Opinion
KNLCV116010223S
12-28-2016
Wells Fargo Bank, N.A. v. Sheri Speer
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE NOTICE OF ERROR IN TITLE #166, PLAINTIFF'S MOTION TO STRIKE #167
Hon. John J. Nazzaro, J.
This began as a foreclosure action. The court is faced with the following issue: whether title to property properly transferred from the defendant to the plaintiff on the scheduled law day. Specifically, the court need determine whether an automatic appellate stay under Practice Book § 61-11 was in effect when the scheduled law day had run, thus requiring the court to set a new law day after the defendant's appeal was dismissed by the Appellate Court. For reasons set forth below, the plaintiff's motion to strike is granted and the defendant's notice of error in title transfer is therefore stricken.
FACTS AND PROCEDURAL HISTORY
On August 17, 2011, the plaintiff, Wells Fargo Bank, N.A., filed a complaint seeking foreclosure against the defendant, Sheri Speer, for an outstanding mortgage on property located at 2 Orchard Street, Norwich, Connecticut 06360. (Property.) The court granted summary judgment for the plaintiff and issued an order of strict foreclosure on April 14, 2014. The defendant filed an appeal on May 5, 2014, but the appeal was dismissed on December 30, 2014, because the defendant failed to provide an acknowledged transcript form from the trial court proceedings. On May 23, 2014, the plaintiff filed a claim for statutory stay pending bankruptcy proceedings in federal court.
On March 31, 2016, once the bankruptcy concluded, the plaintiff filed a motion to reset the law days on the property and the defendant filed an objection. On April 18, 2016, the court overruled the objection and granted the motion, setting the new law day as June 1, 2016. (April 18 order.) On May 9, 2016, the defendant then filed a motion for reconsideration, reargument, and articulation of the April 18 order. (May 9 motion.) The court subsequently denied the defendant's motion on May 23, 2016. (May 23 order.) On May 18, 2016, the defendant filed a motion to open the judgment of strict foreclosure entered in 2014. (May 18 motion.) The court denied this motion on May 31, 2016 (May 31 order) and set the new law day as July 6, 2016 (July 6 law day). Before the court entered its decision regarding the defendant's May 18 motion, the defendant filed an appeal on May 26, 2016 seeking appellate review of the April 18 order setting a new law day and the May 23 order denying the motion to reargue. (Second appeal.) The defendant took no action regarding the May 31 order. Twelve days after the July 6 law day, the Appellate Court dismissed the defendant's appeal on July 18, 2016, as frivolous. The defendant then filed the applicable notice of error in transfer of title at issue in this case on September 30, 2016. The plaintiff filed a motion to strike the notice on October 19, 2016, and both parties submitted memorandum supporting their respective positions. The parties eventually appeared at short calendar on November 14, 2016 for argument.
DISCUSSION
The defendant argues in her notice of error in transfer of title that her filing of the second appeal stayed the July 6 law day. Since her second appeal was pending until July 18, 2016, the defendant argues that the property never transferred to the plaintiff because the trial court failed to set new law days after the second appeal was dismissed.
The plaintiff counters by entering a motion to strike. In its motion, the plaintiff argues that the defendant incorrectly filed the May 9 motion under Practice Book § 11-12 instead of Practice Book § 11-11. Since Practice Book § 11-12 does not create an automatic appellate stay, the plaintiff argues that the May 9 motion did not extend the appeal period under Practice Book § 63-1. In addition, the plaintiff argues that the second appeal is also untimely and improper because it was filed after the twenty days allowed to appeal the April 18 order as required by Practice Book § 63-1, and therefore, the filing of the second appeal did not trigger the automatic appellate stay provided in Practice Book § 61-11(a). Thus, the plaintiff argues that under either theory, the July 6 law day is the operative law day, and title passed to the plaintiff on that date.
Practice Book § 11-12 provides in relevant part: " (a) A party who wishes to reargue a decision or order rendered by the court shall, within twenty days from the issuance of notice of the rendition of the decision or order, file a motion to reargue setting forth the decision or order which is the subject of the motion, the name of the judge who rendered it, and the specific grounds for reargument upon which the party relies." Practice Book § 11-12(d) provides, however, that " [t]his section shall not apply to motions to reargue decisions which are final judgments for purposes of appeal. Such motions shall be filed pursuant to Section 11-11." Practice Book § 11-11 provides in relevant part: " Any motions which would, pursuant to Section 63-1, delay the commencement of the appeal period, and any motions which, pursuant to Section 63-1, would toll the appeal period and cause it to begin again, shall be filed simultaneously insofar as such filing is possible, and shall be considered by the judge who rendered the underlying judgment or decision. The party filing any such motion shall set forth the judgment or decision which is the subject of the motion, the name of the judge who rendered it, the specific grounds upon which the party relies, and shall indicate on the bottom of the first page of the motion that such motion is a Section 11-11 motion. The foregoing applies to motions to reargue decisions that are final judgments for purposes of appeal, but shall not apply to motions under [section] . . . 11-12." (Emphasis added.)
