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US BANK NATIONAL ASSOCIATION, TRUSTEE v.
BONNIE L. CHRISTOPHERSEN ET AL.
(AC 38914)
DiPentima, C. J., and Kahn and Sullivan, Js.
Syllabus
The plaintiff bank, as trustee, sought to foreclose a mortgage on certain real
property owned by the defendant C. In accordance with an agreement
between the parties in which C agreed to a judgment of strict foreclosure
in exchange for an eight month law day, the court rendered a judgment
of strict foreclosure and set a law day. Thereafter, the law day was
automatically stayed when C filed a bankruptcy petition. Approximately
four months later, the bankruptcy court lifted the stay, and the plaintiff
filed a motion to open and modify the judgment. In its motion, the
plaintiff requested that the court make a new finding of debt, award
the plaintiff additional costs and attorney’s fees, set a new law day and
enter either a judgment of strict foreclosure or a judgment of foreclosure
by sale, whichever it deemed more appropriate. C subsequently filed
four successive motions for a continuance of the hearing on the plaintiff’s
motion to open and modify the judgment, the last of which the court
denied. During the hearing on the plaintiff’s motion, C requested that
the court order a judgment of foreclosure by sale and advised the court
that she would be filing such a motion, which she did that day following
the hearing. In ruling on the plaintiff’s motion, the trial court opened
the judgment and, relying on the plaintiff’s affidavit of debt, rendered
a modified judgment of strict foreclosure with new findings as to addi-
tional debt and a revised fair market value of the subject property. The
court also set a new law day. In reaching its decision, the court found
that approximately $63,000 of equity existed in the property but deter-
mined that it was barred from ordering a judgment of foreclosure by
sale pursuant to the relevant statute (§ 49-15 [b]), which provides that,
following the filing of a bankruptcy petition, a foreclosure judgment is
automatically opened but only with respect to the law day. On C’s appeal
to this court, held:
1. The plaintiff had standing to commence the foreclosure action; the plaintiff
presented evidence, including various documents and an affidavit related
to the assignment of the subject note, that indicated that the note was
endorsed in blank and delivered to the plaintiff prior to the commence-
ment of the action, which constituted prima facie evidence that the
plaintiff was the holder of the note and entitled to enforce it at the time
the action was commenced, and C offered no evidence to rebut the
presumption of the plaintiff’s ownership of the underlying debt.
2. C could not prevail on her claim that the trial court denied her right to
due process and abused its discretion by relying on the plaintiff’s affidavit
of debt in rendering its modified judgment without considering her
written objections, challenges and offers of evidence; the court granted
C three separate continuances, which provided her with ample time to
prepare for the hearing on the plaintiff’s motion to open and modify
the judgment, and gave C a full opportunity to be heard at that hearing,
but C failed to present any evidence that questioned the amount stated
in the plaintiff’s affidavit of debt, and there was no evidence in the record
to establish that the court failed to consider C’s concerns regarding the
amount of debt when it rendered its modified judgment.
3. The trial court did not abuse its discretion in denying C’s fourth motion
for a continuance to allow her more time to complete discovery; in
denying the motion, the court observed that it already had decided the
issues on which C sought discovery and had granted her first three
motions for a continuance, even though the case had been pending for
more than four years, and, therefore, the court properly considered the
age of the case, the accommodations it already had made for C and the
basis on which she sought the continuance.
4. The trial court erred in failing to rule on C’s request for a judgment of
foreclosure by sale, that court having improperly concluded that it lacked
statutory authority to modify the judgment of strict foreclosure: although
the court correctly determined that § 49-15 (b) did not grant it authority
to modify the judgment, it incorrectly determined that no statutory
authority existed to permit it to do so, and because the plaintiff had
filed a motion to open and modify the judgment, which requested the
court to render either a judgment of strict foreclosure or foreclosure
by sale, § 49-15 (a) (1) conferred authority on the court to modify the
judgment, and the court’s failure to entertain the request for a judgment
of foreclosure by sale constituted error; accordingly, because the trial
court failed to take action on C’s motion for a judgment of foreclosure
by sale, the case was remanded to the trial court with direction to rule
on C’s motion.
