Opinion
No. CV-04 0286405-S
February 15, 2005
MEMORANDUM OF DECISION RE MOTION TO OPEN JUDGMENT OF FORECLOSURE
I PROCEDURAL HISTORY
On December 30, 2003, the plaintiff, Ameriquest Mortgage Company, filed its complaint seeking a judgment of foreclose on real property and improvements located in the city of New Haven. One of the named defendants was First Consumer Credit, Inc. (FCC). It was alleged in the complaint that FCC had a mortgage on the real property subsequent to that of the plaintiff. The plaintiff sought, inter alia, to foreclose this subsequent mortgage.
On January 15, 2004, the court granted the plaintiff's motion to default FCC for failure to appear. Thereafter, on February 2, 2004, the court entered a judgment of strict foreclosure. Law days were set for March 1, 2004, et seq. The court's file indicates that the owners of equity of redemption failed to redeem on their law day and FCC, the subsequent encumbrancer, also failed to redeem. Accordingly, title vested in the plaintiff on March 3, 2004.
FCC, in a motion filed on April 19, 2004, has moved to open and vacate the judgment of strict foreclose entered on February 2, 2004. The plaintiff filed a written objection to the motion. The motion was argued to the court on January 3, 2005.
II DISCUSSION
Briefly stated, FCC contends that the court lacked jurisdiction because it did not comply with the requirements of General Statutes § 52-87(b) since it failed "to provide FCC a ninety (90) day statutory continuance and FCC did not have actual notice of the action prior to the entry of judgment." (Motion to Open Judgment, p. 2.). In support of its motion, FCC submits the affidavit of James D. Borschow, the president of FCC, in which he states that "[t]he plaintiff did not provide any service upon First Consumer Credit, Inc., but rather claims to have served its Connecticut registered agent." (Motion to Open Judgment, Exhibit A.) Borschow further attests that FCC "never received the summons and complaint filed by the plaintiff in this matter." (Motion to Open Judgment, Exhibit A.)
Section 52-87(b) provides,
If the defendant is not an inhabitant or a resident of this state at the commencement of the action and does not appear therein, the court shall continue or postpone it for three months and may, if it deems further notice advisable, direct such further notice of the pendency of the action to be given to the defendant by publication in some newspaper, or otherwise, as it deems expedient, or may authorize any person empowered to serve process by the laws of the foreign jurisdiction in which the defendant resides to serve upon the defendant a copy of the summons and complaint and of the order of notice. Any such person serving process in a foreign jurisdiction shall make affidavit of his actions concerning the process on the original order of notice. If, upon the expiration of such three months, the defendant does not then appear and no special reason is shown for further delay, judgment may be rendered against the defendant by default. Upon the expiration of the three-month continuance, it shall be presumed prima facie that no special reason for further delay exists. In actions of foreclosure, including prayers for relief incident thereto and part thereof, judgment may then be rendered upon the plaintiff's motion for judgment of foreclosure.
The plaintiff argues in opposition that FCC had actual notice of the foreclosure action because process was served upon its appointed agent for service of process. Further, the plaintiff argues that General Statutes § 49-15 prohibits the opening of the judgment because title became absolute in the plaintiff on March 3, 2004.
Section 49-15(a) provides, "Any judgment foreclosing the title to real estate by strict foreclosure may, at the discretion of the court rendering the same, upon the written motion of any person having an interest therein, and for cause shown, be opened and modified, notwithstanding the limitation imposed by section 52-212a, upon such terms as to costs as the court deems reasonable; but no such judgment shall be opened after the title has become absolute in any encumbrancer."
The parties do not dispute that FCC is a foreign corporation authorized to do business in the state of Connecticut. General Statutes § 33-929(a) provides in relevant part, "When the registered agent is other than the Secretary of the State and his successors in office, service may be effected by any proper officer or other person lawfully empowered to make service by leaving a true and attested copy of the process, notice or demand with such agent or, in the case of an agent who is a natural person, by leaving it at such agent's usual place of abode in this state."
