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LENDINGHOME MARKETPLACE, LLC v.
TRADITIONS OIL GROUP, LLC
(AC 44450)
Prescott, Cradle and DiPentima, Js.
Syllabus
The plaintiff sought to foreclose a mortgage on certain real property owned
by the defendant, which was defaulted for failure to appear. Thereafter,
the trial court granted the plaintiff’s motion for a judgment of strict
foreclosure and rendered judgment thereon. The plaintiff sent notice of
the judgment to the defendant, and certified to the court that notice
had been mailed, pursuant to the applicable rule of practice (§ 17-22)
and the court’s uniform foreclosure standing orders. The defendant
failed to redeem the property on or before its law day and title to the
property vested in the plaintiff. More than one year after the passage
of the law day, the defendant filed a motion to open the judgment of
strict foreclosure. The court denied the defendant’s motion to open
and its subsequent motion to reargue/reconsider that ruling, and the
defendant appealed to this court. Held that the trial court did not abuse
its discretion in denying the defendant’s motion to open the judgment
of strict foreclosure and its motion to reargue/reconsider that ruling:
the particularized factual allegations in this case did not present the rare
and extreme circumstances that would justify granting the defendant the
extraordinary equitable relief it sought, namely, opening the judgment
of strict foreclosure more than one year after title had vested absolutely
in the plaintiff, in contravention of the applicable statute (§ 49-15), given
that the defendant raised no argument that it improperly had been
defaulted for failure to appear or that the court lacked personal jurisdic-
tion over it due to improper service, the record disclosed no nefarious
conduct on the part of the plaintiff, and title had already passed to a
nonparty purchaser; moreover, although the defendant asserted that it
never received the notices sent by the plaintiff, that failure was not
fairly attributable to the plaintiff but, instead, to the defendant’s apparent
failure to update its mailing address on file with the Secretary of the
State; furthermore, because there was no error in the court’s denial of
the defendant’s motion to open, the court did not abuse its discretion
in denying the defendant’s motion to reargue/reconsider that ruling.
Submitted on briefs September 13, 2021—officially released January 11, 2022
Procedural History
Action to foreclose a mortgage on certain real prop-
erty owned by the defendant, and for other relief,
brought to the Superior Court in the judicial district of
New Britain, where the defendant was defaulted for
failure to appear; thereafter, the court, Hon. Joseph
M. Shortall, judge trial referee, granted the plaintiff’s
motion for a judgment of strict foreclosure and ren-
dered judgment thereon; subsequently, the court, Auri-
gemma, J., denied the defendant’s motion to open the
judgment, and the defendant appealed to this court.
Affirmed.
Elio Morgan submitted a brief for the appellant
(defendant).
Patricia M. Lattanzio submitted a brief for the appel-
lee (plaintiff).
Opinion
PRESCOTT, J. In this mortgage foreclosure action,
the defendant, Traditions Oil Group, LLC, which was
defaulted for failure to appear, appeals from the trial
court’s denial of its motion to open the judgment of
strict foreclosure rendered in favor of the plaintiff,
LendingHome Marketplace, LLC, and from the denial of
its subsequent motion to reargue/reconsider that ruling.
Although the defendant filed its motion to open more
than one year after the passage of the law day set by
the court, the defendant nonetheless claims that the
court improperly denied its motions because (1) the
passing of the law day did not vest absolute title to the
subject property in the plaintiff due to the plaintiff’s
alleged failure to comply with notice requirements in
the court’s uniform foreclosure standing orders and
Practice Book § 17-22;1 (2) the court’s finding that the
plaintiff had complied with those notice requirements
was clearly erroneous; (3) the court failed to hold a
hearing on the motion to open in violation of the defen-
dant’s right to due process; and (4) the court abused
its discretion by summarily denying the defendant’s
motion to reargue. We conclude that the court properly
denied the defendant’s motions and, accordingly, affirm
the judgment of the court.
The record reveals the following relevant facts and
procedural history. The plaintiff commenced the under-
lying foreclosure action on June 28, 2019, with respect
to certain property in Newington. According to the com-
plaint, in 2018, the plaintiff had brought a prior action to
foreclose a mortgage on the property, which mortgage
secured a note executed by REI Holdings, LLC (REI),
in the principal sum of $185,200.2 This prior foreclosure
action, in which REI also was defaulted for failure to
appear, ended in a November 5, 2018 judgment of strict
foreclosure rendered in favor of the plaintiff, with the
law day set to expire after December 5, 2018. Prior to
that date, however, the defendant, who was not a party
to the prior action, asserted an interest in the subject
property by recording on the Newington land records
a statutory form quitclaim deed dated May 18, 2017.
