Opinion
No. DBD CV07 5003392 S
October 10, 2008
ORDER RE MOTION TO OPEN JUDGMENT NUNC PRO TUNC (#111)
On December 31, 2007, the court (Shaban, J.) entered a judgment of strict foreclosure against the defendants setting a law day of February 19, 2008 with title to vest in the plaintiff on February 20, 2008. Thereafter, on February 19, 2008, the plaintiff filed a motion to open judgment and extend the law day. The court (Sheedy, J.) granted the motion the same day and extended the law day to April 22, 2008. Title to the property vested in the plaintiff on April 23, 2008. On August 6, 2008, after title had vested, the plaintiff filed the instant motion to open judgment on the grounds that the parties had entered into an agreement and the plaintiff would waive the vesting of title.
In support, the parties submitted a signed stipulation dated July 16, 2008 which states:
1. The Judgment of Strict Foreclosure entered in this matter on February 19, 2008 with title vesting in the plaintiff on April 23, 2008 be reopen [sic] and vacated.
2. The parties specifically waive the vesting of title that was to have occurred under the terms of Judgment of February 19, 2008.
3. The defendant is negotiating loan modification with the plaintiff, prior to the vesting of title.
As to the first sentence, the court reads this to mean that the parties are asking the court to open and vacate the judgment. As to the second sentence, the court notes the vesting of title had already occurred on April 23, 2008. As to the third sentence, the language employed by the parties is unclear as to the status of the negotiations between the parties. It refers to negotiation in the present tense, but then reflects that such negotiation was prior to the vesting of title. Of course, as of the date of the filing of this motion, title had already vested in the plaintiff. However, no matter how the statement is read, the language does not reflect an actual agreement as to a loan modification, but rather, reflects that there was some ongoing negotiation for such an agreement at some point in time. The language in the motion itself, as opposed to the stipulation, indicates that the "parties have entered into a workout."
Our law relative to the vesting of title following a judgment of strict foreclosure is found in General Statutes § 49-15(a) which states in relevant part that "no such judgment shall be opened after title has become absolute in any encumbrancer."
That section of the statute states in full:
(a) 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.
However, in New Milford Savings Bank v. Jajer, 244 Conn. 251, 260, CT Page 16244 708 A.2d 1378 (1998), the court noted that "§ 49-15 does not deprive the trial court of jurisdiction to open a judgment of foreclosure to correct an inadvertent omission in a foreclosure complaint." Subsequently it has been noted that "[t]he circumstances of Jajer are unique and the court's holding is limited." First National Bank of Chicago v. Luecken, 66 Conn.App. 606, 614, 758 A.2d 1148 (2001), cert. denied, 259 Conn. 915, 792 A.2d 851 (2002). Other appellate and several recent superior court cases have continued to follow the mandate of § 49-15. Connecticut Commercial Lenders, LLC v. Teague, 105 Conn.App. 806, 940 A.2d 831 (2008); Equicredit v. Karageorge, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 04 0085548 (April 28, 2005 Curran, J.); Sound House Condominium v. Berry, Superior Court, judicial district of Fairfield, Docket No. CV 03 0399566 (January 20, 2004, Stevens, J); Chase Manhattan Mortgage Corp. v. Burton, Superior Court, judicial district of Hartford, Docket No. CV 02 0818303 (February 7, 2003, Satter, J.T.R.) (34 Conn. L. Rptr. 91).
[A] critical factor to be recognized in connection with a motion to reopen a judgment of strict foreclosure [made after the expiration of the time to appeal from the initial foreclosure judgment] is that the motion must be heard . . . prior to the vesting of title . . . [I]f the court [does] not hear the defendant's . . . motion to open prior to the vesting of title in the plaintiff, the trial court [is] without jurisdiction to open the judgment. (Citations omitted; internal quotation marks omitted.)
Equicredit v. Karageorge, supra, Superior Court, Docket No. CV 04 0085548.
It should be noted that judgments may be opened under the court's inherent authority where it was rendered without jurisdiction over the party. See generally Broaca v. Broaca, 181 Conn. 463, 467-68, 435 A.2d 1016 (1980); General Motors Acceptance Corp. v. Pumphrey, 13 Conn.App. 223, 228, 535 A.2d 396 (1988). Recently our Supreme Court addressed the issue of lack of jurisdiction over a party in a foreclosure action in Argent Mortgage Co., LLC v. Huertas, 288 Conn. 568, 576, 953 A.2d 868 (2008), wherein it noted that "a judgment of strict foreclosure ordinarily cannot be opened after the law day has passed, [but] the judgment can be attacked on the ground that the court lacked jurisdiction over the party challenging it."