As previously noted, FCC claims that it did not receive notice of the action against it. The record reveals, however, that FCC was properly served with the complaint on December 22, 2003. An examination of the court's file reveals a return of service by Robert A. Aceto, State Marshall. The return states in relevant part, "in the Town of Hartford, I served the within named defendant, FIRST CONSUMER CREDIT, INC., by leaving with Lexis Document Services, Inc., its Registered Agent, who is duly authorized to accept service, with and in the hands of Luz Marquez, Secretary, a true and attested copy of the original Writ, Summons and Complaint, with Lis Pendens and with Notice of C.G.S. Section 49-31d through 49-31i, inclusive, as amended, with my endorsement thereon." (Emphasis in original.) FCC has not provided the court with any evidence that its registered agent did not receive in-hand service in the manner specified in the marshal's return of service. Service upon a registered agent is notice to the foreign corporation. See General Statutes § 33-929(a).
Section 52-87(d) provides, "A continuance or postponement under this section shall not be granted or, if granted, shall terminate if actual notice is shown in accordance with section 52-88." "There is no principle of law better settled, than that every act of a court of competent jurisdiction shall be presumed to have been rightly done, till the contrary appears: and this rule applies as well to every judgment or decree, rendered in the various stages of their proceedings from the initiation to their completion, as to their adjudication that the plaintiff has a right of action . . . The presumption extends to every step in the proceedings and embraces every fact or matter going to the authority of the court to render the judgment assailed. If a statute required a certain affidavit to be filed or a certain fact to be found prior to the rendition of judgment, it will be presumed, in the absence of any statement or showing upon the subject, that such affidavit was filed or such fact found . . . Jurisdictional facts are conclusively presumed in domestic courts of general jurisdiction, even when not found by the court, unless the record itself shows the contrary." (Citations omitted; internal quotation marks omitted.) Robertson v. Pazzalaro, 33 Conn.Sup. 569, 573-74, 363 A.2d 755 (1976); see also Hartford Electric Light Co. v. Tucker, 183 Conn. 85, 90, 438 A.2d 828 (1981).
Section 52-88 provides, "In any action in which property is garnished, if the defendant does not appear, any garnishee may be admitted to defend his principal; but, if the defendant is not in this state and does not appear, personally or by attorney, and the garnishee does not appear to defend, the action shall be continued, postponed or adjourned for three months from the return day of the writ. A continuance, postponement or adjournment, prescribed in section 52-87 or this section, shall not be granted or, if granted, shall terminate whenever the court finds that the absent or nonresident defendant, or his authorized agent or attorney, has received actual notice of the pendency of the case at least twelve days prior to such finding, and thereupon, unless some special reason is shown for further delay, the cause may be brought to trial."
In this case, a finding of actual notice can be inferred from the record before the court because the marshal's return of service reflects in-hand service on FCC's registered agent and the court proceeded to enter judgment. The presumed finding of actual notice obviates the need to grant a continuance pursuant to § 52-87. Id. Accordingly, the court denies FCC's motion to open judgment.
FCC further argues that § 49-15 does not apply because the court lacked jurisdiction to enter the judgment of foreclosure due to its failure to comply with § 52-87(b). This argument fails because, as discussed above, there was no need to continue the matter under § 52-87 since FCC received actual notice. See Robertson v. Fazzalaro, supra, 33 Conn.Sup. 573-75; see also Reiner, Reiner Bendett v. Cadle Co., Superior Court, judicial district of Hartford, Docket No. CV 04 0831614 (August 2, 2004, Freed, J.T.R.) ( 37 Conn. L. Rptr. 602) (finding court's failure to grant statutory continuance set forth in § 52-87 proper where record reflected that the non-resident defendant corporation received actual notice by signing the return receipt requested by the marshal). Accordingly, since, pursuant to § 49-15, "no judgment shall be opened after the title has become absolute in any encumbrancer," the court lacks the power to open judgment in this matter.
III CONCLUSION
Defendant FCC's motion to open judgment is denied for the reasons stated.
So Ordered.
BY THE COURT
Peter Emmett Wiese, Judge