Opinion
No. CV07 500 63 94 S
March 25, 2010
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO OPEN JUDGMENT
Defendant, Julianie Dufane, filed a motion to open judgment seeking to open the judgment of strict foreclosure entered against her on May 4, 2009, on the ground that she did not receive notice of the judgment as required by Connecticut Practice Book § 17-22. On October 28, 2009, the court conducted a hearing on the defendant's motion. At the hearing, the plaintiff, Property Asset Management, Inc., introduced "A Notice of New Law Date," which the plaintiff argues constitutes notice of judgment required by Practice Book § 17-22. The defendant argues that the plaintiff's Notice of New Law Date does not comply with § 17-22. The defendant also argues that the plaintiff knowingly served the notice at the wrong address. Thus, the defendant argues that equity dictates that the defendant's Motion to Open Judgment be granted.
I. BACKGROUND
On January 22, 2007, the plaintiff, Property Asset Management, Inc., commenced the present action against the defendant, Julianie Dufane, seeking to foreclose a mortgage. On February 20, 2007, the defendant was defaulted for failure to appear and a judgment of foreclosure by sale was ordered with the sale date set for April 28, 2007. On April 27, 2007, defendant filed for bankruptcy, which effectively cancelled the foreclosure sale for the next day. That bankruptcy was dismissed on October 15, 2007. On November 19, 2007, the court opened the judgment of foreclosure by sale and re-entered a judgment of foreclosure, with the new foreclosure sale scheduled for March 22, 2008. On March 21, 2008, the defendant again filed for bankruptcy, again forcing the scheduled foreclosure sale to be cancelled. On August 25, 2008, the second bankruptcy case was dismissed and the plaintiff again moved for judgment on September 9, 2008. On September 29, 2008, the court entered another judgment of foreclosure, this time a judgment of strict foreclosure with a law day set for January 6, 2009. On October 17, 2008, the defendant filed a third bankruptcy case which cancelled the law day. This bankruptcy action was dismissed on April 1, 2009. On May 4, 2009, the court again entered a judgment of strict foreclosure and set defendant's law day for August 4, 2009. The August 4, 2009 law day passed without the defendant filing for bankruptcy.
On September 1, 2009, the defendant appeared through counsel and filed the present Motion to Open. On October 28, 2009, the court heard argument and testimony on the Motion to Open and the plaintiff's objection thereto. At the conclusion of the hearing, the court entered a scheduling order for the parties, pursuant to which the parties were to file supplemental briefs on the issues of whether: (1) there was a duty on the plaintiff to send notice to the defendant at an address other than the abode address on file with the court; and (2) whether there was a necessity for the plaintiff to provide more information under the notice provisions of Practice Book § 17-22 than the plaintiff provided to defendant.
II. DISCUSSION
The defendant's arguments in support of its motion to open can be reduced to the plaintiff's notice of new law date being delivered to the wrong address and that the notice was insufficient to comply with the Practice Book provisions.
NOTICE OF JUDGMENT
The defendant argues that the plaintiff failed to give proper notice of judgment to the defendant. This argument is based upon the allegation that the notice of judgment sent to the defendant did not comply with Practice Book provisions.
Initially, the defendant was defaulted for failure to appear and a judgment of foreclosure by sale was ordered on February 20, 2007. The fourth and final judgment of foreclosure, the second judgment of strict foreclosure, was entered on May 4, 2009. On May 14, 2009, the plaintiff sent a "Notice of New Law Day" which read "Please be advised that on May 4, 2009 a new law date has been entered in connection with the above referenced matter. The new law day is set for August 4, 2009." (Emphasis in original.) This notice, which is in pleading format, was sent by Lisa A. Whittemore, a foreclosure paralegal with 12 1/2 years experience. The notice was sent to the defendant at her 153 Sunshine Circle, Bridgeport, CT address. The defendant claims that the plaintiff failed to comply with Practice Book § 17-22 which provides in pertinent part: "A notice of every . . . judgment after default for failure to enter an appearance, which notice includes the terms of the judgment, shall be mailed within 10 days of the entry of judgment by counsel of the prevailing party to the party against whom it is directed and a copy of such notice shall be sent to the clerk's office . . ."