The plaintiff commenced the present action to foreclose
the defendant’s interest in accordance with General
Statutes § 49-30.3
Process was served on June 28, 2019, in accordance
with General Statutes § 34-243r. According to the mar-
shal’s return of service, the marshal effectuated service
of process by leaving two copies at the Office of the
Secretary of the State, which was the defendant’s regis-
tered agent for service of process, and by sending addi-
tional copies via certified mail to the defendant’s princi-
pal office address in New York City as reflected on the
company’s registration certificate filed with the Secre-
tary of the State. By statute, all foreign limited liability
companies are required to register with the Secretary
of the State and the requisite foreign registration certifi-
cate must include the street and mailing addresses of
the company’s principal office. See General Statutes
§§ 34-275a and 34-275b. Any changes to a company’s
address must be provided to the Secretary of the State
on the company’s annual report. General Statutes § 34-
247k (a) (2) and (b). The marshal filed a supplemental
return of service on August 2, 2019, showing that the
postal service had returned to the marshal the process
mailed to the New York address as ‘‘unclaimed’’ and
‘‘unable to forward.’’
On August 8, 2019, the defendant was defaulted for
failure to file an appearance. On September 9, 2019, the
plaintiff filed a motion for a judgment of strict foreclo-
sure, which the court subsequently granted on Septem-
ber 23, 2019. A law day for the defendant was set for
October 21, 2019.4
On September 30, 2019, the plaintiff, in accordance
with Practice Book § 17-22, filed with the court a copy of
a notice of the entry of a judgment of strict foreclosure,
which the plaintiff’s counsel certified he mailed to the
defendant by first class mail to the defendant’s New
York address. In addition, the plaintiff filed a copy of
the letter that it had sent to the defendant at the same
New York address via certified and regular mail pursu-
ant to the court’s uniform foreclosure standing orders,
which notified the defendant of the entry of the judg-
ment of strict foreclosure and its terms, including the
law day and that the defendant risked loss of any poten-
tial equity in the property if it failed to take action before
the law day passed. The defendant failed to redeem the
property on or before its law day and, accordingly,
title to the property vested in the plaintiff.5 See Ocwen
Federal Bank, FSB v. Charles, 95 Conn. App. 315, 322–
23, 898 A.2d 197, cert. denied, 279 Conn. 909, 902 A.2d
1069 (2006); see also General Statutes § 49-15. The plain-
tiff filed a certificate of foreclosure on the Newington
land records on November 1, 2019.
On November 2, 2020, more than one year after its
law day had passed, the defendant filed an appearance
with the court and a motion to open and vacate the
judgment of strict foreclosure. A supporting affidavit
signed by Jay Seinfeld, the managing member of the
defendant, was attached to the motion to open.
According to the motion and the affidavit, the defendant
never received the notice of the entry of the judgment
of strict foreclosure, and the plaintiff ‘‘intentionally mis-
represented otherwise to the court by way of its false
certification in violation of the trial court’s standing
orders.’’ The plaintiff filed an objection to the motion
to open. Attached to the objection as an exhibit were
copies of the addressed envelopes and tracking results
printed from the United States Postal Service website.
The plaintiff also filed a supplemental objection that
informed the court that the subject property had been
sold to a third party for value on January 17, 2020. The
plaintiff attached to the supplemental objection a copy
of the recorded deed.
The trial court, Aurigemma, J., denied the defen-
dant’s motion to open. In its order, the court first noted
the sale of the property to a third party. It then stated:
‘‘[T]he defendant has failed to file any affidavit indicat-
ing that it did not receive notice or indicating the date
on which it did receive notice.6 Also denied for the
reasons set forth in the plaintiff’s objections . . . . The
plaintiff complied with the service and notice require-
ments.’’ (Footnote added.) The court subsequently
denied without comment the defendant’s motion to
reargue and reconsider the denial of the motion to open.
