Opinion
No. CV09 600 53 32 S
April 28, 2011
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO OPEN
FACTUAL BACKGROUND
On December 15, 2009, the plaintiff, Provident Funding Associates, L.P., filed a foreclosure action against the defendants, Errol Beckford and Bethan Beckford. The plaintiff alleged the following facts. On December 11, 2007, the defendants owed the plaintiff $236,000, as evidenced by a promissory note in this amount, payable to the order of the plaintiff. To secure this note, the defendants "mortgaged to Mortgage Electronic Registration Systems, Inc., Solely as Nominee for" the plaintiff, the premises at 173 Beechmont Avenue in Bridgeport, Connecticut. This mortgage was recorded on December 13, 2007. The mortgage is now in default, "by virtue of nonpayment of the installments of principal and interest due on September 1, 2009" and each month thereafter. The plaintiff has elected to accelerate the balance due on the note and declared the note due in full.
On April 16, 2010, the plaintiff filed a motion for failure to disclose a defense against the defendants. On May 3, 2010, the court granted this motion and entered a judgment of strict foreclosure (Hartmere, J.). On May 25, 2010, the parties entered into a stipulation to extend the mediation period to July 23, 2010, so that negotiations regarding the defendants' mortgage could continue. On September 30, 2010, the parties held their final mediation session and on October 5, 2010, the mediator's final report was filed. On October 6, 2010, the plaintiff filed a motion to open the judgment of strict foreclosure and to extend the law date to allow plaintiff time to review a possible loss mitigation workout. On the same day, the court granted this motion, entered a modified judgment and extended the law date until December 14, 2010 (Hartmere, J.). On December 22, 2010, after the law date passed, the plaintiff filed a motion for deficiency judgment against the defendants. On January 14, 2011, the plaintiff filed a proposed execution of ejectment, which was signed and entered by the clerk of the court on January 28, 2011.
On February 4, 2011, the defendants filed the present motion to open and vacate the judgment of strict foreclosure. On February 17, 2011, the plaintiff filed an objection to the defendants' motion and a memorandum in support thereof. On March 8, 2011, the defendants filed a memorandum in support of their motion. On March 15, 2011, the plaintiff filed a supplemental memorandum in opposition. On March 24, 2011, the defendants filed the affidavit of Errol Beckford in support of their motion. The court heard argument on March 28, 2011.
DISCUSSION
The defendants argue that the court should open the judgment of strict foreclosure because they entered into a written loan modification agreement with the plaintiff during the last mediation session on September 30, 2010. They argue that the plaintiff never sent the defendants any loan modification documents to sign or return. Moreover, even if the plaintiff sent such documents, the defendants argue that they never received them and that the plaintiff failed to confirm their receipt. The defendants appear to believe that after the mediation session on September 30, 2010, the loan modification agreement was already binding. They argue that there must have been a miscommunication or that the plaintiff "committed a simple bureaucratic error or oversight."
The plaintiff argues that there are three reasons why the court should deny the defendants' motion to open. First, it argues that the defendants failed to sign and return a copy of the written loan modification agreement. Thus, no binding agreement was reached. Second, it argues that the defendants' claim that they paid the plaintiff under the modification agreement is flawed because they have submitted no evidence in support of this claim. Third, the plaintiff argues that General Statutes § 49-15 prohibits the court from opening a judgment of strict foreclosure since title has already vested in an encumbrancer. The law day passed on December 14, 2010, after which title became absolute in the plaintiff.
In support of their motion, the defendants submitted the affidavit of Errol Beckford. Errol Beckford states that at the last mediation session, "in connection with a telephone conversation with a representative of the Plaintiff, the Plaintiff's attorney presented a mortgage modification plan which included extending the terms of the loan to 40 years and adding the arrearage to the unpaid principal. I was told by the Plaintiff's attorney and the mediator that I would receive documentation from the lender and that I would have to make my first mortgage payment by November 1, 2011." Errol Beckford then states that he received a mortgage payment booklet from the plaintiff in October 2010. The first coupon in the booklet was to be used for a payment due by November 1, 2010. He made this payment and the plaintiff cashed his check on October 28, 2010. He then wrote a timely check for a second payment using the mortgage payment booklet provided by the plaintiff, who rejected this check. Errol Beckford states that he received no other communications from the plaintiff during this time.
Errol Beckford's affidavit indicates that the first mortgage payment would be due on "November 1, 2011." The court assumes he intended to state that this payment would be due on November 1, 2010, as consistent with the check attached to his affidavit. In paragraphs six and seven of his affidavit, Errol Beckford also uses "2011" instead of "2010." In both instances, the court assumes that he intended to write "2010."
In opposition to the defendants' motion, the plaintiff submitted several affidavits. First, it filed the affidavit of Adam Avallone, an attorney who attended the mediation session on September 30, 2010. He states that he "expressly told the Defendants and their attorney and the mediator that the documentation for the modification would be prepared and would be sent to the Defendants for their review and execution." Second, the plaintiff filed the affidavit of Clark McGuire, an assistant vice president of the plaintiff. McGuire states that he was informed and believes "that it was explained to the [defendants] and their attorney that the documentation for the loan modification would be prepared and sent to the [defendants] who would have to sign and return the documentation, in addition to making the payments required by the written loan modification agreement." He further states that the plaintiff's regular practice is to require loan modification agreements to be in writing.
