Nationstar Mortg. v. Giacomi

319 A.3d 794

226 Conn.App. 467

NATIONSTAR MORTGAGE, LLC

v.Alan M. GIACOMI, et al.

(AC 46212)

Appellate Court of Connecticut.

Argued January 29, 2024

Officially Released July 2, 2024

Alan M. Giacomi, self-represented, the appellant (named defendant).

Jeffrey M. Knickerbocker, for the appellee (plaintiff).

Clark, Seeley and Prescott, Js.

CLARK, J.

₄₆₈The defendant Alan M. Giacomi¹ appeals from the judgment of the trial court denying his motion to open and vacate the judgment of foreclosure by sale rendered after he was defaulted for failure to plead. On appeal, the defendant claims that the court improperly (1) "den[ied] [his] requests to participate in foreclosure mediation," (2) "sustain[ed] the plaintiff’s objection to [his] request to revise on or about February 5, 2020," and (3) denied his motion to open the default judgment pursuant to General Statutes § 52-212 (a). We disagree and, accordingly, affirm the judgment of the trial court.²

₄₆₉The following facts and procedural history are relevant to our resolution of this appeal. On May 18, 2017, the original plaintiff, Nationstar Mortgage, LLC (Nationstar), commenced this action against Melissa R. Giacomi (Melissa Giacomi) to foreclose a mortgage on property located at 70 Arvida Road in Wolcott owned by Melissa Giacomi and the defendant, who formerly were married but have since divorced. Although the original summons and complaint named both Melissa Giacomi and the defendant as defendants, Nationstar failed to serve the original summons and complaint on the defendant. On June 26, 2017, Melissa Giacomi filed a foreclosure mediation request, which the clerk of court granted on July 11, 2017. Melissa Giacomi and Nationstar subsequently engaged in court-annexed mediation between July, 2017, and January, 2018. On January 10, 2018, the foreclosure mediator filed a final report stating that the case had not been settled, and the mediation period subsequently was terminated.

On January 16, 2018, Nationstar filed a motion to cite in the defendant as a party defendant, which was granted by the court, M. Taylor, J., on January 29, 2018. On May 14, 2018, after the defendant was defaulted for failure to appear, Nationstar filed a motion for a judgment of strict foreclosure, which was granted by the court on May 29, 2018, with the law days set to commence on August 7, 2018.

On June 29, 2018, Nationstar filed a motion to open the judgment nunc pro tunc and to substitute "U.S. Bank National Association, not in its individual capacity but solely as trustee for the RMAC Trust, Series 2016-CCT" (U.S. Bank), as the plaintiff on the basis that ₄₇₀Nationstar had assigned the mortgage to U.S. Bank by an assignment dated May 17, 2018, and recorded on the Wolcott land records on May 29, 2018. On July 16, 2018, the court granted the motion.³

On August 3, 2018, Melissa Giacomi filed a notice of bankruptcy stay. On December 14, 2018, after Melissa Giacomi received a discharge from the bankruptcy court and her bankruptcy case was closed, U.S. Bank filed a motion to open and reset the law days. On January 28, 2019, the court granted the motion and rendered a judgment of strict foreclosure with the law days to commence on July 2, 2019.

On June 20, 2019, the defendant filed an appearance in the case. The defendant filed a motion to open and vacate the judgment on July 1, 2019, which the court granted on the same day and reset the law days to commence on July 23, 2019. Thereafter, on July 19, 2019, the defendant filed a motion to dismiss, claiming that the court had no personal jurisdiction over him pursuant to Practice Book § 10-30 (a) (2) and (4), and Hyde v. Richard, 145 Conn. 24, 138 A.2d 527 (1958), because the "defendant was never served with process ₄₇₁…." On August 1, 2019, the court granted the defendant’s motion to dismiss the case against him for lack of personal jurisdiction, finding that, at the time of service, the defendant did not live at the address where Nationstar had attempted service of process.

On August 7, 2019, a motion to open and vacate the judgment of foreclosure and a motion to cite in the defendant as a party defendant was filed. On August 19, 2019, the court granted the motion to open and vacate the judgment, and, on August 23, 2019, the court granted the motion to cite in the defendant as a party defendant. On November 12, 2019, due to an error in service, an additional motion to cite in the defendant as a party defendant was filed and was granted by the court on November 25, 2019.⁴ On December 23, 2019, the defendant was finally served with the amended complaint.