When the court entered judgment on September 29, 2008, the court modified the judgment from a judgment of foreclosure by sale to a judgment of strict foreclosure. When the defendant filed her third bankruptcy to stay this foreclosure, only the law date itself was opened pursuant to General Statutes § 49-15. General Statutes § 49-15(b) provides in pertinent part: "Upon the filing of a bankruptcy petition by a mortgagor under Title 11 of the United States Code, any judgment against the mortgagor foreclosing the title to real estate by strict foreclosure shall be opened automatically without action by any party or the court, provided, the provisions of such judgment, other than the establishment of law days, shall not be set aside under this subsection; . . ." Thus, since only the law day was set aside by the defendant's bankruptcy filing, only the law day needed to be reset by the court subsequent to the dismissal of the bankruptcy. Other terms of the original judgment were not integral to the entry of the judgment. Since the notice of judgment sent to the defendant included the new law day, this court will hold that the notice was sufficient to comply with Practice Book § 17-22. The notice of judgment sent by the plaintiff served the intended and required purpose, namely, to put the non-appearing defendant on notice that a judgment had again been rendered against her.
ADDRESS AT WHICH NOTICE OF JUDGMENT WAS DELIVERED
The defendant contends that the notice of judgment referred to above was delivered to an incorrect address, that is, 153 Sunshine Circle, Bridgeport, CT, when the defendant had changed her address to 231 Linwood Avenue, Bridgeport, CT. The defendant argues that she put the plaintiff on notice that her address had changed by changing her address with the mortgage servicing agency, America's Servicing Company, Des Moines, Iowa, and by using the 231 Linwood Avenue address on some documents in bankruptcy court.
The defendant's contentions are belied by the history of this foreclosure action. All pleadings and motions were sent to the same foreclosure address, 153 Sunshine Circle, defendant's last known address. The timing of the defendant's three filings of petitions in bankruptcy (twice on the eve of sale date) strongly suggests that she had ongoing knowledge of the precise stage of the proceedings in this matter and had received the prior notices and mailings at the foreclosure address. In terms of where notice should be sent, Connecticut law provides that a party may have more than one residence and more than one abode:
The most prominent purpose of the law in prescribing the modes of civil process, was, to insure actual notice to defendants. The place where one would be most likely to have knowledge of a service by copy would be at his usual place of abode. What then does `usual place of abode' signify as used in this statute? One may have two or more places of residence within a state, or in two or more states, and each may be a `ususal place of abode.' Service of process will be valid if made in either of the usual places of abode. It will reach him in one as well as the other. Dorus v. Lyon, [ 92 Conn. 55, 57 (1917)] is decisive that one may have a home and residence outside this state and yet have a usual place of abode in this state for service of process and sufficient to permit the statute of limitations to run. `Residence' does not necessarily import domicile. Nor does usual place of abode import domicile. There is no relation between them, though they may be concurrent. A person may have two or more places of abode, while he can have only one domicile. Where one has two usual places of abode, one within and one without the state, either of these abodes will be a usual place of abode for the service of process under our statute.
(Internal citations omitted; Internal quotations marks omitted.) Clegg v. Bishop, 105 Conn. 564, 569-70 (1927).
Thus, even if the plaintiff's mortgage servicer, America's Servicing Company, was notified of a new mailing or residence address, such notice did not mean that the foreclosure address was no longer defendant's usual place of abode.
In Knutson Mortgage Corporation v. Bernier, 67 Conn.App. 768 (2002), the defendant had failed to appear and the court entered a judgment of strict foreclosure. Thereafter the defendant filed a motion to open with an attached affidavit in support. In her affidavit the defendant attested that between August 1, 1999 and May 23, 2000 she lived at a different address from the foreclosure address. The defendant further attested that she had not learned about the foreclosure action until after the case had ended. While upholding the trial court's denial of the defendant's motion to open, the Appellate Court noted that "[a]lthough the defendant filed an affidavit in support of her motion to open the judgment, she failed to offer evidence to contradict the evidence that 99 Beacon Street was one of two residences that could have served as her usual place of abode . . . [T]he plaintiff correctly assets that either address could be construed as the defendant's usual abode for the purpose of service." Knutson Mortgage Corp. v. Bernier, supra, 67 Conn.App. 772.
In the present foreclosure matter the defendant has failed to produce sufficient evidence to disprove that the foreclosed properly, 153 Sunshine Circle, Bridgeport, is one of the residences that serves as the defendant's usual place of abode. This Court finds that the notice of judgment properly was addressed to the defendant at the only address on file for the non-appearing defendant, the address of the foreclosed property.
The defendant presented no evidence or testimony at the hearing on her motion to open.
Based on the foregoing, the defendant's motion to open is denied.