Bank of America, N.A. v. Robert T. Sistare (2013)

PROCEEDING PENDING DETERMINATION OF MOTION

This action is a foreclosure action that was commenced on December 10, 2010.   The matter went to judgment on June 12, 2012, a judgment of strict foreclosure was entered and law days were assigned.   On July 30, 2012 title vested in the plaintiff's name.   The defendant, seven months later, moved on March 6, 2013 to reopen the judgment of strict foreclosure and for a stay of a summary process action pending before this court until the instant motion to open judgment is decided.

The defendant acknowledges the prohibition contained in General Statutes § 49–15(a)(1) which provides that “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 provides that this strict prohibition against opening a judgment may be avoided if there is an agreement “of each party to the foreclosure action who filed an appearance in the action and any person who acquired an interest in the real estate after title became absolute in any encumbrancer.”   This alternative further provides that the judgment may not be opened more than four months after the date such judgment was entered or more than 30 days after title became absolute in any encumbrancer, whichever is later.

The defendant further argues that if the court determines the default judgment may not be opened that the court should have equitable jurisdiction in the foreclosure action to stay the summary process eviction.   There is no authority for this count to take such a relief.   Defendant has supported this motion with more than 150 pages of documentation.   Much of this documentation includes personal identification numbers and therefore the court has ordered these filings sealed.  (Documents 118, 119 & 121.)

The gravamen of the defendant's motion is that the foreclosing court did not have personal jurisdiction over the defendant and that notices during the course of the litigation were not properly provided to the then non-appearing defendant.   Further, the defendant argues he is entitled to equitable relief because of the conduct of the plaintiff Bank of America which, while the foreclosure was pending, mailed solicitations for mortgage protection and life insurance policies to the defendant.   The defendant claims that the first time that he learned that Bank of America had not abandoned its foreclosure action was when an agent of the Veterans Administration (the entity to whom Bank of American conveyed the property once title vested in it) came to the mortgaged premises and property had been listed for sale by the Veterans Administration.

These assertions of the defendant cannot withstand scrutiny.   The court notes that the defendant does admit to receiving notice of the pendency of this action prior to going to judgment when going through some paperwork located in a part of the premises that was used by his now deceased but then estranged girlfriend.   Defendant further admits that he took certain steps to obtain legal assistance in February of 2011.   He never in fact filed an appearance in this case until March of 2013.

Although the court is sympathetic to the plight of the defendant under the circumstances of this case, it cannot grant the motion to open the judgment.

Cosgrove, J.

Cosgrove, Emmet L., J.