Chase Home Financial v. Steve Tsialas et al. (2011)

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO OPEN AND SET ASIDE JUDGMENT OF STRICT FORECLOSURE, # 115

The defendant, Steve Tsialas, filed a motion to open and set aside a judgment of strict foreclosure to which the plaintiff, Chase Home Financial, orally objected.   This court heard argument on the motion and the objection on February 28, 2011.   For the reasons set forth herein, the motion to open and set aside the judgment of Strict Foreclosure is granted.

The pertinent facts in this case are not in dispute.   The defendant originally represented himself in this action.¹  As a self-represented party, the defendant attended all court proceedings and participated with the plaintiff in several sessions within the Foreclosure Mediation Program.   A judgment of strict foreclosure entered against the defendant on May 10, 2010.   He filed a motion to open the judgment and extend the Law Day, which was calendared for August 16, 2010.   The plaintiff did not file an objection to the motion.   The defendant failed to mark the motion to open “Ready.”   But, he appeared at Short Calendar on August 16, 2011, which was also the date for the Law Day in the file.   When the defendant appeared at Short Calendar on August 16, 2010, he was told that his motion was “Off” and that nothing was going to happen in the file on that date.   No one appeared at Short Calendar on August 3, 2010, for the plaintiff.   The parties continued to participate in the Foreclosure Mediation Program by agreement.   Pursuant to joint motions by the parties to extend the mediation period beyond the 15 days after the return date, the plaintiff and defendant met with a mediator on June 10, 2010, August 3, 2010, October 1, 2010 and January 27, 2011.

On January 25, 2011, counsel for the plaintiff signed a Notice to Quit, which was served on the defendant on February 4, 2011.   The defendant then retained counsel, who renewed the defendant's motion to open the judgment.   The plaintiff did not file an Objection, but argued that this court should deny the motion because it lacked jurisdiction over the case because title had vested in the plaintiff in August 2010.

In this case, the court finds that title vested in the plaintiff by mistake.   The actions and conduct of both parties clearly evidence that they intended and desired to continue to resolve the matter through the Foreclosure Mediation program.   They continued to file joint motions to extend the period during which they could participate in the program.   They continued to participate in the program.   The plaintiff never represented to the Foreclosure Mediation specialist, nor to the court, that it desired to stop the Mediation sessions to pursue the other legal remedies available to it.   From the record, it appears that the parties engaged in all of the mediation sessions in good faith.

The court further finds that the defendant intended to open the judgment and the plaintiff did not object to the granting of the defendant's motion to open.   Though it is true that the defendant failed to get his motion to open heard prior to the passage of the Law Day, it is equally true that he was unaware that failure to have the motion heard on the August 16, 2010 Short Calendar, would result in the vesting of the title in the plaintiff.²  The vesting of title in the plaintiff was not an event that either side intended, as indicated by their actions and conduct in July and August, when they continued to seek court permission to participate in the Foreclosure Mediation Program.   Therefore, this court concludes that title vested in the plaintiff on August 16, 2010 in error or by mistake.

“The law governing strict foreclosure lies at the crossroads between the equitable remedies available by the judiciary and the statutory remedies provided by the legislature ․ Because foreclosure is peculiarly an equitable action ․ the court may entertain such questions as are necessary to be determined in order that complete justice may be done.”  (Internal quotation marks and citations omitted.)  Milford Savings Bank v. Jajer, 244 Conn. 251, 254, 708 A.2d 1378 (1998).   Fraud, accident, mistake and surprise are all valid grounds for opening a judgment.  Cavallo v. Derby Savings Bank, 188 Conn. 281, 284, 449 A.2d 986 (1982);  Hoey v Investor's Mortgage & Guaranty Co., 118 Conn. 226, 230-31, 171 A. 438 (1934).

This court finds that there are valid grounds for opening the judgment, even though title has vested in the plaintiff.   The Law Day passed, (apparently unbeknownst to either party and) before the defendant was able to open the judgment of Strict Foreclosure, due to mistake and error.   Therefore, it is appropriate, equitable and just to grant the defendant's motion, now.   The parties have been participating in Foreclosure Mediation as recently as last month.   Therefore, this court refers this matter back to that program.

Robinson, A., J.

FOOTNOTES

FN1. His current counsel filed an appearance last month, on February 14, 2011..  FN1. His current counsel filed an appearance last month, on February 14, 2011.

FN2. The court is well aware that, by law, self-represented parties are held to the same standards as those who are represented by counsel.   However, resolution of this matter requires a determination of the equitable issues, as well-as the strictly “legal” and “procedural” ones.   Therefore, the court must take into consideration the actions of the pro se litigant, in context.   In this case, the pro se litigant was diligent and conscientious in attempting to resolve this matter.   The pro se litigant in this case filed the proper motion with the court to open the judgment and extend the Law Day. Additionally, in this matter, unlike in certain other types of cases, the pro se litigant had several interactions with legally trained individuals which led him to believe that nothing substantive was going to happen on August 16, 2010..  FN2. The court is well aware that, by law, self-represented parties are held to the same standards as those who are represented by counsel.   However, resolution of this matter requires a determination of the equitable issues, as well-as the strictly “legal” and “procedural” ones.   Therefore, the court must take into consideration the actions of the pro se litigant, in context.   In this case, the pro se litigant was diligent and conscientious in attempting to resolve this matter.   The pro se litigant in this case filed the proper motion with the court to open the judgment and extend the Law Day. Additionally, in this matter, unlike in certain other types of cases, the pro se litigant had several interactions with legally trained individuals which led him to believe that nothing substantive was going to happen on August 16, 2010.

Robinson, Angela C., J.