This appeal followed.7
The defendant claims that the court improperly
denied its motions because (1) the plaintiff’s alleged
failure to comply with notice requirements in the court’s
uniform foreclosure standing orders and Practice Book
§ 17-22 meant title never passed to plaintiff following
the running of the law day; (2) the court’s finding that
the plaintiff complied with all notice requirements was
clearly erroneous; (3) the court violated the defendant’s
right to due process by failing to hold a hearing on the
motion to open; and (4) the court abused its discretion
by summarily denying the defendant’s motion to rear-
gue/reconsider the denial of the motion to open. We
conclude, for the reasons that follow, that the court
properly denied the defendant’s motions in accordance
with General Statutes § 49-15.
‘‘The relevant standard of review is well established.
Whether proceeding under the common law or a statute,
the action of a trial court in granting or refusing an
application to open a judgment is, generally, within the
judicial discretion of such court, and its action will not
be disturbed on appeal unless it clearly appears that
the trial court has abused its discretion. . . . The trial
court’s findings of fact, by contrast, are subject to the
clearly erroneous standard of review.’’ (Citations omit-
ted; internal quotation marks omitted.) U.S. Bank
National Assn. v. Rothermel, 339 Conn. 366, 381–82,
260 A.3d 1187 (2021).
As our Supreme Court has stated, ‘‘[t]he law govern-
ing strict foreclosure lies at the crossroads between the
equitable remedies provided by the judiciary and the
statutory remedies provided by the legislature.’’ New
Milford Savings Bank v. Jajer, 244 Conn. 251, 256, 708
A.2d 1378 (1998). Particularly relevant to the present
appeal is § 49-15, which places express statutory limits
on the discretionary power of the Superior Court to
open a judgment of strict foreclosure once law days
have passed.
Section 49-15 (a) provides in relevant part: ‘‘(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, which-
ever is later, and (B) the rights and interests of each
party, regardless of whether the party filed an appear-
ance 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.’’ (Empha-
sis added.)
The defendant’s motion to open in the present case
primarily was predicated on its claim that the plaintiff
falsely had certified its compliance with the terms of
the court’s standing orders. The defendant also heavily
relied on this court’s opinion in Wells Fargo Bank, N.A.
v. Melahn, 148 Conn. App. 1, 85 A.3d 1 (2014), as sup-
porting its argument that the trial court should have
exercised its equitable powers to open the judgment,
in contravention of § 49-15, even though title had vested
absolutely in the plaintiff.
In Melahn, the plaintiff had failed to give proper
notice to the nonappearing defendants by regular and
certified mail in accordance with the court’s standing
orders; see id., 4–5; which requires all foreclosure plain-
tiffs to send a letter detailing the terms of the judgment
rendered to any nonappearing defendant owners within
ten days following the entry of a judgment of strict
foreclosure. Those standing orders further provide that
a plaintiff cannot file a certificate of foreclosure on the
relevant land records until it has provided the court
with proof that the aforementioned letter has been
mailed. The plaintiff in Melahn did not mail its notice
of the judgment until four days before the law days
were set to run and notice was not actually received
by the defendant until the actual law day. Id., 4. Further-
more, although the plaintiff in Melahn certified its com-
pliance with the court, the notice that it sent did not
contain all of the information required under the stand-
ing orders. Id., 4–5. This court reasoned that these defi-
ciencies represented the type of ‘‘rare and extreme’’
case in which equity will permit a court to provide relief
in response to ‘‘an egregious mistake’’ on the basis of
‘‘the unusual specific facts and circumstances . . .
including the omissions and falsification by the plaintiff
constituting its noncompliance with the strict foreclo-
sure judgment of the court . . . .’’ (Internal quotation
marks omitted.) Id., 3, 11–12. Under those particular
circumstances, and because no fault could be attributed
to the defendant, this court concluded that the trial
court had authority to open the judgment of strict fore-
closure despite § 49-15’s prohibition against doing so
after law days have passed and title has become abso-
lute in any encumbrancer. See id., 12–13; see also Gen-
eral Statutes § 49-15.
More recently, in U.S. Bank National Assn. v. Rother-
mel, supra, 339 Conn. 366, our Supreme Court reaf-
firmed the basic principle that at least some equitable
claims could be raised after title had passed in a foreclo-
sure matter as a basis for opening the judgment, but
only in ‘‘rare and exceptional cases.’’ Id., 377. It stated
that the exceptions that might justify equitable interfer-
ence are limited and must be determined on a case-
by-case basis.8 See id., 376, 379 n.11. Specifically, our
Supreme Court cautioned: ‘‘[T]he jurisdictional conclu-
sion reached in the present appeal should not be taken
as an invitation for parties in strict foreclosure proceed-
ings to repackage motions to open the judgment filed
after the passage of the law days in a manner that
superficially invokes the inherent powers underlying
[New Milford Savings Bank v. Jajer, supra, 244 Conn.
