No. 2 Fraser Place Condo. Ass'n, Inc. v. Mathis

316 A.3d 813

225 Conn.App. 534

NO. 2 FRASER PLACE CONDOMINIUM ASSOCIATION, INC.

v.Sharon MATHIS et al.

(AC 46406)

Appellate Court of Connecticut.

Argued January 30, 2024

Officially Released May 21, 2024

Thomas P. Willcutts, Hartford, for the appellants (named defendant et al.).

Houston Putnam Lowry, Hartford, with whom were Nicole K. Zatserkovniy, and, on the brief, Elizabeth M. Cristofaro, for the appellee (plaintiff).

Alvord, Seeley and Westbrook, Js.

WESTBROOK, J.

More than ten years ago, the plaintiff, No. 2 Fraser Place Condominium Association, Inc., a unit owners’ association of a common interest community, brought the underlying action to foreclose a statutory lien for unpaid monthly common expense assessments and late charges in accordance with General Statutes § 47-258¹ regarding a condominium unit ₅₃₇(unit) owned by the defendant Sharon Mathis and occupied by her daughter, the defendant Shalonda Mathis.² The court rendered a judgment of strict foreclosure on September 23, 2013, and set law days to commence on November 18, 2013. The law days passed without redemption but, to date, the plaintiff has not taken possession of the unit.

The defendants now appeal from the judgment of the court denying an application for a writ of audita querela (application) filed by Sharon Mathis, in which she argues that the latest in a series of ejectment orders obtained by the plaintiff should be enjoined on the ground that, prior to the passing of the law days in 2013, she purportedly had reached an agreement with the plaintiff to pay off the judgment amount, performed in accordance with that agreement, and, thus, effectively redeemed her ownership interest such that title to her unit never passed to the plaintiff by operation of law following the passage of the law days. The defendants claim that the court improperly (1) concluded that the evidence presented in support of the application did not support a finding that the parties had reached and performed on any agreement to satisfy the debt and redeem the property, (2) failed to conclude that the granting of the application was necessary to avoid an inequitable windfall to the plaintiff, and (3) declined to admit into evidence certain exhibits offered by the ₅₃₈defendants’ counsel at the hearing on the application. We disagree and, accordingly, affirm the judgment of the trial court.³

The record reveals the following facts and procedural history. In July, 2012, the plaintiff commenced the underlying foreclosure action. Sharon Mathis was defaulted for failure to appear, and Shalonda Mathis was defaulted for failure to plead, and the court rendered a judgment of strict foreclosure in favor of the plaintiff on September 23, 2013. The court found that the amount of the debt owed as of the judgment date was $6874.85, and it set law days to commence on November 18, 2013.⁴ No appeal was taken from the judgment of strict foreclosure.

On or about November 15, 2013, Shalonda Mathis made a payment of $5800 to the plaintiff, which was less than the full amount needed to redeem the property. See, e.g., Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555, 579 n.7, 55 S. Ct. 854, 79 L. Ed. 1593 (1935) (it is axiomatic that holder of equity of redemption can redeem from mortgagee or lien holder ₅₃₉only by paying outstanding debt in full); Lomas & Nettleton Co. v. Di Francesco, 116 Conn. 253, 258, 164 A. 495 (1933) (same). Although Shalonda Mathis made an inquiry as to the remaining amount needed to satisfy the judgment in full, she failed to make any further payments before the law days passed. Because the law days passed without any redemption of the property, all rights of redemption were extinguished and title to the unit vested absolutely in the plaintiff. See Sovereign Bank v. Licata, 178 Conn. App. 82, 97, 172 A.3d 1263 (2017) ("[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" (internal quotation marks omitted)).

The plaintiff applied for an order of execution of ejectment, which was granted and issued on March 27, 2014. The ejectment, however, did not take place. The plaintiff filed another application for execution of ejectment on April 7, 2017, which was granted and issued on April 21, 2017. Once again, the ejectment did not occur.⁵ Several years later, on July 29, 2020, the plaintiff applied for a third execution of ejectment, which was granted and issued on January 19, 2021. The defendants were served with notice of the January 19, 2021 execution of ejectment, which indicated that they had until February 16, 2021 to quit possession. On February 8, 2021, Shalonda Mathis filed a motion to open the foreclosure judgment and a motion for a stay of the ₅₄₀ejectment asking for an "additional time of … [twenty] weeks before moving out." The court, M. Taylor, J., denied the motion to open but granted the motion to stay the ejectment until May 3, 2021.⁶

The plaintiff filed another application for an order of execution of ejectment on May 25, 2021, which was granted and issued the same day. On June 16, 2021, Shalonda Mathis filed a motion seeking to stay the ejectment for ten or more additional weeks. The court, Budzik, J., denied the motion and set a new ejectment date of July 13, 2021.

