LLC v. James P. Zucca et al. (2013)

RULING ON DEFENDANT'S MOTION TO REOPEN DEFAULT AND JUDGMENT OF FORECLOSURE (# 133)

Defendant James P. Zucca (“Zucca”) moved to “reopen” a default and set aside a judgment of strict foreclosure.   The plaintiff ¹ opposes the motion.   The parties came before the court and were heard at short calendar on November 18, 2013.   The motion to set aside the default is denied.   The motion to open the judgment of default is also denied.

I

FACTS

The plaintiff filed its foreclosure complaint on February 4, 2010.   The complaint alleged, inter alia, that Zucca was in default on a loan taken in 2006 in the amount of $340,160, and that the loan was secured by a mortgage on Zucca's property located at 95 Newton Road in Litchfield, Connecticut.   The return of service indicates that, on February 2, 2010, Timothy J. Bennett, a Connecticut State Marshal of Hartford County, served the complaint by United States mail, certified and return receipt requested, on defendant Discover Bank. The return represents that the mailing took place in Wethersfield, Connecticut.   It also represents that the marshal made abode service on defendant James P. Zucca at 95 Newton Road, Northfield, Connecticut.²

Zucca did not appear in response to the complaint, and, on August 5, 2013, the plaintiff moved to default Zucca for his failure to appear.   The court granted that motion on August 15, 2013.   On October 7, 2013, the court entered an order of strict foreclosure, finding the debt to be $444,755.99 and the fair market value of the property to be $312,000.

On October 29, 2013, counsel for Zucca filed an appearance on his behalf.   Zucca filed the instant motion on November 6, 2013.   The plaintiff filed its objection on November 8, 2013.

II

DISCUSSIONAMotion to Set Aside Default

Zucca failed to provide any authority to support his position that a court is authorized to “reopen” a default for failure to appear after the entry of judgment.   In actuality, Practice Book § 3–2 provides in relevant part that “[a]fter the writ has been filed the attorney for any party ․ may enter his ․ appearance in writing ․ [A]n appearance for a party in a civil ․ case should be filed on or before the second day following the return day.   Appearances filed thereafter ․ shall be accepted but an appearance for a party after the entry against such party of a ․ judgment after default for failure to appear shall not affect ․ any judgment after default.”

The motion to “reopen” the default is denied.

BMotion to Set Aside the Judgment

Practice Book § 17–43(a) provides in relevant part that “[a]ny judgment rendered ․ upon a default ․ may be set aside within four months succeeding the date on which notice was sent, and the case reinstated on the docket on such terms in respect to costs as the judicial authority deems reasonable, upon the written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of such judgment ․ and that the ․ defendant was prevented by mistake, accident or other reasonable cause from prosecuting or appearing to make the same.   Such written motion shall be verified by the oath of the complainant or the complainant's attorney, shall state in general terms the nature of the claim or defense and shall particularly set forth the reasons why the ․ defendant failed to appear.”

In the present case, Zucca acknowledges that the “documents commencing the action” were served upon him on February 2, 2010.   He claims that he “did not retain council [sic] in this action based upon the representation of the plaintiff that the [short sale] program in which he was participating would avoid foreclosure.”   He also claims:  1) that the marshal, a state marshal for Hartford County, was not authorized to make service in Litchfield County;  2) that the property is improperly described in the note and mortgage as 95 Newton Road, Thomaston, Connecticut, whereas the property is located in the Northfield section of Litchfield;  and 3) that the plaintiff's affidavit of compliance with the Emergency Mortgage Assistance Program (“EMAP”) was defective in that it was mailed to the wrong address, 95 Newton Road, Thomaston, Connecticut.

Zucca filed an affidavit in support of his motion, acknowledging, inter alia, that due to “business reversals and loss of income” he “fell behind” on his mortgage payments in 2009;  that the foreclosure action against him commenced in January 2010;  and that, after being served with the foreclosure documents, he did not retain counsel but instead discussed foreclosure options with his lender.   Zucca asserts that he participated in different programs with Chase Home Finance, LLC and claims that “based upon representations of the lender I believed my foreclosure was on hold and that I was participating in the ․ short sale program, when I received notice that a judgment of foreclosure had been entered against me.”   Zucca claims that he did not defend the foreclosure “because of assurances I received that I was enrolled in a program to avoid foreclosure.”   Zucca states that he retained counsel in October 2013, and requests that the judgment be reopened and that he be permitted to participate in the court's mediation program.

Notably, Zucca fails to explain why he did not file an appearance for three and one-half years, despite that fact that the complaint served upon him was accompanied with a notice, pursuant to General Statutes § 49–31d et seq., advising him that, if he was unemployed or underemployed, he could make application to the court for relief from foreclosure.   Furthermore, even though the plaintiff addressed the September 5, 2013 motion for default for failure to appear to Zucca's home address, Zucca still did not file an appearance until after the entry of the judgment of foreclosure in October 2013.

Nonetheless, the court will address Zucca's specific claims, seriatim.   The court turns, first, to Zucca's claim that the marshal was not authorized to make service in Litchfield.   Zucca did not cite to any authority in support of the latter proposition.³  The resolution of this issue involves a two-step analysis.