On July 12, 2022, U.S. Bank filed a revised complaint, which is the operative complaint in this appeal. On August 10, 2022, U.S. Bank filed a motion for a judgment of strict foreclosure. The defendant filed a request to revise on August 11, 2022, which was denied by the court on September 6, 2022. The defendant subsequently filed a motion to strike on September 20, 2022, which was denied by the court on October 11, 2022. Thereafter, the defendant failed to file a timely pleading in response to the operative complaint by the October 26, 2022 deadline for doing so under Practice Book § 10-8.⁵ As a result, on November 1, 2022, U.S. Bank moved ₄₇₂to default the defendant for failure to plead. The court granted that motion on November 8, 2022. On November 14, 2022, the court held a hearing on U.S. Bank’s August 10, 2022 motion for a judgment of strict foreclosure, at which it rendered a judgment of foreclosure by sale with a sale date of February 25, 2023.

On December 5, 2022, the defendant filed a motion to open and vacate the judgment of foreclosure, arguing that he had good defenses at the time the judgment was rendered and that he was unable to raise his defenses by filing a timely answer due to mistake, accident, or other reasonable cause. Specifically, the defendant stated, inter alia, that he "failed to plead due to his belief that he had thirty days to plead after the court’s action on the prior pleading. … The defendant was unaware that foreclosure actions carried different time constraints than regular civil actions." U.S. Bank filed an objection to the defendant’s motion on December 13, 2022. On December 21, 2022, the court denied the defendant’s motion to open and vacate the judgment of foreclosure and sustained U.S. Bank’s objection to the motion.

In its memorandum of decision, the court stated: "The court has considered the arguments of the defendant and the response of [U.S. Bank] and is not persuaded to reopen the judgment of foreclosure pursuant to [§ 52-212 (a)] or Practice Book § 17-43.

"To open a judgment, the defendant must demonstrate both that he has a good defense to the underlying action and that he was prevented by mistake, accident, or other excusable neglect from raising said defense. ₄₇₃Even if the court is persuaded that the defendant has good reason for not timely raising the defense, if the defense is insufficient, the judgment should not be opened. See generally Costello v. Hartford Institute of Accounting, Inc., 193 Conn. 160, 167, 475 A.2d 310 (1984). The defendant has not presented good cause for the court to reopen the judgment. He has not credibly demonstrated that a good defense existed at the time of judgment.

"As to the timing of the default, it was properly entered. [U.S. Bank] moved for the default on November 1, 2022, and it was granted on November 8, 2022. The defendant claims he only received the notice of the granting of the default on November 10, 2022, the courthouse was closed on November 11, 2022, and the judgment hearing was on November 14, 2022—so he did not have time to go to the courthouse library to conduct legal research. The default was moved for on November 1, 2022. Based on the defendant’s affidavit, he had not even begun to research his defenses at the time he received notice of the granting of the motion. While the defendant is a self-represented party, it is also true that he is a former attorney with more legal training than others before the court and had, at least at some point in the past, knowledge of the Connecticut Practice Book and knowledge of pleading timelines. The court cannot say that the defendant was prevented by mistake, accident, or excusable neglect from timely raising his potential defenses, as it appears that he neglected to raise them by his own negligence. He notes that he has vigorously defended the proceedings thus far, and the court acknowledges that he has, but the default entered properly for his not timely filing a responsive pleading when due nor after receiving [U.S. Bank’s] motion requesting the default.

"Although at this point the court, based on the above finding, does not need to review the potential defenses, for the sake of a clean record, the court will do so.

₄₇₄"The defenses being claimed by the defendant are grounded in equity. Foreclosures are equitable proceedings and equitable defenses are available thereto. The defendant first claims that the original lender engaged in fraud in approving him for a mortgage as he executed a loan given to him based on inaccurate figures amended by employees of GMAC [Mortgage Corporation] prior to the loan origination and that the terms on the second mortgage signed contemporaneously with the loan subject to his action were inaccurate. The defendant then claims that the procedural delays caused by [Nationstar’s] initial inability to serve him because he was no longer at the premises, and then through delays in causing the motions to cite to be consummated with valid service, resulted in his not being able to engage in mediation and caused excessive interest accrual. Accordingly, the defendant contends that the court should consider the procedural delays of [Nationstar and U.S. Bank] as a defense pursuant to U.S. Bank National Assn. v. Blowers, 332 Conn. 656, 212 A.3d 226 (2019). Finally, the defendant claims a priority issue, alleging that the federal lien on his...