Argued September 20, 2017—officially released January 30, 2018
Procedural History
Action to foreclose a mortgage on certain of the
named defendant’s real property, and for other relief,
brought to the Superior Court in the judicial district of
Stamford-Norwalk, where the defendant Wells Fargo
Bank, N.A., was defaulted for failure to appear and the
defendant Southern Connecticut Gas Company et al.
were defaulted for failure to plead; thereafter, the court,
Mintz, J., denied the named defendant’s motion to dis-
miss; subsequently, the court, Mintz, J., granted the
plaintiff’s motion for a judgment of strict foreclosure
and rendered judgment thereon; thereafter, the court,
Hon. David R. Tobin, judge trial referee, denied the
named defendant’s motion for a continuance, granted
the plaintiff’s motion to open and modify the judgment
and rendered a modified judgment of strict foreclosure,
from which the named defendant appealed to this court.
Reversed in part; further proceedings.
Bonnie L. Christophersen, self-represented, the
appellant (named defendant).
Jeffrey M. Knickerbocker, for the appellee (plaintiff).
Opinion
KAHN, J. The defendant Bonnie L. Christophersen1
appeals from the judgment of strict foreclosure, ren-
dered in favor of the plaintiff, US Bank National Associ-
ation, as Trustee of Maiden Lane Asset-Backed
Securities I Trust 2008-1. On appeal, the defendant
claims that (1) the plaintiff lacked standing to bring the
foreclosure action, (2) the court improperly failed to
consider the defendant’s concerns regarding the
amount of debt, (3) the court abused its discretion in
denying her motion for a continuance, and (4) the court
abused its discretion in ordering a judgment of strict
foreclosure rather than a foreclosure by sale. We affirm
in part and reverse in part the judgment of the trial court.
The following facts and procedural history are rele-
vant to our resolution of this appeal. On July, 11 2003,
the defendant secured a promissory note in the amount
of $460,000 by a mortgage on premises known as 2
Woodcock Lane in Westport. As of September, 2008, the
defendant had failed to pay the installments of principal
and interest. In May, 2011, the plaintiff commenced
this action, seeking to foreclose the mortgage on the
defendant’s property.2 The plaintiff subsequently filed
a motion for a judgment of strict foreclosure, to which
the defendant objected.3 On February 21, 2014, the
defendant, who then was represented by counsel,4 filed
an answer and special defenses. The parties later negoti-
ated an agreement that the defendant would accept a
judgment of strict foreclosure in exchange for an eight
month law day. On April 14, 2014, the defendant
informed the court of that agreement and withdrew
both her answer and her objection to the plaintiff’s
motion for a judgment of strict foreclosure. The court
accepted the agreement and, accordingly, granted the
plaintiff’s motion for a judgment of strict foreclosure,
setting a law day of January 6, 2015. On December 24,
2014, the defendant filed a motion to open the judgment
and extend the law day. The court denied the motion
to open but sua sponte set a new law day of March 31,
2015. Just prior to the expiration of the new law day,
on March 27, 2015, the defendant filed a bankruptcy
petition, which resulted in an automatic stay of the
foreclosure proceeding. On August 7, 2015, however,
acting on a motion filed by the plaintiff, the bankruptcy
court lifted the automatic stay.
Following the termination of the bankruptcy stay, the
plaintiff, on October 1, 2015, filed a motion to open and
modify the judgment of strict foreclosure. In its motion,
the plaintiff requested that the court make a new finding
of debt, award the plaintiff additional costs and attor-
ney’s fees, and set a new law day. The defendant filed
four successive motions for a continuance of the hear-
ing on the plaintiff’s motion to open and modify the
judgment. The court, Povodator, J., granted the plain-
tiff’s first three motions for a continuance, and the
court, Hon. David R. Tobin, judge trial referee, denied
the fourth motion for a continuance. On January 19,
2016, following a hearing, Judge Tobin granted the plain-
tiff’s motion to open and rendered a modified judgment
of strict foreclosure with the law days to commence
on March 1, 2016. This appeal followed. Additional facts
and procedural history will be set forth as necessary.