General Statutes § 33–929(b) permits service upon a foreign corporation “by registered or certified mail, return receipt requested, addressed to the secretary of the foreign corporation at its principal office shown in its application for a certificate of authority or in its most recent annual report ․” The marshal's return makes clear that he relied upon the foregoing statute in order to make service upon co-defendant Discover Bank. The marshal represents, in his return, that he made service by mail at Wethersfield, Connecticut.   Zucca makes no challenge to the manner in which the marshal served Discover Bank. Indeed, Zucca fails to acknowledge that the foregoing events took place.

General Statutes § 52–56(a) provides in relevant part that “[i]f any officer has commenced the service of any civil process within his precinct, he may ․ serve the process upon ․ any defendant named in the process outside of his precinct.”   The foregoing procedure is reflected in the marshal's return and so establishes that Zucca's claim of improper service is without merit.

Zucca's second claim is that the property is improperly described in the note and mortgage as being located in Thomaston, Connecticut rather than Litchfield, Connecticut.   On October 24, 2013, the plaintiff moved to reopen the judgment nunc pro tunc to correct the allegations of count one of the complaint which had alleged that the property was located at 95 Newton Road, Thomaston when, in fact, the property is located at 95 Newton Road, in Litchfield.   On November 20, 2013, the court granted the motion to reopen to correct the scrivener's error, but did not grant the motion nunc pro tunc.   Instead, the court ordered that the matter be continued so that it could be reclaimed to the short calendar for the purpose of setting a new law day.   Thus, the issue of the scrivener's error has been addressed, and Zucca's argument is moot.

Zucca's third claim is that the affidavit of compliance with the EMAP notice was defective because it was mailed to the wrong address.   Zucca is correct that the October 4, 2013 EMAP notice was incorrectly addressed.   However, Zucca was already defaulted when that notice was filed.   Thus, the address error is irrelevant to the question of whether the judgment should be set aside.   Moreover, the court notes that Zucca does not claim, in either his motion or his supporting affidavit, that he did not receive the EMAP notice.

Zucca's final claim is that, at the time the judgment of default entered, he was participating in a short sale program offered by the plaintiff.   Zucca attached to his affidavit an August 1, 2012 letter from the plaintiff inviting Zucca to participate in a short sale program.   Zucca contends that his participation in that program barred the entry of judgment of foreclosure some fifteen months later.   The court has reviewed the letter and determined that the letter is a conditional offer to participate in the plaintiff's short sale program.   It is not a promise to forego proceeding with the plaintiff's pending foreclosure action.⁴  Moreover, Zucca represents that the property “has been actively marketed” since August 2012, but does not represent that he has ever presented a short sale offer to the plaintiff.

Practice Book § 17–43(a) provides in relevant part that a “judgment rendered ․ upon a default ․ may be set aside within four months succeeding the date on which notice was sent, and the case reinstated on the docket ․ upon the written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of such judgment ․ and that ․ the defendant was prevented by mistake, accident or other reasonable cause from ․ appearing to make the same.”   In the present case, Zucca has not asserted that any defense existed at the time of judgment, nor has he shown that he was prevented by “mistake, accident or other reasonable cause” from filing an appearance, especially after he received the September 5, 2013 motion for default for failure to appear and/or the court's September 12, 2013 ruling, granting that motion.

“Actively marketing” a property for over a year, without presenting any short sale offer to the lending institution, cannot be interpreted as a set of facts that would convince anyone that they need not appear and defend a foreclosure action involving that same property.   See Wells Fargo Bank, N.A. v. Khatun, 146 Conn.App. 618 (2013);  Vertical Lend, Inc. v. Estate of Kaiko, Superior Court, judicial district of Hartford, Docket No. CV–09–6004723–S (June 8, 2011, Aurigemma, J.).

The court concludes that Zucca has not met his burden under Practice Book § 17–43(a).   The motion to reopen is denied.

So ordered.

BY THE COURT,

John A. Danaher III

FOOTNOTES

FN1. On December 3, 2012, this court granted Chase Home Finance, LLC's motion to substitute J.P. Morgan Chase Bank, National Association as party plaintiff..  FN1. On December 3, 2012, this court granted Chase Home Finance, LLC's motion to substitute J.P. Morgan Chase Bank, National Association as party plaintiff.

FN2. The court takes judicial notice of the fact that Northfield is an unincorporated village within the town of Litchfield.   See State v. Powers, 25 Conn. 48, 50 (1856) (courts may take judicial notice of the geographical division of counties and the towns within them)..  FN2. The court takes judicial notice of the fact that Northfield is an unincorporated village within the town of Litchfield.   See State v. Powers, 25 Conn. 48, 50 (1856) (courts may take judicial notice of the geographical division of counties and the towns within them).

FN3. In fact, Zucca did not cite to any authority in support of any of his claims..  FN3. In fact, Zucca did not cite to any authority in support of any of his claims.

FN4. The letter states, e.g., “[i]t may still be possible to sell your home for less than the amount you owe.   If we agree on a lower sale price and a few other terms—and you sell your house for that amount before foreclosure—you will get $35,000.”   Indeed, a fair reading of the letter is that Zucca was on notice that the foreclosure proceeding would move forward, since it exhorted him to sell the house “before foreclosure.”.  FN4. The letter states, e.g., “[i]t may still be possible to sell your home for less than the amount you owe.   If we agree on a lower sale price and a few other terms—and you sell your house for that amount before foreclosure—you will get $35,000.”   Indeed, a fair reading of the letter is that Zucca was on notice that the foreclosure proceeding would move forward, since it exhorted him to sell the house “before foreclosure.”

Danaher, John A., J.