF DECISION DEFENDANT'S MOTION TO OPEN AND VACATE [#148] PLAINTIFF'S MOTION TO OPEN AND EXTEND LAW DAY [#150]
Irene P. Jacobs, J.
Defendant's Motion to Open and Vacate Judgment [#148]
Judgment of strict foreclosure was granted on September 15, 2014 [#141.55]. The defendant's motion to reargue/reconsider [#143] was granted on October 20, 2014, in order to allow the defendant to file a motion to dismiss for lack of subject matter jurisdiction. After a hearing on the same, the motion to dismiss was denied on November 6, 2014. On December 8, 2014, the day before the defendant's law day, the defendant filed the current motion to open and vacate the judgment of strict foreclosure and, on December 9, 2014, the defendant filed bankruptcy. The bankruptcy was dismissed by the U.S. Bankruptcy Court on January 29, 2015. On October 28, 2016, the plaintiff filed the current motion to open judgment [#150] to find new facts and set new law days. The two motions were heard by the court at short calendar on February 6, 2017.
" A motion to open a judgment of strict foreclosure is addressed to the discretion of the trial court .?.?. and unless that discretion was abused or was based upon some error in law, the denial of the motion must stand." (Citation omitted; internal quotation marks omitted.) New Haven Savings Bank v. Gurland, 3 Conn.App. 508, 508-09, 489 A.2d 1070 (1985). " Because opening a judgment is a matter of discretion, the trial court [is] not required to open the judgment to consider a claim not previously raised. The exercise of equitable authority is vested in the discretion of the trial court and is subject only to limited review on appeal." (Footnote omitted; internal quotation marks omitted.) Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 94-95, 952 A.2d 1 (2008).
General Statutes § 49-15 provides as follows: " The court may open a judgment of strict foreclosure for good cause shown upon motion by any person having an interest in the real estate, pursuant to terms the court deems reasonable. 'The design of § 49-15 is to authorize a court, before a redemption pursuant to a strict foreclosure has occurred, to modify the terms of the judgment in order to achieve an outcome fairer to the parties than provided by the original judgment in light of conditions as they appear when the motion to open is decided.' Farmers & Mechanics Savings Bank v. Sullivan, 216 Conn. 341, 352, 579 A.2d 1054 (1990)." " Unlike General Statutes § 52-212, which provides for opening default judgments generally and requires a defaulted defendant to show that he had a good defense that he was prevented from making by 'mistake, accident or other reasonable cause, ' § 49-15 prescribes only four conditions for opening a judgment of strict foreclosure: (1) that the motion be in writing; (2) that the movant be a person having an interest in the property; (3) that the motion be acted upon before an encumbrancer has acquired title; and (4) that 'cause, ' obviously good cause, be shown for opening the judgment." Id., 352-53.
Our Appellate Court recently defined the doctrine of law of the case as follows: " The law of the case doctrine expresses the practice of judges generally to refuse to reopen what [already] has been decided .?.?. New pleadings intended to raise again a question of law which has been already presented on the record and determined adversely to the pleader are not to be favored .?.?. [When] a matter has previously been ruled [on] interlocutorily, the court .?.?. may treat that [prior] decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance .?.?. A judge should hesitate to change his own rulings in a case and should be even more reluctant to overrule those of another judge .?.?. Nevertheless, if .?.?. [a judge] becomes convinced that the view of the law previously applied by his coordinate predecessor was clearly erroneous and would work a manifest injustice if followed, he may apply his own judgment." (Citation omitted; internal quotation marks omitted.) Total Recycling Services of Connecticut, Inc. v. Connecticut Oil Recycling Services, LLC, 308 Conn. 312, 322, 63 A.3d 896 (2013).
In the current case, the majority of the arguments (if not all of them) raised by the defendant are the same in the motion to reargue, motion to dismiss, and motion to open and vacate, the " good cause" given in the motion to open is the same as that given in the motion to reargue--the defendant's attorney had to attend another short calendar matter on the morning of the strict foreclosure hearing and it ran late, he then stopped for food, then he stopped to pick up his son from school, he then experienced traffic on the highway, and ultimately arrived for the foreclosure hearing and learned that the court had entered judgment of strict foreclosure. The defendant's attorney never asserts that he called the court or opposing counsel to let them know that he would be late and/or requested that the time of the hearing be changed to accommodate his schedule.
Moreover, the reasons the defendant provides to open the judgment now, primarily lack of due process/standing, are the same reasons previously articulated in his motion to dismiss. Those issues of due process/standing were briefed by both parties, argued before the court, Tierney, J., and the defendant's motion to dismiss was denied. The defendant fails to raise new issues regarding due process/standing in the motion to open judgment; rather, he simply disagrees with the court's prior ruling on his motion to dismiss and seeks to have the issues raised in the motion to dismiss re-litigated. For the foregoing reasons, the defendant's motion to open and vacate is denied.
Plaintiff's Motion to Open Judgment, to Make New Findings, to Re-enter Judgment after Termination of Bankruptcy stay and to Award Additional Attorneys Fees and Costs and to Extend Law Day [#150]
Subsection (a)(1) of Gen. Statutes § 49-15 states: 'Any judgment foreclosing the title to real estate by strict foreclosure may, at the discretion of the court rendering the judgment, upon the written motion of any person having an interest in the judgment and for cause shown, be opened and modified .?.?. '?" (Emphasis added.) U.S. Bank, N.A. Trustee. v. Morawska, 165 Conn.App. 421, 426-27, 139 A.3d 747 (2016). As described above, a judgment of strict foreclosure was obtained by the plaintiff, the defendant filed a bankruptcy petition and the bankruptcy case was dismissed. Accordingly, the court grants the plaintiff's motion and orders:
1. The September 15, 2014 judgment of foreclosure is opened.
2. Judgment of foreclosure is ordered re-entered on the same terms as the previous judgment, except as modified by the court as follows:
a. new finding of debt: $497, 639.96
b. new finding of fair market value: $540, 000.00
c. new finding of equity: $42, 360.00
d. additional attorneys fees: $550.00
e. additional appraisal fee: $600.00
3. Law Day is reset for Tuesday, June 27, 2017.