I
The defendant first claims that the plaintiff lacked
standing to bring the foreclosure action. We disagree.
‘‘Standing is the legal right to set judicial machinery
in motion. One cannot rightfully invoke the jurisdiction
of the court unless he [or she] has, in an individual or
representative capacity, some real interest in the cause
of action, or a legal or equitable right, title or interest
in the subject matter of the controversy. . . . [When] a
party is found to lack standing, the court is consequently
without subject matter jurisdiction to determine the
cause. . . . We have long held that because [a] determi-
nation regarding a trial court’s subject matter jurisdic-
tion is a question of law, our review is plenary.’’
(Citation omitted; internal quotation marks omitted.)
Equity One, Inc. v. Shivers, 310 Conn. 119, 125–26, 74
A.3d 1225 (2013).
‘‘Generally, in order to have standing to bring a fore-
closure action the plaintiff must, at the time the action
is commenced, be entitled to enforce the promissory
note that is secured by the property. . . . Whether a
party is entitled to enforce a promissory note is deter-
mined by the provisions of the Uniform Commercial
Code, as codified in General Statutes § 42a-1-101 et seq.
. . . Under [the Uniform Commercial Code], only a
holder of an instrument or someone who has the rights
of a holder is entitled to enforce the instrument. . . .
‘‘The plaintiff’s possession of a note endorsed in blank
is prima facie evidence that it is a holder and is entitled
to enforce the note, thereby conferring standing to com-
mence a foreclosure action. . . . After the plaintiff has
presented this prima facie evidence, the burden is on
the defendant to impeach the validity of [the] evidence
that [the plaintiff] possessed the note at the time that
it commenced the . . . action or to rebut the presump-
tion that [the plaintiff] owns the underlying debt . . . .
The defendant [must] . . . prove the facts which limit
or change the plaintiff’s rights.’’ (Citations omitted;
emphasis in original; internal quotation marks omitted.)
Deutsche Bank National Trust Co. v. Bliss, 159 Conn.
App. 483, 488–89, 124 A.3d 890, cert. denied, 320 Conn.
903, 127 A.3d 186 (2015), cert. denied, U.S. , 136
S. Ct. 2466, 195 L. Ed. 2d 801 (2016).
The trial court had before it evidence that, as of the
time of the commencement of the foreclosure action
in May, 2011, the plaintiff was the holder of the note
endorsed in blank by virtue of an assignment. In a
motion to substitute filed on January 16, 2013, the plain-
tiff attached documents detailing a chain of assign-
ments, including: (1) an assignment of the mortgage
deed, executed by the defendant, from Wells Fargo
Bank, N.A., successor by merger to Wells Fargo Home
Mortgage, Inc., to EMC Mortgage Corporation on Janu-
ary 18, 2007; (2) an assignment of the mortgage from
EMC Mortgage Corporation to the plaintiff on Decem-
ber 12, 2008; (3) an assignment of the mortgage deed
from the plaintiff to Kondaur Capital Corporation in
December, 2011; and (4) an assignment of the mortgage
deed from Kondaur Capital Corporation back to the
plaintiff on September 12, 2012.5 At a hearing on August
20, 2012, the plaintiff submitted an affidavit of an
employee of Nationstar Mortgage, LLC, the mortgage
loan servicer from July, 2010 to October, 2011, which
stated that the promissory note reflected that on July 11,
2003, the defendant owed Wells Fargo Home Mortgage,
Inc., $460,000. The note was endorsed in blank and
delivered to the plaintiff on or before July 7, 2010. The
assignment of the note to the plaintiff and the plaintiff’s
possession of it at the commencement of the foreclo-
sure action was prima facie evidence that the plaintiff
was the holder of the note at the relevant time and thus
was entitled to enforce the note.