251] or Melahn. Exceptions to the general rule against
postvesting motions to open judgments of strict foreclo-
sure are, in fact, rare and exceptional. A bare assertion
that equity requires such relief is insufficient; as in the
present case, the party seeking to invoke the trial court’s
continuing jurisdiction must base their motion to open
on particularized factual allegations that could support
a claim cognizable in equity. Trial courts may, under
existing case law, grant motions to dismiss pursuant to
§ 49-15 in cases in which a claim raised in a postvesting
motion to open fails to present colorable grounds for
equitable relief under these limited exceptions, and
appellate courts may continue to summarily dismiss
appeals taken from those rulings. We note that such a
dismissal in the Appellate Court would occur only after
the appellant has been given the opportunity to submit
a response to an appellee’s motion to dismiss or to
present argument giving reasons why the case should
not be dismissed in response to the court’s own
motion.’’ (Emphasis added.) U.S. Bank National Assn.
v. Rothermel, supra, 379 n.11.
The present case is readily distinguishable from Mel-
ahn, and, like in Rothermel, we do not view the present
case as raising the type of rare and extreme circum-
stances that would justify departing from the statutory
mandate set forth in § 49-15. See id., 384. On the basis
of our review of the facts and procedural history of this
case, we conclude that the trial court correctly denied
the motion to open because the particularized factual
allegations did not justify granting the defendant the
extraordinary equitable relief it sought. The defendant
raised no argument that it improperly had been
defaulted for failure to appear or that the trial court’s
judgment of strict foreclosure should be opened on the
ground that the court lacked personal jurisdiction over
it due to improper service of process. The record dis-
closes no nefarious conduct on the part of the plaintiff
that could warrant opening the judgment at such a late
date, particularly when title to the subject property has
already passed to a nonparty purchaser. The defendant
raises an immaterial challenge to the content of the
notice sent by the plaintiff, and it cannot claim that the
notice was not timely mailed by the plaintiff. Accord-
ingly, none of the defects identified by the court in
Melahn as a basis for its decision to open the judgment
in that case is present here.
Although the defendant asserts that it never received
the notices sent by the plaintiff, this failure is not fairly
attributable to the plaintiff but to the defendant’s appar-
ent failure to update its mailing address on file with
the Secretary of the State. In short, we reject the defen-
dant’s claim that the court abused its discretion by
denying its postjudgment motion to open because the
defendant has failed to overcome the significant hurdle
of alleging factual allegations necessary to avoid the
statutory prohibition set forth in § 49-15. Because there
was no error in the court’s ruling, we also conclude
that the court did not abuse its discretion in denying
the defendant’s motion to reargue/reconsider.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Practice Book § 17-22 provides: ‘‘A notice of every nonsuit for failure
to enter an appearance or judgment after default for failure to enter an
appearance, which notice includes the terms of the judgment, shall be sent
by mail or electronic delivery within ten days of the entry of judgment by
counsel of the prevailing party to the party against whom it is directed and
a copy of such notice shall be filed with the clerk’s office. Proof of service
shall be in accordance with [Practice Book §] 10-14.’’
Section D of the Superior Court Standing Orders JD-CV-104 provides:
‘‘Within [ten] days following the entry of judgment of strict foreclosure, the
plaintiff must send a letter by certified mail, return receipt requested, and
by regular mail, to all non-appearing defendant owners of the equity and a
copy of the notice must be sent to the clerk’s office. The letter must contain
the following information: a.) the letter is being sent by order of the Superior
Court; b.) the terms of the judgment of strict foreclosure; c.) non-appearing
defendant owner(s) of equity risk the loss of the property if they fail to take
steps to protect their interest in the property on or before the defendant
owners’ law day; d.) non-appearing defendant owner(s) should either file
an individual appearance or have counsel file an appearance in order to
protect their interest in the equity. The plaintiff must file the return receipt
with the Court. THE PLAINTIFF MUST NOT FILE A CERTIFICATE OF
FORECLOSURE ON THE LAND RECORDS BEFORE PROOF OF MAILING
HAS BEEN FILED WITH THE COURT.’’ (Emphasis in original.)
