March 11, 2013
by Jeffrey M. Knickerbocker
Hunt Leibert – USFN Member (Connecticut)
The Connecticut Appellate Court has recently ruled that the mortgagors were not entitled to have a judgment of foreclosure opened. Specifically, in PHH Mortgage Corporation v. Jean-Jacques, 139 Conn. App. 683, 57 A.3d 788 (Dec. 18, 2012), the appellate court held that the mortgagors’ failure to file a responsive pleading or appear at the hearing on the mortgagee’s motion for judgment of strict foreclosure was inexcusable, and that the mortgagors were not entitled to an order opening a default judgment of foreclosure.
In Jean-Jacques, the mortgagors alleged in their motion to open that plaintiff’s counsel had purposely confused them. According to the motion, the mortgagors contended that the plaintiff had marked the motion for judgment “ready” and, on the same day, the plaintiff also filed a form with the court to claim the motion for a hearing to be held on a different day. (In Connecticut, to have a motion considered by the court, a party must file a claim form to have the motion placed on the calendar.)
As recited in the appellate court’s decision, the factual background is that: “On November 29, 2010, the plaintiff filed a motion for default for the defendants’ failure to file a responsive pleading, which motion was granted by the trial court clerk on December 15, 2010. The plaintiff then moved for a judgment of strict foreclosure. This motion was claimed by the plaintiff on June 15, 2011, and was placed on the court’s short calendar for argument on July 5, 2011. The plaintiff marked the motion ‘‘ready,’’ and the defendants received notice of the hearing from the court and from the plaintiff. On July 5, 2011, the defendants failed to appear for argument on the motion and a default judgment of foreclosure by sale was entered. The sale date was set for
October 8, 2011. On September 12, 2011, the defendants, then represented by counsel, filed an amended motion to open the judgment. The defendants attributed their failure to appear at the July 5 hearing to a second short calendar reclaim on the same motion, filed by the plaintiff on June 27, 2011. The defendants received notice from the court of a July 18 hearing, which corresponded with the second reclaim, and allegedly assumed that this later hearing indicated the plaintiff’s intention to postpone the July 5 hearing.”
The trial court had a hearing on the motion to open. The hearing occurred on two separate days. However, the mortgagors did not testify on either day, nor did the mortgagors present any evidence to support their allegations. The trial court ruled in the plaintiff’s favor, and did not open the judgment. The mortgagors appealed.
The test that courts use in considering a motion to open a judgment is found in Connecticut General Statutes § 52-212. That statute requires that on a motion to open a judgment the movant must show both a valid reason to excuse his absence and a defense. The defendants had filed a (belated) answer and defense, challenging the plaintiff’s standing. However, the court did reach that defense. While standing had been an issue that could require a trial court to have an evidentiary hearing, the appellate court merely mentioned the standing issue in a footnote. The standing allegation was that the plaintiff did not allege when it came into possession of the note, and that the plaintiff was not licensed to do business in the state. Those allegations did not require the court to open the judgment.
There was evidence that defendants had received actual notice of the hearing from two sources — the court and the plaintiff. The court also concluded that a judgment should not be opened based on the defendants’ negligence. The appellate court found that, “[b]ecause of the defendants’ failure to testify and the unsupported arguments advanced regarding the effect of reclaiming the same motion more than one time, it was not unreasonable for the [trial] court to exercise its discretion and to deny the motion to open.” Id. at 687. Accordingly, it is clear that the court is not obligated to take the bald assertions advanced by borrowers or their counsel. Thus, based on the fact that there was no evidence of a valid reason for the defendants’ failure to appear at the hearing on the judgment, the trial court was correct in denying the motion to open.
Editor’s Note: The author’s firm represented PHH Mortgage Corporation in the case summarized here.
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