The defendant offered no evidence to rebut this pre-
sumption of ownership of the underlying debt. See
HSBC Bank USA, N.A. v. Navin, 129 Conn. App. 707,
711–12, 22 A.3d 647, cert. denied, 302 Conn. 948, 31
A.3d 384 (2011) (plaintiff had standing to commence
foreclosure action where defendant offered no evidence
contesting plaintiff’s affidavit asserting that note
endorsed in blank was delivered to plaintiff prior to
commencement of action). The plaintiff, as assignee of
the mortgage, was entitled to bring the action in its
own name. ‘‘General Statutes § 52-118 . . . provides in
relevant part that [an] assignee . . . may sue . . . in
his own name. . . . The legislature’s use of the word
may in the statute indicates that an assignee merely
has the option to sue in [its] name. Conversely . . . an
assignee also has the option to maintain [an] action in
the name of his assignor.’’ (Internal quotation marks
omitted.) Dime Savings Bank of Wallingford v. Arpaia,
55 Conn. App. 180, 184, 738 A.2d 715 (1999). We con-
clude, therefore, that the plaintiff had standing to com-
mence the foreclosure action.
II
The defendant next claims that the court denied her
right to due process and abused its discretion when it
relied on the plaintiff’s affidavit of debt in rendering its
modified judgment of strict foreclosure without consid-
ering her oral and written objections, challenges, and
offers of evidence. We disagree and, accordingly, con-
clude that the defendant’s due process rights were not
denied and the court did not abuse its discretion when
it relied on the plaintiff’s affidavit of debt.
The defendant cannot prevail on her due process
claim. ‘‘[T]here is no violation of due process when a
party in interest is given the opportunity at a meaningful
time for a court hearing to litigate the question [at
issue].’’ Hartford Federal Savings & Loan Assn. v.
Tucker, 196 Conn. 172, 176–77, 491 A.2d 1084, cert.
denied, 474 U.S. 920, 106 S. Ct. 250, 88 L. Ed. 2d 258
(1985). The defendant had notice and ample time to
prepare for the hearing. After the automatic stay was
lifted, the defendant filed three motions for a continu-
ance—on November 25 and December 10, 2015, and
January 6, 2016—all of which the court granted. After
granting the three separate continuances, the court gave
the defendant a full opportunity to be heard at the
January 19, 2016 hearing where she raised numerous
concerns and objections.
We are also mindful of the principle that ‘‘[w]ithout
some evidence to the contrary, we will not presume
that the trial court improperly applied the law.’’ Farrell
v. Farrell, 36 Conn. App. 305, 313, 650 A.2d 608 (1994).
Tellingly, the defendant failed to present any evidence
at the hearing on her motion—notwithstanding the pas-
sage of five months following the lift of the automatic
stay—that called into question the amount stated in the
plaintiff’s affidavit of debt, and the court expressly gave
her an opportunity to do so. That is, during the hearing,
the court asked the defendant, ‘‘Do you have a calcula-
tion of what you believe the debt to be?’’ The defendant
responded that she was not prepared to answer that
question. Finally, our review confirms that there is no
evidence in the record, and the defendant directs us to
none, to establish that the court failed to consider the
defendant’s concerns regarding the amount of debt
when the court opened the judgment and rendered a
modified judgment of strict foreclosure.
III
The defendant next claims that the court abused its
discretion in denying her fourth motion for a continu-
ance to allow her more time to complete discovery.6
We disagree.
‘‘The trial court has a responsibility to avoid unneces-
sary interruptions, to maintain the orderly procedure
of the court docket, and to prevent any interference
with the fair administration of justice. . . . In addition,
matters involving judicial economy, docket manage-
ment [and control of] courtroom proceedings . . . are
particularly within the province of a trial court. . . .
