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FEDERAL NATIONAL MORTGAGE ASSOCIATION
v. RICHARD FARINA ET AL.
(AC 39924)
DiPentima, C. J., and Prescott and Elgo, Js.
Syllabus
The plaintiff mortgage company sought, by way of summary process, to gain
possession of certain real property previously owned by the defendant
F. In the underlying residential mortgage foreclosure action, F had
appealed from a judgment of strict foreclosure to this court, which
affirmed the judgment and remanded the case to the trial court for the
purpose of setting new law days. F subsequently filed an amended
motion to vacate the judgment of strict foreclosure, which was treated
as a motion to open the judgment of strict foreclosure and was denied
by the trial court. F appealed from the trial court’s denial of his motion
to open and his motion to reargue, and this court dismissed that second
appeal as frivolous. F subsequently filed a second motion to open and
a motion to dismiss that were both denied by the trial court, which
extended the law days to April 25, 2016. After F appealed to this court
from the trial court’s denial of his motion to dismiss, the plaintiff filed
a motion to dismiss F’s appeal, which this court granted. Subsequently,
the plaintiff commenced the present summary process action. F filed a
motion to dismiss on the ground that the plaintiff lacked standing to
bring the summary process action because it was not the valid title
holder of the subject property. The trial court granted F’s motion to
dismiss and rendered judgment of dismissal, from which the plaintiff
appealed to this court. On appeal, F claimed that dismissal of the sum-
mary process action was proper because, pursuant to the applicable
rule of practice (§ 61-11), an automatic stay of execution of the prior
foreclosure judgment was in place and, thus, the April 25, 2016 law day
passed without effect and title never vested in the plaintiff. The plaintiff
claimed that title properly vested after the running of the law days on
April 25, 2016, as no automatic stay was created by the filing of the
final appeal in the foreclosure action pursuant to § 61-11 (g). Held that
the trial court improperly granted F’s motion to dismiss the summary
process action for lack of standing; F’s claim in the present appeal
regarding the plaintiff’s standing was an impermissible collateral attack
on the judgment in the prior proceeding, as this court previously ren-
dered judgment granting the plaintiff’s motion to dismiss F’s final appeal
of the foreclosure action on the ground that the appeal was moot because
§ 61-11 (g) prevented the automatic stay from going into effect and,
therefore, the law days passed and title of the property had vested
absolutely with the plaintiff, F did not file a petition for certification
with our Supreme Court from that decision, and the plaintiff was entitled
to rely on the finality of the judgment in the underlying foreclosure
action for its standing in the present summary process action.
Argued February 13—officially released June 26, 2018
Procedural History
Summary process action brought to the Superior
Court in the judicial district of New Britain, Housing
Session, where the court, Hon. Henry S. Cohn, judge
trial referee, granted the motions to dismiss filed by
the named defendant et al. and rendered judgment of
dismissal, from which the plaintiff appealed to this
court. Reversed; further proceedings.
Robert J. Wichowski, for the appellant (plaintiff).
William E. Carter, for the appellee (named
defendant).
Opinion
ELGO, J. In this summary process action, the plaintiff,
Federal National Mortgage Association, appeals from
the judgment of dismissal in favor of the defendant
Richard Farina.1 On appeal, the plaintiff claims that the
trial court improperly concluded that it lacked standing
to bring the present action. The plaintiff contends that,
pursuant to a judgment of strict foreclosure, title to the
subject property vested absolutely in the plaintiff on
April 25, 2016, and, therefore, as the owner of the prop-
erty, it had standing to prosecute the summary process
action. The defendant, by contrast, claims that title
never passed to the plaintiff in the foreclosure action
because an appellate stay was in effect that prevented
the law days from passing and, thus, the defendant is
still the title holder of the property. We agree with the
plaintiff and reverse the judgment of the trial court.
The following facts and procedural history are rele-
vant to this appeal. The defendant owned a residential
property known as 100 Town Line Road in Plainville
that was encumbered by a mortgage that had been
assigned to BAC Home Loans Servicing, LP (BAC Home
Loans), by an assignment of mortgage recorded on the
Plainville land records. In July, 2009, BAC Home Loans
brought an action to foreclose on the mortgage due to
the defendant’s failure to meet the payment obligations
on the underlying note. On February 3, 2012, BAC Home
Loans filed a motion for summary judgment, in which
it argued that there were no genuine issues of material
fact regarding the allegations of its complaint and that
it was entitled to judgment as a matter of law. The court
granted that motion and rendered summary judgment
in favor of BAC Home Loans as to liability only on
March 5, 2012. The trial court thereafter granted BAC
Home Loans’ motion to substitute Bank of America,
N.A., as the plaintiff after a merger between BAC Home
Loans and Bank of America, N.A.
