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TD BANKNORTH, N.A. v. WHITE WATER MOUNTAIN
RESORTS OF CONNECTICUT, INC., ET AL.
(AC 32639)
Gruendel, Robinson and Sullivan, Js.
Argued December 6, 2011—officially released February 14, 2012
(Appeal from Superior Court, judicial district of
Middlesex, Holzberg, J.)
Kenneth R. Leavitt, pro se, the appellant (defendant).
Robert M. Barrack, for the appellee (substitute
plaintiff).
Opinion
GRUENDEL, J. The self-represented defendant Kenneth R. Leavitt1 appeals from the August 2, 2010 judgment of strict foreclosure rendered by the trial court
in favor of the substitute plaintiff, Middlefield Holdings,
LLC.2 The defendant argues that the court improperly
denied his motion to open the judgment, failed to consider certain facts when rendering the judgment of strict
foreclosure and erred by failing to interpret his pleadings as a writ of audita querela. We affirm the judgment
of the trial court.
The following factual and procedural history is relevant to our disposition of this appeal. On August 26,
2003, White Water Mountain Resorts of Connecticut,
Inc. (White Water) executed a promissory note in the
amount of $2,000,000 in favor of TD Banknorth, N.A.
(TD Banknorth). To secure the note, White Water executed a mortgage in favor of TD Banknorth on its Powder Ridge property in Middlefield (first mortgage). On
the same date, the defendant executed a guaranty in
favor of TD Banknorth, pursuant to which he guaranteed payment of all sums due under the promissory
note. To secure the note and the guaranty, the defendant
gave TD Banknorth a mortgage on his residential property in Middlefield (residential mortgage).
On June 1, 2004, White Water executed a promissory
note in the amount of $430,000 in favor of TD Banknorth, also secured by a mortgage on the Powder Ridge
property (second mortgage). On the same date, the
defendant executed another guaranty in favor of TD
Banknorth, guaranteeing payment of all sums due under
the second note.
In November, 2005, TD Banknorth filed a three count
revised complaint seeking foreclosure of the first mortgage, the second mortgage and the residential mortgage.
On January 30, 2006, TD Banknorth filed a motion for
judgment of strict foreclosure on all three mortgages.
The defendant subsequently was defaulted for failure to
plead.3 On April 3, 2006, the court rendered an amended
judgment of foreclosure by sale with respect to the
first and second mortgages and set a sale date of April
14, 2007.
On April 6, 2007, the action was stayed due to an
involuntary bankruptcy petition filed against White
Water by three of its creditors. After obtaining relief
from the bankruptcy stay, the plaintiff filed a motion
to open the judgment on the first and second mortgages
and to set a new sale date. On April 7, 2008, the court
granted the motion to open and rendered a new judgment of foreclosure by sale for the Powder Ridge property, determining the debt to be $3,229,337.70. A sale
date of June 21, 2008, was set. The plaintiff was the
highest bidder at the foreclosure sale with a bid of $2.75
million. The court approved the sale on July 14, 2008.
On February 27, 2009, the plaintiff filed a motion
seeking strict foreclosure of the residential mortgage.
The court granted the motion and rendered a judgment
of strict foreclosure on March 30, 2009. On June 17,
2009, the defendant filed a motion to open the judgment
of foreclosure,4 which the court denied.5 On July 23,
2010, the defendant filed a motion for stay of the foreclosure action, which the court denied. On August 2, 2010,
the court rendered a new judgment of strict foreclosure
as to the defendant’s residential property, finding the
debt to be $628,134.44 and ordering law days to commence on October 4, 2010. This appeal followed.
The defendant argues first that the court improperly
interpreted his motion to open as applying only to the
April 7, 2008 judgment and, therefore, improperly
denied the motion as untimely. The defendant’s second
argument is based on his ongoing allegations of fraud,
namely, a lost subordination agreement and the sale of
personal property, and is apparently challenging the
August 2, 2010 judgment of strict foreclosure from
which he appealed.6 The defendant also argues that the
court erred in failing to consider his pleadings as a writ
of audita querela. We address each claim in turn.
I
The defendant first claims that the court improperly
denied his June 17, 2009 motion to open the judgment.
Specifically, he argues that the motion was timely filed
as to the March 30, 2009 judgment foreclosing the residential mortgage, and, if the court interpreted the
motion as seeking to open only the April 7, 2008 judgment of foreclosure as to the first and second mortgages, then that was an abuse of the court’s discretion.