Accordingly, [a] trial court holds broad discretion in
granting or denying a motion for a continuance. Appel-
late review of a trial court’s denial of a motion for
a continuance is governed by an abuse of discretion
standard that, although not unreviewable, affords the
trial court broad discretion in matters of continuances.’’
(Citations omitted; internal quotation marks omitted.)
Peatie v. Wal-Mart Stores, Inc., 112 Conn. App. 8, 12,
961 A.2d 1016 (2009).
For two reasons, the trial court’s denial of the fourth
motion for a continuance was well within its broad
discretion. First, as the court observed when it rendered
its oral decision denying the continuance during the
January 19, 2016 hearing, it already had decided the
issues on which the defendant sought discovery. Sec-
ond, as we have noted in this opinion, the court already
had granted the defendant’s first three motions for a
continuance, even though the case had been pending
for more than four years. In denying the continuance,
the court properly considered the age of the case, the
accommodations it already had made for the defendant
and the basis on which the defendant sought the fourth
continuance. We therefore conclude that the court did
not abuse its discretion in denying the defendant’s
motion. See id., 13 (‘‘[s]ince the trial court had already
granted one continuance, we find no abuse of discretion
in the court’s refusal to grant the [party’s] motion for
a further continuance’’); see also State v. Yednock, 14
Conn. App. 333, 344–45, 541 A.2d 887 (1988).
IV
The defendant’s final claim is that because the trial
court found that there was approximately $63,000 of
equity in the property, the court abused its discretion
when, on January 19, 2016, it ordered a judgment of
strict foreclosure instead of a foreclosure by sale. Fol-
lowing oral argument, this court sua sponte ordered
the parties to submit supplemental briefs addressing
the related issue of whether the trial court’s refusal to
entertain the defendant’s ‘‘request for the entry of a
foreclosure by sale violated the provisions of [General
Statutes] § 49-15 or was based on an erroneous applica-
tion of . . . § 49-15.’’7 We conclude that, under the facts
of the present case, the trial court incorrectly interpre-
ted § 49-15 to deprive the court of the authority to order
a foreclosure by sale. Because the court’s incorrect
application of § 49-15 prevented the court from exercis-
ing its authority, we remand the case to the trial court
with direction to rule on the defendant’s motion for a
judgment of foreclosure by sale. See footnote 9 of this
opinion. The question of whether the court’s factual
finding regarding the equity in the property required it
to order a judgment of foreclosure by sale may arise
on remand. We therefore address that issue. We con-
clude that in circumstances where a court finds that
the value of the property substantially exceeds the mort-
gage being foreclosed, a judgment of strict foreclosure
would give the plaintiff an improper windfall. See
Brann v. Savides, 48 Conn. App. 807, 812, 712 A.2d
963 (1998).
The following additional facts and procedural history
are relevant to our resolution of this issue. At the Janu-
ary 19, 2016 hearing on the plaintiff’s motion to open
and modify the 2014 judgment of strict foreclosure, the
court began by observing that the judgment, which had
been predicated on an eight month law day, had been
rendered irrelevant due to the passage of four months
during the automatic bankruptcy stay. Therefore, the
court reasoned, it was proper to grant the motion to
open.
The plaintiff contended that under § 49-15 (b) every-
thing with respect to that judgment remained in place
and the court could only reset the law days. The court
reminded the plaintiff that its motion requested greater
relief than simply the reentry of the original judgment
of strict foreclosure and the resetting of the law days.