On July 15, 2021, the plaintiff filed a motion for sanctions seeking to preclude the defendants from filing further motions for stays of ejectment. On July 16, 2021, Shalonda Mathis filed her third motion for a stay of ejectment, seeking to stay the ejectment for an additional four weeks. The court, M. Taylor, J., issued the following order: "The plaintiff may reclaim its proposed ejectment after thirty days from the court’s order, issued on [July 19, 2021]. Should another stay be requested, the question of an agreement with the plaintiff may be raised only if both parties agree that the matter ought to be stayed. If there are other reasons for a stay presented, the court will hear them."

On January 25, 2022, Shalonda Mathis filed her fourth motion for a stay of execution, seeking an eight week extension. The plaintiff objected to the motion, which was taken on the papers on February 14, 2022. The court never ruled on that motion, and the ejectment date passed without action.

₅₄₁On May 10, 2022, the plaintiff filed another application for an execution of ejectment. On August 2, 2022, having received no response from the court, the plaintiff filed a caseflow request seeking an adjudication. The clerk responded: "The clerk cannot act on this proposed execution of ejectment because a motion for stay and objection remain pending on the docket. There is no information in the court record indicating the duration of any agreed upon stay or if it has ended." On September 12, 2022, the court ordered the clerk to issue the execution of ejectment.

The execution of ejectment was issued on October 18, 2022. The ejectment date was set for November 9, 2022, at 7:30 a.m. On that day, Sharon Mathis filed a bankruptcy petition pursuant to chapter 13 of the United States Bankruptcy Code, which halted the ejectment. The bankruptcy action was dismissed on November 18, 2022, following which the plaintiff obtained a new ejectment date of December 14, 2022, at 7:30 a.m. Prior to that date, Sharon Mathis filed a second chapter 13 bankruptcy petition. The plaintiff obtained relief from the automatic stay provision on January 24, 2023, and, thereafter, Sharon Mathis filed a motion for voluntary dismissal of the bankruptcy action, and that action was also dismissed.

Because more than sixty days had passed since the issuance of the most recent order of execution of ejectment, the plaintiff immediately filed an application for a new order of execution of ejectment. The defendants filed their fifth motion for a stay of ejectment on January 25, 2023, indicating their intent to file an application for a writ of audita querela—the subject of the present appeal—which they filed on January 27, 2023. The plaintiff opposed the application, arguing that such a writ should be barred by the equitable doctrines of laches and/or res judicata.

₅₄₂On March 31, 2023, the court, Baio, J., denied the defendants’ application. The court concluded that the defendants failed to prove, on the basis of the evidence presented, that the issuance of the writ was warranted. The court explained that the evidence provided did not establish "that the defendant tendered the full amount due to redeem the property prior to the law day and title vesting with the plaintiff." The defendants thereafter filed the present appeal.

On June 28, 2023, the defendants filed a motion asking the court to articulate "whether or not it found that the evidence before it established the defendants’ claim that an agreement was reached between the plaintiff and the defendants as to the defendants redeeming/satisfying the court’s judgment of strict foreclosure … including whether the court found that the defendants performed on the agreement, as they claim."

The court issued a brief order in response to the motion for articulation on July 31, 2023, stating in relevant part: "The evidence presented failed to support the position of the defendants. Specifically, the evidence presented did not support a finding of any valid agreement between the parties, let alone one that would not require full repayment prior to the law day."⁷ (Emphasis added.) Additional facts and procedural history will be set forth as necessary.

I

[1] The defendants first claim that the court improperly denied the application for a writ of audita querela on the basis of its conclusion that the evidence presented in support of the application did not support a finding ₅₄₃that the parties had reached a postjudgment agreement regarding the debt. We are not persuaded.

[2, 3] Our consideration of the defendants’ claim...