Deutsche Bank National Trust Company v. Melissa McKeith (2014)

MEMORANDUM OF DECISION RE MOTION TO OPEN JUDGMENT (# 128)

FACTS

Presently before the court is a motion to open the judgment of strict foreclosure filed by the defendant Melissa McKeith also known as Melissa Hopkins.   The plaintiff, Deutsche Bank National Trust Company as trustee for HSI Asset Securitization Corporation Trust 2005–NC1, Mortgage Pass–Through Certificates, Series 2005–NC1, commenced this present foreclosure action in February 2010.   The plaintiff initiated the present action against the defendants, David McKeith, Melissa McKeith also known as Melissa Hopkins, Foundation Financial Group, and Lawrence & Memorial Hospital.

A judgment of strict foreclosure was entered on July 30, 2012.   The law days commenced on September 18, 2012, and titled vested in the plaintiff on September 21, 2012.   The plaintiff mailed notice of the judgment on August 6, 2012.   Melissa McKeith filed an appearance as a self-represented party on September 24, 2013, and filed her motion to open the judgment of strict foreclosure on September 26, 2013.   The plaintiff filed its objection on October 15, 2013, and the matter was heard at short calendar on October 15, 2013.

DISCUSSION

The court's resolution of the present motion is governed by General Statutes § 49–15.  Section 49–15(a) provides:  “(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, notwithstanding the limitation imposed by section 52–212a, upon such terms as to costs as the court deems reasonable, 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.

“(2) 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 and any person who acquired an interest in the real estate after title became absolute in any encumbrancer, provided (A) such judgment may not be opened more than four months after the date such judgment was entered or more than thirty days after title became absolute in any encumbrancer, whichever is later, and (B) the rights and interests of each party, regardless of whether the party filed an appearance in the action, and any person who acquired an interest in the real estate after title became absolute in any encumbrancer, are restored to the status that existed on the date the judgment was entered.”

“It [is] the defendants' burden to establish the existence of good cause to be entitled to an opening of the judgment pursuant to ․ § 49–15.”   Connecticut National Bank v. Zuckerman, 29 Conn.App. 541, 546, 616 A.2d 814 (1992).  “In Farmers & Mechanics Savings Bank v. Sullivan, 216 Conn. 341, 579 A.2d 1054 (1990), our Supreme Court confirmed the separate standards applicable to opening default judgments, generally, and to opening a judgment of strict foreclosure.   Unlike ․ [General Statutes] § 52–212, which provides for opening default judgments generally and requires a defaulted defendant to show that he had a good defense that he was prevented from making by mistake, accident or other reasonable cause, § 49–15 prescribes only four conditions for opening a judgment of strict foreclosure:  (1) that the motion be in writing;  (2) that the movant be a person having an interest in the property;  (3) that the motion be acted upon before an encumbrancer has acquired title;  and (4) that cause, obviously good cause, be shown for opening the judgment.”   (Internal quotation marks omitted.)  J & F Investment Co., LLC v. Athan, 131 Conn.App. 471, 474–75 n.3, 27 A.3d 415 (2011).  “[T]he presence or absence of a good defense to the original foreclosure judgment, per se, is immaterial to the determination of whether a judgment should be opened under § 49–15.”   (Internal quotation marks omitted.)   LaSalle Bank, N.A. v. Parker, Superior Court, judicial district of New London, Docket No. CV–08–5005347–S (September 26, 2013, Devine, J.).

“It is a general rule that a judgment of strict foreclosure ordinarily cannot be opened after the law day has passed, [unless] the judgment [is] attacked on the ground that the court lacked jurisdiction over the party challenging it ․ Once title has vested, no practical relief is available [p]rovided that this vesting has occurred pursuant to an authorized exercise of jurisdiction by the trial court ․ A natural corollary of this principle is that a judgment of strict foreclosure may be opened only upon a finding that the court lacked jurisdiction over either the person or the case at the time the judgment of strict foreclosure was entered.   Anything less would appear to be in direct contravention of the strictures of § 49–15(a) and our subsequent case law.”  (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Highgate Condominium Assn., Inc. v. Miller, 129 Conn.App. 429, 434–35, 21 A.3d 853 (2011).  “[G]iven the stringent limitations placed on a court's authority to open a judgment of strict foreclosure pursuant to § 49–15(a), it [is] critical for the court to make a definitive factual and legal finding regarding the issue of its personal jurisdiction over the defendant.”   Id., 436.

