CitiMortgage, Inc. v. Raymond McLaughlin et al. (2014)

MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION FOR TERMINATION OF APPELLATE COURT STAY

This case is a foreclosure action filed in 2011 by the plaintiff, CitiMortgage, Inc., seeking to foreclose on a mortgage deed on property known as 36 Heather Drive, East Hartford, Connecticut.   The record shows that judgment was rendered in favor of the plaintiff on December 31, 2012, setting the first law day for the holders of the equity of redemption, the defendants, Raymond and Nicole McLaughlin, for February 11, 2013.   The defendants appealed.   AC No 35404.   An automatic stay arose on that appeal.   This court terminated that automatic stay after hearing, and on review, the defendants' request to have that order vacated was denied by the Appellate Court on June 20, 2013.   Doc. No. 314.50.   The defendants' appeal was subsequently dismissed on September 5, 2013.   See Doc. No. 327.10.   After the automatic stay was terminated and the termination was upheld on appeal, the plaintiff moved for an order resetting the law days Doc. No. 319.00.   On September 3, 2013 after hearing, this court granted the plaintiff's motion and set October 28, 2013, as the first law day for the defendants.   Doc. No. 319.86.   The court also denied the defendants' motions to open judgment, Doc. Nos. 329.00 and 343.00, and denied their motions to reargue, Doc. Nos. 337.00, 338.00, 339.00, 340.00 and 342.00.   Next, the defendants appealed, again.   AC 36222.   Presently before the court is the plaintiff's second motion to terminate the automatic appellate court stay.   Assuming, arguendo, that there is an automatic stay preventing the foreclosure, for the following reasons, the motion is granted.   The stay is ordered terminated.

I

With regard to stays pending appeal, the Rules of Appellate Procedure provide, in pertinent part, as follows:

If the judge who tried the case is of the opinion that (1) the appeal is taken ․ only for delay or (2) the due administration of justice so requires, the judge may at any time, upon motion or sua sponte, order that the stay be terminated.   Whether acting on a motion of a party or sua sponte, the judge shall hold a hearing prior to terminating the stay.

Rules of Appellate Procedure § 61–11(d).

Also, stays during foreclosures are guided by the familiar “balancing of the equities” test, which requires evaluation of the relative harms and includes consideration of factors such as (1) the likelihood that the appellant will prevail;  (2) the irreparability of the injury to be suffered from immediate implementation of the judgment;  (3) the effect of a stay upon other parties to the proceeding;  and (4) the public interest involved.   See Connecticut Bank & Trust Co. v. Winters, 26 Conn.App. 317, 320, 600 A.2d 1046 (1991), remanded for articulation on other grounds, 225 Conn. 146, 622 A.2d 536 (1993) and Ameriquest Mortgage Co. v. DeLulio, Superior Court, judicial district of New London, Doc. No. CV 04–0569629 (December 23, 2008, Devine, J.) citing Griffin Hospital v. Commission on Hospitals & Health Care, 196 Conn. 451, 456–59, 493 A.2d 229 (1985).

II

The undersigned conducted a hearing on Plaintiff's Motion to Terminate Stay on January 13, 2013.   The plaintiff's counsel attended and argued.   The defendants did not attend, but they did file a “Notice and Admissions Statement” indicating their refusal to attend and declaring their opposition to the proceedings for reasons not clear or cognizable in law.

As previously and repeatedly found, the record, evidence and totality of the circumstances persuade the court that the plaintiff had standing, established a prima facie case, and the defendants' defenses were not viable as a matter of substantive and procedural law.

Under the Griffin Hospital tests, the court believes a termination of the stay should be ordered First, the court believes that it is unlikely that the defendants will prevail on appeal.   While the outcome of litigation can never be accurately predicted, the court's decision to allow the foreclosure was based on a fair preponderance of the evidence and in accordance with procedures prescribed by the statutes and the Practice Book. Also, there is no irreparable injury to the defendants.   They have been in default on their debt since 2009.   In fact, the plaintiff has not received a single payment from the defendants since the loan was originated in March 2009.   Since then, the defendants have, demonstrably, misused the law and the legal process designed for their protection.   Further delay will prejudice the plaintiff and other parties as the debts and expenses in this litigation continue to grow making the property less desirable.   On the other hand, the public interest is served in denying a stay and returning this property to the market for ownership by a potentially viable new owner, thus potentially helping the property value of this parcel and the property values in the neighborhood.

For all of these reasons, the court finds that the appeal was taken solely for the purpose of delay.   The due administration of justice requires termination of the automatic stay.   Therefore, the stay is ordered terminated.

III

For all of the foregoing reasons, the plaintiff's motion is granted, and the automatic stay is terminated.

Robert F. Vacchelli

Judge, Superior Court

Vacchelli, Robert F., J.