On June 19, 2012, Bank of America, N.A., filed a
motion for judgment of strict foreclosure, and the defen-
dant filed an objection to said motion on September
10, 2012. The court granted the motion for a judgment
of strict foreclosure on September 10, 2013, and set law
days to commence on October 7, 2013. On September
16, 2013, the defendant filed his first appeal with this
court, in which he challenged the summary judgment
rendered as to liability and the judgment of strict fore-
closure. This court ultimately affirmed the propriety of
the judgment and remanded the case to the trial court
for the purpose of setting new law days. See BAC Home
Loans Servicing, LP v. Farina, 154 Conn. App. 265,
107 A.3d 972 (2014), cert. denied, 316 Conn. 908, 111
A.3d 884 (2015).
On May 11, 2015, the defendant filed with the trial
court a motion to vacate summary judgment and strict
foreclosure on the basis of newly discovered facts. The
defendant amended the motion to vacate on July 8,
2015, which the court treated as a motion to open. The
court denied that motion on August 3, 2015.
On July 7, 2015, Bank of America, N.A., filed a motion
to open and a motion to substitute the plaintiff as the
plaintiff in the underlying foreclosure action. The court
granted the motions on August 3, 2015.2 On August 13,
2015, the defendant filed a motion to reargue his July
8, 2015 motion to open. On August 14, 2015, the court
denied the defendant’s motion to reargue. The defen-
dant appealed from the court’s denial of the motion to
reargue and the motion to open on September 1, 2015.
On October 28, 2015, this court dismissed the defen-
dant’s second appeal as frivolous. The plaintiff subse-
quently, on November 10, 2015, filed a motion to open
the judgment to reenter judgment after appeal and to
award additional attorney’s fees. The court granted the
motion on December 21, 2015, reentered judgment, and
set new law days to commence on January 25, 2016.
On January 21, 2016, the defendant filed a motion to
open, which was denied by the court on January 25,
2016. In its order, the court set new law days for Febru-
ary 29, 2016. The defendant also filed a motion to dis-
miss, pursuant to Practice Book § 10-30, on January 21,
2016, and attached to said motion was an ‘‘affidavit of
truth’’ signed by the defendant. On February 29, 2016,
the court extended the law days to March 28, 2016, and,
on March 1, 2016, the court denied the defendant’s
motion to dismiss. On March 16, 2016, the defendant
filed a motion to reargue the motion to dismiss, which
the court denied on March 28, 2016, and extended the
law days to April 25, 2016.
On April 15, 2016, the defendant appealed from the
court’s denials of the motion to dismiss and motion to
reargue. On May 4, 2016, the plaintiff moved to dismiss
the defendant’s appeal, arguing that the defendant’s
appeal was ‘‘untimely, as no automatic stay was in effect
pursuant to . . . Practice Book § 61-11 (g). Further,
[the] defendant did not file an affidavit as required by
. . . § 61-11 (g), and therefore no automatic stay was
in effect. For that reason, [the] defendant’s law day
remained April 25, 2016, which has since passed, and
title has vested absolutely in [the] plaintiff. As title
vested absolutely in [the] plaintiff, [this court] is without
jurisdiction to hear [the] defendant’s appeal. [The]
plaintiff filed this motion to dismiss within ten days of
the date on which title vested absolutely in [the] plain-
tiff. In the absence of an actual controversy, the court
should dismiss the appeal.’’ On July 20, 2016, this court
granted the plaintiff’s motion to dismiss the final appeal
of the foreclosure action.3
A certificate of foreclosure was filed on May 6, 2016,
on the Plainville land records. On May 9, 2016, a notice
to vacate pursuant to General Statutes § 49-31p was
sent to the defendant. On August 22, 2016, a notice to
quit was served upon the defendant and the defendant’s
tenants to quit possession on or before August 27, 2016.
On August 31, 2016, the plaintiff commenced this
summary process action. The defendant filed a motion
to dismiss on October 13, 2016, and the plaintiff filed
an objection to the defendant’s motion on October 27,
2016. Following a hearing before the trial court on Octo-
ber 27, 2016, the defendant filed a supplemental memo-
randum, in which he claimed that the plaintiff was not
the valid title holder of the property and, as a result, the
plaintiff lacked standing to bring the summary process
action. In support of its objection to the motion to
dismiss, the plaintiff filed a supplemental brief claiming
that, because this court had dismissed as moot the final
appeal of the foreclosure action, the law days have long
since passed and title properly vested in the plaintiff.
The parties appeared before the court again on Decem-
ber 15, 2016, at which time the court granted the defen-
dant’s motion to dismiss the summary process action
and rendered a judgment of dismissal.4 From that judg-
ment, the plaintiff now appeals.