The court next turned to the question of determining
the amount of the debt. The plaintiff urged the court
to rely on its most recent affidavit of debt, dated January
13, 2016. Prior to rendering a modified judgment, the
court questioned its authority to modify the judgment
by awarding additional fees and costs. In its remarks
to counsel, the court indicated that it believed that the
scope of its authority to act on the plaintiff’s motion
to open the judgment of strict foreclosure was governed
by § 49-15 (b). The court further questioned whether
that statutory provision granted the court the authority
to take any action other than opening the judgment and
setting new law days. The plaintiff suggested that the
court did have such authority, pursuant to paragraph
F of the Uniform Foreclosure Standing Orders issued
by the Superior Court.8 The court expressed skepticism
that a standing order of the Superior Court could grant
the court greater authority than contemplated by the
General Statutes. Nonetheless, the court accepted the
plaintiff’s argument and its affidavit of debt. The court
then rendered a modified judgment of strict foreclosure
with new findings as to additional debt and a revised
fair market value of the property.
Although the court already had taken action on the
motion to open that went beyond merely setting a new
law day, it determined that § 49-15 (b) barred it from
ordering a judgment of foreclosure by sale. Specifically,
when the defendant asked whether the court would
order a foreclosure by sale, the court stated: ‘‘No, this
is a law day, a law day. I cannot grant a motion for
foreclosure by sale at this point because the statute
precludes me from entertaining that. I can only deal
with the motion—the matter that the statute allows
me to which is to reset the law day.’’9 (Emphasis added.)
At the close of the hearing, the court set a law day of
March 1, 2016.
We first address the question of whether the trial
court properly concluded that it lacked authority pursu-
ant to § 49-15 (b) to order a judgment of foreclosure
by sale. In general, the court enjoys broad discretion
in determining whether to order a judgment of foreclo-
sure by sale or a judgment of strict foreclosure. Our
Supreme Court has explained: ‘‘In a foreclosure pro-
ceeding the authority of the trial court to order either
a strict foreclosure or a foreclosure by sale is clear.
General Statutes § 49-24 provides: All liens and mort-
gages affecting real property may, on the written motion
of any party to any suit relating thereto, be foreclosed
by a decree of sale instead of a strict foreclosure at the
discretion of the court before which the foreclosure
proceedings are pending. In interpreting this statute,
we have stated that [i]n Connecticut, the law is well
settled that whether a mortgage is to be foreclosed by
sale or by strict foreclosure is a matter within the sound
discretion of the trial court. . . . The foreclosure of a
mortgage by sale is not a matter of right, but rests in
the discretion of the court before which the foreclosure
proceedings are pending.’’ (Citations omitted; internal
quotation marks omitted.) Fidelity Trust Co. v. Irick,
206 Conn. 484, 488, 538 A.2d 1027 (1988).
The trial court was correct that § 49-15 (b) does not
grant the court authority to modify a judgment of strict
foreclosure. Specifically, § 49-15 (b) provides that when
a mortgagor files a bankruptcy petition under title 11
of the United States Code, any existing judgment of
strict foreclosure ‘‘shall be opened automatically with-
out action by any party or the court, provided, the
provisions of such judgment, other than the establish-
ment of law days, shall not be set aside under this
subsection . . . .’’ See footnote 7 of this opinion.
The trial court incorrectly concluded, however, that
merely because § 49-15 (b) does not grant the court
authority to modify the judgment, no statutory authority
existed to allow the court to do so. This court has
explained that, ‘‘[b]y its express terms, subsection (b)
of § 49-15 governs what occurs automatically following
the filing of a bankruptcy petition: the judgment is
opened, but only with respect to the law day. It does
not refer to how a plaintiff may request the court [not
only to] reset the law day [but also] reenter [a modified]
judgment of strict foreclosure following the dismissal
or discharge of the bankruptcy.
‘‘In order to have the court reset the law day and
reenter [a modified] judgment of strict foreclosure, a
plaintiff must comply with subsection (a) (1) of § 49-
15.’’ (Emphasis added.) U.S. Bank, N.A., Trustee v. Mor-
awska, 165 Conn. App. 421, 426–27, 139 A.3d 747 (2016).