In the present case, the defendant Melissa McKeith's motion to open the judgment does not fall within the identifiable parameters of § 49–15.   The plaintiff's February 1, 2010 first attempt of service on the McKeiths was properly deemed questionable by the plaintiff.   The plaintiff filed a motion to cite-in additional parties on April 15, 2010, which the court, Devine, J., granted on April 26, 2010.   Also on April 15, 2010, the plaintiff filed an application for first order of notice, seeking an order that notice of the institution of the present action published in The Day newspaper because the whereabouts of the McKeiths was unknown after reasonable efforts were made to obtain such information.   In support of the application, the plaintiff submitted the affidavit of Danielle Milward, a paralegal working in the office of the plaintiff's counsel, who attested to the efforts made to locate the McKeiths and the efforts made to notify the McKeiths regarding the action prior to the action going to judgment.   After the state marshal informed the plaintiff's counsel that the property, which was the subject of the foreclosure action, was abandoned, Milward testified in her affidavit that she conducted several internet searches and contacted the United States Postal Service regarding any forwarding address for the McKeiths.   There was no forwarding address according to Milward's affidavit.

On April 26, 2010, the court, Devine, J., ordered that notice of the institution of the action be published in The Day once a week for two weeks, commencing on or before May 13, 2010.   The plaintiff filed a return of service to the court on May 6, 2010, and on June 10, 2010, the plaintiff filed an affidavit of publication in which Holly Anderson, legal advertising clerk for The Day, attested to the fact that the annexed notice was published in The Day on May 7, 2010, and May 14, 2010.   On July 27, 2010, the court, Martin, J., granted the plaintiff's motion seeking a finding that no further notice was required.   Accordingly, there were clear efforts by the plaintiff to have proper notice carried out.   Therefore, the court will consider the lack of personal jurisdiction argument of Melissa McKeith.

General Statutes § 52–57(a) provides:  “Except as otherwise provided, process in any civil action shall be served by leaving a true and attested copy of it, including the declaration or complaint, with the defendant, or at his usual place of abode, in this state.”  “When jurisdiction is based on personal or abode service, the matters stated in the return, if true, confer jurisdiction unless sufficient evidence is introduced to prove otherwise.”   (Internal quotation marks omitted.)  Jimenez v. DeRosa, 109 Conn.App. 332, 339, 951 A.2d 632 (2008).   There is no dispute in the present case that abode service was not effectuated.

The plaintiff argues that it followed the rules of practice for an order of notice and that Melissa McKeith has not met her burden of establishing lack of service.  General Statutes § 52–68 provides:  “(a) The Superior Court, and the judges, clerks and assistant clerks thereof, may, except where it is otherwise specially provided by law, make such order as is deemed reasonable, in regard to the notice which shall be given of the institution or pendency of all complaints, writs of error and appeals from probate, which may be brought to or pending in the Superior Court, when the adverse party, or any persons so interested therein that they ought to be made parties thereto, reside out of the state, or when the names or residences of any such persons in interest are unknown to the party instituting the proceeding.

“(b) Such notice, having been given and proved by the affidavit of the officer who served the notice or by other competent evidence, shall be deemed sufficient service and notice, and the court may proceed to a hearing, unless otherwise provided by law, or may order further notice as it deems reasonable.”   Additionally, Practice Book § 11–4 provides:  “Applications for orders of notice, whether made to a court, a judge, a clerk, or an assistant clerk, shall be made in writing, shall state the residence of the party whom the notice is sought to reach or that all reasonable efforts have been made to ascertain the residence and have failed, and shall further state what notice is considered most likely to come to the attention of such person, with the reasons therefor, unless they are evident;  and such applications shall become a part of the file of the case.”

In support of her motion to open the judgment of strict foreclosure, Melissa McKeith submitted her affidavit.   The affidavit is neither signed nor sworn to.   Therefore, there is no evidence before the court to dispute the court's jurisdiction over the McKeiths at the time of entering the judgment of strict foreclosure.   Even if these unauthenticated statements were sworn to, they alone do not rebut the matters stated in the marshal's return and affidavits submitted by the plaintiff to obtain an order of notice nor require the court to hold an evidentiary hearing.   Accordingly, the defendant Melissa McKeith has not met her burden of establishing lack of personal jurisdiction, nor good cause why the judgment of strict foreclosure should be opened.   See Connecticut National Bank v. Zuckerman, supra, 29 Conn.App. 546.   The motion to open the judgment of strict foreclosure was filed more than four months after the judgment was entered and more than thirty days after title became absolute in the plaintiff;  see General Statutes § 49–15;  therefore, the court lacks jurisdiction to open to the judgment of strict foreclosure and the motion to open must be dismissed.

CONCLUSION

For the foregoing reasons, the motion to open the judgment of strict foreclosure is dismissed.

Cosgrove, J.

Cosgrove, Emmet L., J.