The sole issue on appeal is whether the trial court
properly granted the defendant’s motion and dismissed
this summary process action. We begin by noting that
‘‘[t]he standard of review for a court’s decision on a
motion to dismiss is well settled. A motion to dismiss
tests, inter alia, whether, on the face of the record, the
court is without jurisdiction. . . . [O]ur review of the
court’s ultimate legal conclusion and resulting [determi-
nation] of the motion to dismiss will be de novo. . . .
When a . . . court decides a jurisdictional question
raised by a pretrial motion to dismiss, it must consider
the allegations of the complaint in their most favorable
light. . . . In this regard, a court must take the facts
to be those alleged in the complaint, including those
facts necessarily implied from the allegations, constru-
ing them in a manner most favorable to the pleader.
. . . The motion to dismiss . . . admits all facts which
are well pleaded, invokes the existing record and must
be decided upon that alone.’’ (Internal quotation marks
omitted.) Gold v. Rowland, 296 Conn. 186, 200–201, 994
A.2d 106 (2010).
The defendant argues that dismissal of this summary
process action was proper because, as provided for in
Practice Book § 61-11 (a),5 an automatic stay of execu-
tion of the prior foreclosure judgment was in place and,
thus, the April 25, 2016 law day passed without effect
and title never vested in the plaintiff. The plaintiff
argues that title properly vested after the running of
the law days on April 25, 2016, as no automatic stay
was created by the filing of the final appeal in the
foreclosure action because of § 61-11 (g).
We begin by noting that, ‘‘[p]rior to October, 2013, a
defendant in a foreclosure action could employ consec-
utive motions to open the judgment in tandem with
Practice Book §§ 61-11 and 61-14 to create almost the
perfect perpetual motion machine. . . . Prior to Octo-
ber, 2013, a court’s denial of a motion to open a judg-
ment of strict foreclosure automatically stayed the
running of the law days until the twenty day period in
which to file an appeal from that ruling had expired,
and, if an appeal was filed, that initial appellate stay
continued until there was a final determination of the
appeal.
‘‘Practice Book § 61-11 was amended effective Octo-
ber 1, 2013 . . . to address this problem by the addition
of subsections (g) and (h).’’ (Citation omitted; internal
quotation marks omitted.) Citigroup Global Markets
Realty Corp. v. Christiansen, 163 Conn. App. 635, 639–
40, 137 A.3d 76 (2016). Practice Book § 61-11 (g) pro-
vides in relevant part: ‘‘In any action for foreclosure in
which the owner of the equity has filed, and the court
has denied, at least two prior motions to open or other
similar motion, no automatic stay shall arise upon the
court’s denial of any subsequent contested motion by
that party, unless the party certifies under oath, in an
affidavit accompanying the motion, that the motion was
filed for good cause arising after the court’s ruling on
the party’s most recent motion. Such affidavit shall
recite the specific facts relied on in support of the
moving party’s claim of good cause. . . .’’
On appeal, the plaintiff seeks reversal of the judgment
dismissing this summary process action for the very
reason that it successfully moved for dismissal of the
final appeal of the foreclosure action. As we noted pre-
viously, we granted the plaintiff’s motion to dismiss the
final appeal of the foreclosure action on July 20, 2016.
By granting the plaintiff’s motion to dismiss, we decided
that the appeal was moot because Practice Book § 61-
11 (g) prevented the automatic stay from going into
effect and, therefore, the law days passed and title of
the property had vested with the plaintiff. The defen-
dant did not file a petition for certification with our
Supreme Court and thus, the judgment was final as
to that action. On appeal, the defendant is essentially
challenging the validity of the judgment in the prior pro-
ceeding.
‘‘[F]inal judgments are . . . presumptively valid
. . . and collateral attacks on their validity are disfa-
vored. . . . The reason for the rule against collateral
attack is well stated in these words: The law aims to
invest judicial transactions with the utmost permanency
consistent with justice. . . . Public policy requires that
a term be put to litigation and that judgments, as solemn
records upon which valuable rights rest, should not
lightly be disturbed or overthrown. . . . [T]he law has
established appropriate proceedings to which a judg-
ment party may always resort when he deems himself
wronged by the court’s decision. . . . If he omits or
neglects to test the soundness of the judgment by these
or other direct methods available for that purpose, he
is in no position to urge its defective or erroneous
character when it is pleaded or produced in evidence
against him in subsequent proceedings. Unless it is
entirely invalid and that fact is disclosed by an inspec-
tion of the record itself the judgment is invulnerable to
indirect assaults upon it.’’ (Citation omitted; emphasis
omitted; internal quotation marks omitted.) Sousa v.
Sousa, 322 Conn. 757, 771, 143 A.3d 578 (2016).
