Bank of N.Y. Mellon v. Horsey

321 A.3d 441

227 Conn.App. 94

BANK OF NEW YORK MELLON, Successor Trustee

v.Wade H. HORSEY II et al.

(AC 46167)

Appellate Court of Connecticut.

Argued February 15, 2024

Officially Released July 30, 2024

Thomas P. Willcutts, Hartford, for the appellants (defendants).

Geoffrey K. Milne, Hartford, for the appellee (substitute plaintiff).

Elgo, Clark and Lavine, Js.

LAVINE, J.

₉₅In this protracted foreclosure matter, the defendants Wade H. Horsey II and Jacquelyn Costa ₉₆Horsey¹ appeal from the judgment of the trial court denying their motion to set aside the court’s judgment of strict foreclosure rendered in favor of the substitute plaintiff, The Bank of New York Mellon, as Successor Trustee for JPMorgan Chase Bank, N.A., as Trustee for Novastar Mortgage Funding Trust, Series 2005-2 Novastar Home Equity Loan Asset-Backed Certificates, Series 2005-2. The dispositive issue in this appeal is whether the defendants filed "at least two prior motions to open or other similar motion" pursuant to Practice Book § 61-11 (g),² such that an automatic appellate stay did not apply to toll the running of the law days. We conclude that no automatic stay was triggered by operation of § 61-11 (g), and, thus, the law days have passed, divesting the defendants of their interest in the property, and title to the property has vested in the substitute plaintiff. Accordingly, this court can provide the defendants no practical relief, and we dismiss this appeal as moot.

In order to place this matter in proper context, a detailed recitation of its procedural history must be provided. The following facts and procedural history, as set forth in this court’s decision in Bank of New York Mellon v. Horsey, 182 Conn. App. 417, 190 A3d 105, cert. denied, 330 Conn. 928, 194 A.3d 1195 (2018), or as otherwise undisputed, are relevant to our disposition ₉₇of the present appeal. "The original plaintiff, The Bank of New York Mellon, as Successor Trustee under Novastar Mortgage Funding Trust 2005-2, commenced this action in September, 2009 … [seeking] to foreclose on a mortgage that the defendant[s] had executed in 2005 on property in Avon as security for a note in the principal amount of $390,000.³ The original plaintiff alleged that it was the holder of the note and mortgage and that the note was in default for nonpayment.

…

"Foreclosure mediation began and continued through the end of 2010. Over the following year and a half, the parties filed a number of motions related to discovery. On September 26, 2012, the original plaintiff assigned the mortgage to the substitute plaintiff, which the court substituted into the action for the original plaintiff on November 19, 2012." (Citation omitted; footnote in original.) Id., at 421-22, 190 A.3d 105.

After the defendants filed their answer on October 9, 2013, "[n]o further activity in the action occurred until April 17, 2015, at which time the defendant[s] filed a motion pursuant to Practice Book § 14-3 asking the court to render a judgment of dismissal on the ground that the substitute plaintiff had failed to prosecute the action with reasonable diligence. The court, Vacchelli, J., issued an order on May 6, 2015, denying the defendant[s’] motion, but directing the substitute plaintiff to move for summary judgment or to take some other action to advance the case within sixty days. The court ₉₈indicated that, if the substitute plaintiff failed to comply, the court would entertain a renewed motion to dismiss.

"The substitute plaintiff filed a motion for summary judgment as to liability only on December 21, 2015. Along with its motion, the substitute plaintiff submitted copies of the note, the mortgage and assignments, and an affidavit averring, inter alia, that the substitute plaintiff was the holder of the note and the mortgagee of record …. [Wade] filed an objection to the motion for summary judgment on February 29, 2016. He did not attach an affidavit or any other evidence that disputed factually the summary judgment submissions of the substitute plaintiff. … "The court, Robaina, J., heard argument on the motion for summary judgment on March 21, 2016. On April 14, 2016, the court issued orders, without comment … overruling [Wade’s] objection to the motion for summary judgment. The court also issued the following order granting the motion for summary judgment as to liability only: ‘[I]t is hereby found that no genuine issue of material fact exists as to the defendants’ liability on the note and mortgage. … Determination of the amount of indebtedness is deferred until such time as [the substitute] plaintiff seeks a judgment of foreclosure.’