There is also inherent authority to open a judgment where fraud, duress, accident or mistake has occurred. Kenworthy v. Kenworthy, CT Page 16245 180 Conn. 129, 131, 429 A.2d 837 (1980). It has also been intimated that a judgment may be opened where there is evidence of a waiver of the applicability of the statute. Crane v. Loomis, 128 Conn. 697, 25 A.2d 650 (1942). In Crane, the court rejected the defendant's argument that the failure of the plaintiff to refer to General Statutes § 5084 (predecessor to § 49-15) in challenging the motion to open the judgment constituted a waiver by the plaintiff to the invocation of that statute. It specifically stated that " [i]n the absence of waiver, the reopening of a judgment after [the vesting of title] was erroneous." (Emphasis added.) Crane v. Loomis, supra, 128 Conn. 700. Despite this language, the Crane court also noted that while reasons given in support of a motion to open a judgment may not be compelling enough to avoid the constrictions of § 49-15, they may be compelling enough to form the basis of a separate proceeding in equity seeking appropriate relief. Id., 699.
In the present case, the circumstances set forth by the plaintiff in its motion, as embodied in the stipulation filed by the parties, are not those set forth in the case law allowing the opening of a judgment after title has vested.
[T]he public policy expressed in § 49-15 that a foreclosure judgment shall not be opened after title vests is crystal clear and serves the public interest of assuring good title passes through the foreclosure process.
Chase Manhattan Mortgage Corp. v. Burton, supra, Superior Court, Docket No. CV 02 0818303. Here, the motion to open judgment was filed on August 6, 2008, nearly three and one-half months after title to the property had vested in the plaintiff and approximately five and one-half months after the original judgment of strict foreclosure had been opened, vacated and a new judgment entered on February 19, 2008. Because the motion was filed after title had vested in the plaintiff on April 23, 2008, there is no practical relief that the court can grant. Argent Mortgage Co., LLC v. Huertas, supra, 288 Conn. 582.
Even though the parties here have agreed to waive the vesting of title, it is insufficient in the present circumstance to justify opening the judgment because not only has the motion been presented well after title has vested, but there is also nothing in the stipulation to indicate that there is a formal final agreement in place between the parties, or a recitation of the specific terms thereof. There is only the representation that there is, or were, negotiations between the parties. Even the reference that the parties have "entered into a workout" is ambiguous at best.
The court is cognizant of the fact that foreclosure proceedings are equitable, that § 49-15 is remedial in nature, and that the purpose of a modification is "to achieve an outcome fairer to the parties than provided by the original judgment in light of conditions as they appear when the motion to open is decided . . . [E]ither a forfeiture or a windfall should be avoided if possible." (Citations omitted, internal quotation marks omitted.) Society for Savings v. Stramaglia, 225 Conn. 105, 110, 621 A.2d 1317 (1993). The ability to achieve that purpose, however, is subject to the limitations of the language of § 49-15. "A critical factor to be recognized in connection with a motion to reopen a judgment of strict foreclosure is that the motion must be heard, and not merely filed, prior to the vesting of title. There is nothing in § 49-15 suggesting the contrary; the statute is clear that the court loses its power to affect the judgment once title has become absolute in any encumbrancer." D. Caron G. Milne, Connecticut Foreclosures (4th Ed. 2004) § 9.01C.
To allow the vesting of title to be "undone" by a motion to open the judgment long after title has vested would invite ambiguity and uncertainty into the issues of ownership, marketable title, record title, insurable title, liability for tax assessments, conveyance tax obligations and the like. Definity and finality as to the status of the ownership of a parcel of real estate are necessary for the efficient and effective transactional transfer of title between potential grantors and grantees and to establish reliable notice of such transfers upon municipal land records.
While the court recognizes the current climate relative to societal efforts to avoid the hardships to mortgagors resulting from foreclosure, it is the legislature and not the court which possesses the power to craft amenable remedies. The ability of the legislature to do so swiftly and thoroughly is evident in its adoption in the past legislative session of the foreclosure mediation program. The court will not usurp the powers of the legislature.
P.A. 08-176, An Act Concerning Responsible Lending and Economic Security. That Act was passed late in the 2008 legislative session and was effective July 1, 2008.
Because the motion was filed after title had vested in the plaintiff, the motion to open judgment is hereby dismissed as it is moot. Argent Mortgage Co., LLC v. Huertas, supra, 288 Conn. 582.