2
Although the complaint states that the mortgage at issue was executed
by an Elberta McCormack, this appears to be a drafting error. McCormack’s
name does not appear on the mortgage or any other relevant document. A
copy of the mortgage was attached to the complaint in the prior action and
shows that the mortgagor was REI.
3
General Statutes § 49-30 provides: ‘‘When a mortgage or lien on real
estate has been foreclosed and one or more parties owning any interest in
or holding an encumbrance on such real estate subsequent or subordinate
to such mortgage or lien has been omitted or has not been foreclosed of
such interest or encumbrance because of improper service of process or
for any other reason, all other parties foreclosed by the foreclosure judgment
shall be bound thereby as fully as if no such omission or defect had occurred
and shall not retain any equity or right to redeem such foreclosed real estate.
Such omission or failure to properly foreclose such party or parties may
be completely cured and cleared by deed or foreclosure or other proper
legal proceedings to which the only necessary parties shall be the party
acquiring such foreclosure title, or his successor in title, and the party or
parties thus not foreclosed, or their respective successors in title.’’
4
The court also found that the debt as of the judgment date was $244,478.09
and that the fair market value of the property was $150,000.
5
‘‘In Connecticut, a mortgagee has legal title to the mortgaged property
and the mortgagor has equitable title, also called the equity of redemption.
. . . The equity of redemption gives the mortgagor the right to redeem
the legal title previously conveyed by performing whatever conditions are
specified in the mortgage, the most important of which is usually the payment
of money. . . . Under our law, an action for strict foreclosure is brought
by a mortgagee who, holding legal title, seeks not to enforce a forfeiture
but rather to foreclose an equity of redemption unless the mortgagor satisfies
the debt on or before his law day. . . . Accordingly, [if] a foreclosure decree
has become absolute by the passing of the law days, the outstanding rights
of redemption have been cut off and the title has become unconditional in
the plaintiff, with a consequent and accompanying right to possession. The
qualified title which the plaintiff had previously held under his mortgage
had become an absolute one.’’ (Citation omitted; internal quotation marks
omitted.) Sovereign Bank v. Licata, 178 Conn. App. 82, 97, 172 A.3d 1263
(2017).
6
It is not clear from the court’s statement whether the court meant that
no affidavit was attached to the motion or only that the attached affidavit
lacked the specific information identified by the court. In either instance,
we agree with the defendant that the court’s statement is belied by the
record. As previously indicated, the defendant attached a supporting affidavit
to its motion to open. The defendant averred through its managing member
that ‘‘[a]t no time subsequent to September 23, 2019 was [any correspon-
dence] detailing the notice of judgment in the above captioned matter
received by the [defendant] as certified or regular mail’’ and that ‘‘[t]he
terms of the judgment . . . only became known after title had arguably
passed to the [plaintiff].’’ Thus, the defendant both provided the court with
an affidavit and indicated in that affidavit that it had not received notice of
the judgment. Nevertheless, we are convinced that this error by the court
was harmless because even if the court had acknowledged the affidavit and
the defendant’s assertion that it did not receive notice, the facts averred in
the affidavit do not establish that this is the type of ‘‘rare and exceptional’’
case warranting the extraordinary relief sought by the defendant. See U.S.
Bank National Assn. v. Rothermel, 339 Conn. 366, 377, 260 A.3d 1187 (2021).
7
On September 7, 2021, this court ordered the parties to file supplemental
briefs addressing the applicability to the present appeal of our Supreme
Court’s decision in U.S. Bank National Assn. v. Rothermel, 339 Conn. 366,
260 A.3d 1187 (2021), which was released on June 23, 2021, after the parties
had filed their principal briefs.
8
Although the court in Rothermel cited to Cavallo v. Derby Savings Bank,
188 Conn. 281, 449 A.2d 986 (1982), for the proposition that ‘‘[f]raud, accident,
mistake, and surprise are recognized grounds for equitable interference’’;
(internal quotation marks omitted) id., 285; the court did not provide any
additional guidance regarding what might qualify in the future as a rare and
exceptional case. See U.S. Bank National Assn. v. Rothermel, supra, 339
Conn. 379.