September 9, 2013
by Robert Wichowski
Bendett & McHugh, P.C. – USFN Member (Connecticut, Maine, Vermont)
The Connecticut Rules of Practice together with one piece of appellate case law have combined to create what could be called a “perpetual motion machine.” This confluence of authority would allow a borrower to, in theory, continually file motions to open a foreclosure judgment and forestall vesting or a sale, ad infinitum.
The matter of First Connecticut Capital, LLC v. Homes of Westport, LLC, 112 Conn. App. 750, 762, 996 A.2d 239 (2009), held that no foreclosure sale could occur during the time for which a party is able to take an appeal after a hearing on a motion that would potentially affect the final judgment. Practically, and when taken in conjunction with Practice Book § 61-11, which provides for an automatic appellate stay upon the hearing of any motion that would affect a final judgment, this means that even if a defendant’s motion to open a judgment of foreclosure is denied, a court must not allow a sale or vesting to occur within 20 days of the denial of the motion. This would occur in order to account for the 20-day appeal period following the denial of such a motion — notwithstanding a motion’s lack of merit or the number of motions that had previously been heard or denied, unless extraordinary measures were taken by the plaintiff or the court.
The Rules Committee to the Superior Court, after input from the Bench-Bar standing Committee on Foreclosures, has adopted a change to Section 61-11 that will remedy this situation and is scheduled to take effect on October 1, 2013. The change adds two subsections that fundamentally alter the procedures for opening foreclosure judgment as well as the automatic appellate stays incident to the denial of any such motions.
Subsection G changes the procedures for motions related to judgments of strict foreclosure. (Strict foreclosure is a procedure in which title will vest in the plaintiff by operation of law without a sale.) The addition provides that if there have been two prior motions brought by the owner of the equity seeking to open or otherwise modify the underlying judgment that have been denied, the filing and hearing of a third motion does not trigger the aforementioned automatic appellate stay, unless an affidavit is filed simultaneously therewith averring that the motion is filed for good cause arising after the court’s ruling on the party’s most recent motion. The affidavit must recite specific supporting facts. If such an affidavit is filed, the automatic stay would be in effect. However, the opposing party will have an opportunity to contest it with a counter-affidavit and a motion to terminate the stay, a hearing of which will be held two weeks after filing. No further appellate stay will be triggered by a decision granting termination of the stay.
The changes regarding sales are far different. Subsection H provides that if a motion to open a judgment of foreclosure by sale has been denied sooner than 20 days from the scheduled sale date (which would otherwise have triggered the automatic stay and required a re-setting of the sale) the sale will continue as scheduled. However, no motion for approval of the sale is to be filed or acted on by the court until the 20-day appeal period has run. Sales in Connecticut are expensive and can cost a plaintiff $3,000-$6,000. In some situations, this new procedure would eliminate the need to have multiple, costly sales.
These amendments to the Connecticut Rules of Appellate Procedure are an important step toward preventing defendants from needlessly impeding a final resolution in foreclosure matters when there is no meritorious reason.
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