September 13, 2016
by James Pocklington
Hunt Leibert – USFN Member (Connecticut)
In a recent case, the Connecticut trial court was challenged by a vesting that occurred years prior when it implicated the Judicial Branch’s stated mission of “serv[ing] the interests of justice and the public by resolving matters brought before it in a fair, timely, efficient and open manner.” Ultimately, the court ruled to open the nearly two-year-old vesting, citing the facts of the case as a “rare case in which there is a significant failure in the judicial process.” [US Bank NA v. Tulloch, FBT-CV-09-5023011-S].
Connecticut has long had a statutory bar on opening judgment by a mortgagor after the vesting of title. Codified currently in Conn. Gen. Stat. 49-15, this ban has served to provide foreclosing mortgagees with assurances regarding the finality of title and ensure proper reliance on the absolute title to a property taken through a foreclosure action. While often challenged unsuccessfully, the prohibition on opening judgments post-vesting was substantially weakened by Wells Fargo Bank v. Melahn, 148 Conn. App. 1 (2014). There, the appellate court determined that certain rare instances (in that case, blatant misrepresentations by the plaintiff’s foreclosure counsel) could warrant deviation from § 49-15.
There have been efforts, mostly in vain, to expand Melahn to other forms of alleged error. In Bank of New York Mellon v. Caruso, NNH-CV-12-6031454-S (Aug. 21, 2015), the trial court ruled that an error by a court-appointed attorney (in that matter, the trustee for the defendant’s disciplinarily-suspended attorney) was sufficient to revert a vesting. While part of a prior memorandum and not the motion, the Caruso court’s final holding was undoubtedly influenced by its determination that the trustee was an agent of the court and that “a dereliction of duty by that agent … must be subject to remediation by the court.”
In Tulloch, the factual errors were determined after an evidentiary hearing to have been committed by the court’s own clerks. Several days prior to the vesting, the defendant filed a motion to open along with a request to waive fees for same. At that time, the clerk was well aware of the time-sensitive nature of both motions and affirmatively promised to notify the defendant by phone. When no phone call was received prior to the law day, the defendant made a series of calls to the clerk’s office, culminating in a number of voicemails and a clerk finally advising the defendant to again wait for a phone call, which never came. The defendant relied on that advice to her apparent detriment and title vested. It came out in the subsequent evidentiary hearings that the motions had been lost by the clerk and found some thirteen days later.
Ultimately, Tulloch presents an extraordinarily slippery slope where vesting was rewound based on court error. By expanding the possibility of failure of process to clerical error, the trial court’s decision in Tulloch threatens the finality of title through a foreclosure action.
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