‘‘Unless a litigant can show an absence of subject
matter jurisdiction that makes the prior judgment of a
tribunal entirely invalid, he or she must resort to direct
proceedings to correct perceived wrongs . . . . A col-
lateral attack on a judgment is a procedurally impermis-
sible substitute for an appeal.’’ (Internal quotation
marks omitted.) In re Shamika F., 256 Conn. 383, 407–
408, 773 A.2d 347 (2001).
We recently discussed the importance of the principle
of the finality of judgments in Ruiz v. Victory Proper-
ties, LLC, 180 Conn. App. 818, A.3d (2018).
‘‘Generally, courts recognize a compelling interest in
the finality of judgments which should not lightly be
disregarded. Finality of litigation is essential so that
parties may rely on judgments in ordering their private
affairs and so that the moral force of court judgments
will not be undermined. The law favors finality of judg-
ments . . . . This court has emphasized that due con-
sideration of the finality of judgments is important and
that judgments should only be set aside or opened for
a strong and compelling reason. . . . It is in the interest
of the public as well as that of the parties [that] there
must be fixed a time after the expiration of which the
controversy is to be regarded as settled and the parties
freed of obligation to act further in the matter by virtue
of having been summoned into or having appeared in
the case. . . . Without such a rule, no judgment could
be relied on. . . . [T]he modern law of civil procedure
suggests that even litigation about subject matter juris-
diction should take into account the importance of the
principle of the finality of judgments . . . .’’ (Citations
omitted; internal quotation marks omitted.) Id., 828.
The defendant’s position regarding the plaintiff’s
standing is an impermissible collateral attack on the
judgment in a prior proceeding, from which the defen-
dant failed to file a petition for certification with our
Supreme Court. In accordance with our decision grant-
ing the plaintiff’s motion to dismiss the final appeal
of the foreclosure action, the underlying foreclosure
action concluded with title vesting absolutely in the
plaintiff on April 25, 2016. The plaintiff was entitled to
rely on the finality of the underlying foreclosure action
for its standing in the present summary process action.
Thus, the court improperly granted the defendant’s
motion to dismiss this summary process action for lack
of standing.
The judgment is reversed and the case is remanded
for further proceedings according to law.
In this opinion the other judges concurred.
1
Linda Farina and Richard Farina were named as defendants in the under-
lying foreclosure action. Linda Farina also was named as a defendant in
this action, but did not file an appearance. The four tenants of the property
are named as defendants in this action as Jane Doe 1, Jane Doe 2, John
Doe 1 and John Doe 2 (tenants). The tenants did not participate in this appeal.
We, therefore, refer to Richard Farina as the defendant in this opinion.
2
New law days were set for September 14, 2015.
3
The order of this court read as follows: ‘‘The motion of the [plaintiff],
filed May 4, 2016, to dismiss [the] appeal, having been presented to [this]
court, it is hereby ordered granted. The appeal as amended is dismissed.’’
4
During the hearing on the defendant’s motion to dismiss the summary
process action, the following colloquy occurred:
‘‘The Court: I think there should have been a reset for law dates—
‘‘[The Plaintiff’s Counsel]: But Your Honor, the Appellate Court certainly
knows how to rescript with that instruction—
‘‘The Court: Well, they didn’t.
‘‘[The Plaintiff’s Counsel]: —and they did not do so in this case.
‘‘The Court: They didn’t.
***
‘‘The Court: And all they said was case dismissed.
***
‘‘The Court: I’m still not convinced that you have . . . no stay here at
the time when the order was issued.
‘‘[The Plaintiff’s Counsel]: Well, Your Honor, it—
‘‘The Court: So, I’m going to dismiss the action. That’s it, I don’t agree
with you. I think there’s too much of a loophole here that you should have
come back to the foreclosure court. Tell him you want a new law day, and
get the thing wiped out, and then you’re all set. I just don’t like it that there
was a clear stay, and just because you asked, and they didn’t do anything
about it, I just don’t know—
‘‘[The Plaintiff’s Counsel]: Your Honor, with all due respect there was no
clear stay. There was no—
‘‘The Court: There was absolutely a clear stay. Your motion said there
was and then the—
‘‘[The Plaintiff’s Counsel]: Your Honor, our objection said there was none.
We filed an objection yesterday which clearly [sets] everything out.
‘‘The Court: I’m overruling your position, and I’m dismissing the case.
Take an appeal.’’
5
Practice Book § 61-11 (a) provides in relevant part: ‘‘Except where other-
wise provided by statute or other law, proceedings to enforce or carry out
the judgment or order shall be automatically stayed until the time to file
an appeal has expired. If an appeal is filed, such proceedings shall be stayed
until the final determination of the cause. . . .’’