The plaintiff also attached a copy of a letter it claims it sent to the defendants on October 1, 2010. The letter provides, in relevant part: "We are pleased to advise you that your request for a Loan Modification has been approved." The letter then sets forth the terms of this new agreement. The agreement also provides, "[s]hould you agree to these terms, you will be required to sign, notarize, and return the Loan Modification documents, along with your first modified monthly payment, processing fees, and your cash contribution . . . by 11/1/10." The plaintiff also attached a copy of a letter it claims it sent to the defendants on November 30, 2010. This letter states, "[w]e regret to inform you that your request for a Loan Modification has been denied . . . Borrower did not accept approved workout by offer deadline."
"The opening of judgments of strict foreclosure is governed by General Statutes § 49-15." First National Bank of Chicago v. Luecken, 66 Conn.App. 606, 611, 785 A.2d 1148 (2001), cert. denied, 259 Conn. 915, 792 A.2d 851 (2002). Section 49-15(a) provides, in relevant part: "(1) Any judgment foreclosing the title to real estate by strict foreclosure may, at the discretion of the court rendering the judgment, upon the written motion of any person having an interest in the judgment and for cause shown, be opened and modified . . . provided no such judgment shall be opened after the title has become absolute in any encumbrancer except as provided in subdivision (2) of this subsection." Subdivision (2) of § 49-15(a) does not apply to the present matter since the plaintiff does not agree to the opening of the judgment of strict foreclosure.
Section 49-15(a)(2) provides, in relevant part: "Any judgment foreclosing the title to real estate by strict foreclosure may be opened after title has become absolute in any encumbrancer upon agreement of each party to the foreclosure action who filed an appearance in the action . . ."
Appellate cases interpreting § 49-15(a) confirm that once title has vested in any encumbrancer, the court generally cannot open the judgment of strict foreclosure. See, e.g., Myrtle News Assn., Inc. v. Bordes, 125 Conn.App. 12-15, 6 A.3d 163 (2010); First National Bank of Chicago v. Luecken, supra, 66 Conn.App. 612.
In support of their motion, the defendants cite New Milford Savings Bank v. Jajer, 244 Conn. 251, 708 A.2d 1378 (1998). There, our Supreme Court held that "[t]he equitable nature of foreclosure proceedings persuades us that § 49-15 does not preclude the trial court from exercising its discretion to open the judgment of strict foreclosure in the circumstances of this case." (Emphasis added.) Id., 257. The defendants argue that the court should exercise this equitable discretion to open the judgment of strict foreclosure.
The defendants, however, fail to acknowledge the limits of the holding in Jajer. In New Milford Savings Bank v. Jajer, supra, 244 Conn. 258-59 n. 12, the court explained, "[t]he Appellate Court relied upon several Connecticut cases in concluding that a judgment of foreclosure cannot be opened, in any circumstances, after title has become absolute in the encumbrancer. We conclude, however, that the cases from this court are distinguishable, because they deal with extinguishment of the mortgagor's right of redemption after passage of the law day . . . By contrast, in this case we consider whether a mortgagee may open a judgment of foreclosure in order to amend an inadvertent omission."
Our Appellate Court later explained the Jajer holding. It wrote, "[t]he court in Jajer held that the trial court had equitable jurisdiction to open the judgment of strict foreclosure after title had already vested, where the party requesting the opening was the foreclosing bank. The bank sought the opening of the judgment in order to amend its complaint to include certain other property owned by the defendant; the complaint inadvertently had included only two of the three parcels encumbered by the mortgage conveyance." First National Bank of Chicago v. Luecken, supra, 66 Conn.App. 614 n. 4. " Jajer stands for the proposition that the trial court retains jurisdiction to open a judgment of foreclosure to correct an inadvertent omission in a foreclosure complaint." Connecticut Commercial Lenders, LLC v. Teague, 105 Conn.App. 806, 813, 940 A.2d 831 (2008). Thus, "[s]ection 49-15 and the case law thereunder make it clear that a court may not open a judgment of strict foreclosure once title has vested." First National Bank of Chicago v. Luecken, supra, 66 Conn.App. 614.
The court sympathizes with the defendants, who appear to sincerely believe that they reached an enforceable loan modification agreement with the plaintiff at the mediation session on September 30, 2010. This belief is reasonable, particularly in light of the plaintiffs' decision to mail the defendants a mortgage payment booklet and to accept a payment from the defendants who used a coupon from this booklet.
Here, however, the defendants do not ask the court to open the judgment of strict foreclosure to correct an inadvertent omission in the foreclosure complaint. Rather, they ask the court to do exactly what § 49-15 and the case law thereunder prohibit. The court cannot open a judgment of strict foreclosure once title has become absolute in any encumbrancer, unless all of the parties agree to open the judgment. At the close of business on the law day, December 14, 2010, title vested in the plaintiff. The plaintiff does not agree to open the judgment of strict foreclosure. This court can not open the judgment under these circumstances.
For the foregoing reasons, the court will deny the defendants' motion to open and vacate the judgment of strict foreclosure.