Because the plaintiff filed a motion to open and modify
the judgment of strict foreclosure, § 49-15 (a) (1) con-
ferred authority on the trial court to modify the judg-
ment. In fact, the plaintiff’s motion contained, among
the relief sought, a request to enter either a judgment
of strict foreclosure or foreclosure by sale, whichever
the court deemed appropriate. The plaintiff’s motion
recognized the court’s authority to modify the judgment
and, within its discretion, to order a foreclosure by
sale. Accordingly, the court had authority to order a
judgment of foreclosure by sale.
The court’s failure to entertain the request for a judg-
ment of foreclosure by sale constituted error. ‘‘[I]n a
case in which the court has discretion to act, but fails
to exercise its discretion, that failure alone is error.’’
Meadowbrook Center, Inc. v. Buchman, 169 Conn. App.
527, 534, 151 A.3d 404 (2016), cert. granted on other
grounds, 324 Conn. 918, 154 A.3d 1007 (2017); see also
State v. Lee, 229 Conn. 60, 73–74, 640 A.2d 553 (1994)
(‘‘[i]n the discretionary realm, it is improper for the trial
court to fail to exercise its discretion’’). As we have
explained, because the trial court failed to take action
on the defendant’s motion for a judgment of foreclosure
by sale on the basis of its incorrect application of § 49-
15 (b), we remand the case to the trial court with direc-
tion to rule on the motion.
Finally, because the issue may likely arise on remand,
we consider the implications of the trial court’s finding
on January 19, 2016, that approximately $63,000 of
equity existed in the property. Specifically, in light of
that finding, the court’s order of a judgment of strict
foreclosure would appear to give the plaintiff an
improper windfall. ‘‘Since a mortgage foreclosure is an
equitable proceeding, either a forfeiture or a windfall
should be avoided if possible.’’ (Internal quotation
marks omitted.) Brann v. Savides, supra, 48 Conn. App.
811–12. Even if the defendant did not have equity in the
property herself, our case law is clear that the governing
principle is that ‘‘a mortgagee is only entitled to the
payment of the debt owing him, including such inciden-
tal charges as he may add to it . . . .’’ (Internal quota-
tion marks omitted.) Fidelity Trust Co. v. Irick, supra,
206 Conn. 489. Accordingly, we have recognized that
‘‘when the value of the property substantially exceeds
the value of the lien being foreclosed, the trial court
abuses its discretion when it refuses to order a foreclo-
sure by sale.’’ (Internal quotation marks omitted.)
Brann v. Savides, supra, 812; see also Fidelity Trust Co.
v. Irick, supra, 491 (court abused discretion in ordering
strict foreclosure rather than foreclosure by sale where
fair market value exceeded debt).
The judgment is reversed with respect to the order of
strict foreclosure and the case is remanded for further
proceedings consistent with this opinion; the judgment
is affirmed in all other respects.
In this opinion the other judges concurred.
1
The complaint also named as defendants Wells Fargo Bank, N.A., South-
ern Connecticut Gas Company, and Gordon & Scalo, but they were defaulted
for failure to appear or plead. The trial court permitted John R. Christo-
phersen, both individually and as trustee, Richard J. Margenot, successor
trustee, and Theodore A. Youngling, successor trustee, to intervene as defen-
dants. The court, however, subsequently granted the plaintiff’s motion for
default as to the intervening defendants for their failure to disclose a defense.
Bonnie Christophersen, representing herself, filed this appeal and will be
referred to in this opinion as the defendant.
2
The plaintiff filed five motions to substitute Kondaur Capital Corporation
(Kondaur) as the plaintiff, all of which the court, Mintz, J., denied. In May,
2012, the defendant filed a motion to dismiss claiming that the plaintiff
lacked standing because Kondaur was the party entitled to enforce the note.
The court denied the motion to dismiss.
3
At the time that the defendant filed her objection to the motion for a
judgment of strict foreclosure, she had been defaulted for failure to plead.