"On April 19, 2016, [Wade] filed an appeal from the court’s April 14, 2016 orders granting the motion for summary judgment as to liability and denying his motion for a disciplinary dismissal of the action. The substitute plaintiff filed with this court a motion to dismiss that appeal for lack of a final judgment. The motion was granted on May 25, 2016. … On July 20, 2016, the substitute plaintiff reclaimed for the short calendar list its April 23, 2010 motion seeking a judgment of strict foreclosure.

₉₉"On August 1, 2016, the parties appeared before the court, Noble, J., on the court’s dormancy docket. The court had issued a notice to appear and show cause on March 18, 2016, prior to the hearing on the motion for summary judgment, directing the parties to appear to address the status of the case and indicating that ‘the court may dismiss this action at the hearing.’ The court first heard from counsel for the substitute plaintiff, who indicated that the substitute plaintiff was ready to proceed to judgment but was awaiting the return of the original note and other documents necessary to secure the judgment," as those documents were in the possession of a law firm that the substitute plaintiff had previously hired to represent it in this action. (Citations omitted; footnotes omitted.) Id., at 422-25, 190 A.3d 105. Wade then "brought to the court’s attention that he previously had filed a motion to dismiss for lack of diligence and that the substitute plaintiff had failed to comply with the court’s order directing the substitute plaintiff to take some action to advance the case within sixty days. … [A]fter confirming that the case had been on the docket since 2009, the court … dismissed the action." Id., at 425, 190 A.3d 105.

The substitute plaintiff filed a motion to open and set aside the judgment of dismissal, arguing that "it had filed and reclaimed a motion for a judgment of strict foreclosure prior to the court’s dismissal …." Id. The court granted the motion to open, then considered the motion for a judgment of strict foreclosure. Id., at 426, 190 A.3d 105. After determining the fair market value of the property and the amount of debt owed, the court rendered a judgment of strict foreclosure and set law days to commence on November 28, 2016. Id., at 428, 190 A.3d 105.

Wade then appealed to this court, claiming, among other things, that the substitute plaintiff lacked standing to prosecute this action. Id., at 440, 190 A.3d 105. This court rejected that claim and concluded, on the basis of the record ₁₀₀presented, "that [Wade] failed to rebut the presumption that the substitute plaintiff ha[d] standing to prosecute this action as the holder of the note and mortgage." Id. Accordingly, this court affirmed the judgment of the trial court and remanded the case for the purpose of setting new law days. Id., at 445, 190 A.3d 105.

On December 20, 2018, the substitute plaintiff filed a motion in the trial court to reset the law days in accordance with this court’s remand order. On February 22, 2019, before the court ruled on the motion to reset the law days, Wade filed a motion to open and vacate the judgment of strict foreclosure. In his motion, Wade claimed that the original plaintiff lacked standing at the inception of the case to pursue the foreclosure action. Wade further argued that, when he raised the issue of standing in his objection to the substitute plaintiff's motion for summary judgment, the court should have held an evidentiary hearing to determine whether the original plaintiff was the holder of the note at the time the action was commenced or whether the mortgage loan servicer was otherwise entitled to enforce the note.

On March 26, 2019, the court, Sheridan, J., denied Wade’s motion to open the judgment because it was "untimely and fail[ed] to demonstrate good cause to open the judgment of strict foreclosure entered on September 12, 2016, which judgment was affirmed by [the] Appellate Court on appeal." Wade filed a motion to reargue and reconsider the denial of the motion to open, which the court, Dubay, J., denied. The court then reset the law days to commence on May 28, 2019.

On May 10, 2019, Jacquelyn appealed to this court from the judgment of strict foreclosure and the trial court’s denial of Wade’s February 22, 2019 motion to open. In a per curiam decision, this court affirmed the judgment of the trial court and remanded the case for ₁₀₁the purpose of setting new law days. Bank of New York Mellon v. Horsey, 210 Conn. App. 904, 267 A.3d 994, cert. denied, 343 Conn. 909, 273 A.3d 696 (2022).

On June 3, 2022, the substitute plaintiff filed a motion in the trial court to reset the law days in accordance with this court’s remand order. That same day, Wade filed a motion captioned "Motion for Judgment of Dismissal for Lack of Standing and Lack of Subject Matter Jurisdiction." In that motion, Wade again argued that the original plaintiff lacked standing at the time the foreclosure action was commenced because it was not the owner of the note or mortgage when the action was initiated. Wade argued that any affidavits attesting otherwise were "fraudulent and forgeries attempting to mislead the Superior Court," and that "[t]he jurisdictional defect resulting from the [original] plaintiff's lack of standing cannot be cured by amending the complaint to add a party...