In the present action, the April 18 order was a final judgment because " [u]nder our law, an action for strict foreclosure is brought by a mortgagee who, holding legal title, seeks . . . to foreclose an equity of redemption unless the mortgagor satisfies the debt on or before his law day . . . Without the setting of law days, the time for redemption has not been limited and the parties' rights remain unconcluded as to that issue. As a result, a strict foreclosure judgment that is silent as to law days cannot be final for the purpose of appeal. (Citations omitted, internal quotation marks omitted.) Connecticut National Bank v. L& R Realty, 40 Conn.App. 492, 494, 671 A.2d 1315 (1996), abrogated by Benvenuto v. Mahajan, 245 Conn. 495, 715 A.2d 743 (1998) (Court in Benvenuto accepted logic of Connecticut National Bank, but disagreed that inclusion of attorneys fees was necessary when determining whether judgment of strict foreclosure was final for purposes of appeal). Since the court issued a final judgment by setting the law days in this case, the defendant should have filed the May 9 motion pursuant to Practice Book § 11-11. The defendant filed her May 9 motion per Practice Book § 11-12, considering the face of the motion does not state, as required, Practice Book § 11-11, and the defendant clearly cited Practice Book § 11-12 in her memorandum attached to her motion to reargue. Therefore, the defendant's May 9 motion was improperly filed and did not extend the appeal period.
Moreover, Practice Book § 63-1(a) provides in relevant part: " Unless a different time period is provided by statute, an appeal must be filed within twenty days of the date notice of the judgment or decision is given . . . If a motion is filed within the appeal period that might give rise to a new appeal period as provided in subsection (c) of this rule, the appeal may be filed either in the original appeal period, which continues to run, or in the new appeal period . . ." Practice Book § 63-1(c) then provides in relevant part: " If a motion is filed within the appeal period that, if granted, would render the judgment, decision or acceptance of the verdict ineffective, either a new twenty-day period or applicable statutory time period for filing the appeal shall begin on the day that notice of the ruling is given . . . Motions that, if granted, would render a judgment, decision or acceptance of the verdict ineffective include, but are not limited to, motions that seek: the opening or setting aside of the judgment . . ." (Emphasis added.) If the procedures in Practice Book § 63-1 are followed, then Practice Book § 61-11(a) provides: " Except where otherwise provided by statute or other law, proceedings to enforce or carry out the judgment or order shall be automatically stayed until the time to file an appeal has expired. If an appeal is filed, such proceedings shall be stayed until the final determination of the cause . . ."
In the present case, the defendant did not file her appeal within the applicable twenty-day period required by Practice Book § 63-1, and therefore, she is not entitled to an automatic stay under § 61-11 because her motion to reargue did not extend the appeal period and her motion to open the original judgment of strict foreclosure was untimely as it was not filed during the actual appeal period for the April 18 order. An appeal must be filed within twenty days of the original decision in order to trigger an automatic stay. Tiber Holding Corp. v. Greenberg, 36 Conn.App. 670, 670-71, 652 A.2d 1063 (1995). The facts in Tiber are very similar to the facts in this case. In Tiber, the court rendered a final judgment on October 9, 1992. Id. The defendant filed a motion to reconsider on August 12, 1993. Id. The court subsequently denied that motion on October 22, 1993, and the defendant appealed on November 10, 1993, which was twenty days after the decision on the motion to reargue. Id. The court found the appeal untimely " because otherwise the same issues
In Chase Manhattan Mortgage Corp. v. Burton, 81 Conn.App. 662, 664 n.1, 841 A.2d 248 (2004), the court noted that " [t]he defendant's appeal from the judgment of strict foreclosure, which he filed more than five months after the judgment was rendered, is untimely." Further, " [a]lthough the defendant's motion to open would have extended the appeal period pursuant to Practice Book § 63-1(c), and, therefore, the automatic stay pursuant to Practice Book § 61-11(a), he did not file his motion until . . . after the original appeal period and automatic stay had expired and after title had already vested in the plaintiff." (Emphasis added.) Id., 665 n.3. that could have been resolved if timely raised would nevertheless be resolved, which would, in effect, extend the time to appeal." Id., 671.
In the present action, the defendant's second appeal clearly indicates that she was appealing both the April 18 order to set the law days and the May 23 order denying her motion to reargue. More than twenty days passed between the issuing of the April 18 order and the filing of the second appeal, so the appeal is untimely as for the April 18 order. Additionally, the motion to reargue was improperly filed under Practice Book § 11-12, and, as discussed above, such filing did not provide the defendant with an extended or new twenty-day appeal period after the court issued its May 23 order. It is submitted that the defendant exceeded the twenty-day period allowed to file an appeal of these orders, and the defendant took no further action to challenge the May 31 order entered by the court. Therefore, the operative law day was July 6, 2016, and title passed to the plaintiff on that date.
If the May 18 motion to open strict foreclosure had been filed properly, then it would have likely triggered a new or extended appeal period, similar to the situation discussed in Chase Manhattan Mortgage . Similarly, if the defendant would have filed her May 9 motion properly under Practice Book § 11-11, the motion would have triggered an automatic stay on proceedings. Finally, the defendant could have amended her second appeal to include the May 31 order, which would have likely stayed the July 6 law day. The defendant took none of these actions, and therefore, there was no appellate stay in effect on the July 6 law day.
CONCLUSION
For the foregoing reasons, the plaintiff's motion to strike the defendant's notice of error in transfer of title is granted.
It is so ordered.