Along with her objection, she filed a motion seeking to open the default
that had been entered against her. On April 14, 2014, the parties requested
that the court vacate its existing orders, including the order defaulting the
defendant. The court vacated those orders, and the defendant subsequently
withdrew both her objection to the plaintiff’s motion for a judgment of strict
foreclosure and her motion to open the default.
4
On September 2, 2014, the court granted the motion of the defendant’s
counsel to withdraw his appearance. Thereafter, the defendant repre-
sented herself.
5
Additionally, attached to the motion for relief from automatic stay, which
was filed in bankruptcy court, was the original note and subsequent assign-
ments, including the 2008 assignment to the plaintiff. See Drabik v. East
Lyme, 234 Conn. 390, 398, 662 A.2d 118 (1995) (‘‘[t]here is no question that
the trial court may take judicial notice of the file in another case, whether
or not the other case is between the same parties’’ [internal quotation
marks omitted]).
6
The defendant also claims that the denial of her fourth motion for a
continuance violated her right to due process. ‘‘Ordinarily, a reviewing court
analyzes a denial of a motion for a continuance in terms of whether the trial
court abused its discretion. If, however, the refusal to grant a continuance
interferes with a specific constitutional right, the analysis will involve
whether there has been a denial of due process. . . . [W]hen an act is
shown by reliable facts to affect a specific constitutional right . . . the
analysis should turn on whether a due process violation exists rather than
whether there has been an abuse of discretion.’’ (Citations omitted; internal
quotation marks omitted.) Tyler v. Shenkman-Tyler, 115 Conn. App. 521,
525, 973 A.2d 163, cert. denied, 293 Conn. 920, 979 A.2d 493 (2009). The
defendant has not identified any specific constitutional right that was impli-
cated by the court’s denial of the motion for a continuance. As such, we
will review this claim under an abuse of discretion standard.
7
General Statutes § 49-15 provides in relevant part: ‘‘(a) (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 encum-
brancer except as provided in subdivision (2) of this subsection. . . .
‘‘(b) Upon the filing of a bankruptcy petition by a mortgagor under Title
11 of the United States Code, any judgment against the mortgagor foreclosing
the title to real estate by strict foreclosure shall be opened automatically
without action by any party or the court, provided, the provisions of such
judgment, other than the establishment of law days, shall not be set aside
under this subsection, provided no such judgment shall be opened after the
title has become absolute in any encumbrancer or the mortgagee, or any
person claiming under such encumbrancer or mortgagee. The mortgagor
shall file a copy of the bankruptcy petition, or an affidavit setting forth the
date the bankruptcy petition was filed, with the clerk of the court in which
the foreclosure matter is pending. Upon the termination of the automatic
stay authorized pursuant to 11 USC 362, the mortgagor shall file with such
clerk an affidavit setting forth the date the stay was terminated.’’
8
Paragraph F of the Uniform Foreclosure Standing Orders provides: ‘‘At
a hearing on a motion to open judgment after bankruptcy in order to set a
new sale or law date after receiving relief from the automatic bankruptcy
stay, a bankruptcy dismissal or any other bankruptcy order or law that
allows the plaintiff to proceed with its foreclosure action, the plaintiff must
present to the court an updated affidavit of debt that the court will use to
make a new finding of the judgment debt as of the date of the hearing.
Additionally, if the last finding made by the court as to the fair market value
of the premises is more than 120 days old, then the plaintiff must also
present to the court an updated appraisal for the court to make an updated
finding of the fair market value of the premises on the date of the hearing.’’
Uniform Foreclosure Standing Orders, form JD-CV-104, available at http://
jud.ct.gov/webforms/form/cv104.pdf (last visited January 22, 2018).
9
We observe that although the defendant had not filed a motion for a
judgment of foreclosure by sale at the time of the hearing, she advised the
court that she had prepared such a motion and would be filing the motion.
The record reflects that the defendant filed such a motion on that same
day, presumably following the conclusion of the hearing.