We disagree that it was error to interpret the motion
to open as only directed at the April 7, 2008 judgment of
foreclosure by sale and conclude that the court properly
denied the motion.
‘‘Our courts have the inherent authority to open, correct or modify judgments, but this authority is restricted
by statute and the rules of practice.’’ Ziruk v. Bedard,
45 Conn. App. 137, 138, 695 A.2d 4, cert. denied, 243
Conn. 905, 701 A.2d 339 (1997). Pursuant to General
Statutes § 52-212a, a civil judgment may not be opened
unless a motion to open is filed within four months
following the date on which it was rendered. ‘‘When a
motion to open is timely filed, our review is limited to
whether the court has acted unreasonably or has abused
its discretion.’’ (Internal quotation marks omitted.) Federal Ins. Co. v. Gabriele, 54 Conn. App. 459, 461, 735
A.2d 368 (1999). When a motion to open is untimely,
the trial court lacks authority to open the judgment.
Citibank, N.A. v. Lindland, 131 Conn. App. 653, 660–61,
27 A.3d 423, cert. granted on other grounds, 303 Conn.
906, 31 A.3d 1180 (2011). Whether the court properly
determined that it lacked authority to open the judg-
ment of strict foreclosure presents a question of law
over which our review is plenary. See Falls Mill of
Vernon Condominium Assn., Inc. v. Sudsbury, 128
Conn. App. 314, 318, 15 A.3d 1210 (2011).
We first address the plaintiff’s contention that this
issue is not properly before this court. The plaintiff
argues that any arguments raised by the defendant
based on the June 17, 2009 denial of the motion to open
are not properly before this court because the defendant
did not appeal from that judgment. The appeal form,
filed on August 25, 2010, states that the defendant is
appealing from the ‘‘judgment of strict foreclosure.’’
Because the defendant failed to appeal from the June
17, 2009 judgment within twenty days as required by
Practice Book § 63-1,7 the plaintiff claims that any
appeal from that judgment is untimely and cannot be
raised as a ground for appeal.
Although the defendant’s preliminary statement of
the issues, filed on September 2, 2010, does not raise
arguments relating to the denial of the motion to open,
the defendant’s statement of the issues in his brief, filed
on March 18, 2011, lists as the first issue the trial court’s
error in denying the motion to open. The plaintiff was
required to challenge that ground for appeal within ten
days after the filing of the appeal pursuant to Practice
Book § 66-8.8 See Connecticut Commercial Lenders,
LLC v. Teague, 105 Conn. App. 806, 808–809, 940 A.2d
831 (2008); Chase Manhattan Mortgage Corp. v.
Machado, 83 Conn. App. 183, 185 n.3, 850 A.2d 260
(2004); Savage v. Savage, 25 Conn. App. 693, 694 n.1,
596 A.2d 23 (1991). Consequently, the plaintiff has
waived its right to seek dismissal of the defendant’s
arguments relating to his motion to open as an
untimely appeal.
It is the defendant’s contention that his motion to
open was directed at both the judgment of foreclosure
by sale of the first and second mortgages and the strict
foreclosure judgment of the residential mortgage. The
court’s articulation makes clear that the court interpreted the motion to open as applying only to the judgment
of foreclosure by sale of the first and second mortgages.
We therefore must determine whether the court properly determined that the motion to open applied only
to the April 7, 2008 judgment of foreclosure by sale.
The defendant’s motion to open presents the long
and convoluted history of this litigation, and the various
theories of fraud that the defendant consistently has
alleged. The motion to open argues that ‘‘the extent of
corrupt practices by town officials was so significant
and central to the case at hand as to warrant a reopening
of the foreclosure matter involving the Powder Ridge
Ski Area . . . .’’ The motion states that ‘‘due process
calls for the foreclosure action of Powder Ridge Ski
Area to be vacated by the court . . . .’’ The motion,
approximately twenty pages long, mentions only in
passing the judgment of strict foreclosure on the residential mortgage and does not request that the judgment
be opened. On its face, the motion plainly seeks to open
only the April 7, 2008 judgment of foreclosure by sale
on the first and second mortgages.
Moreover, the plaintiff correctly argues that at the
time that the defendant filed his motion to open, the
court had already granted an earlier motion to open
filed by Mortgage Electronic Registration Systems, Inc.
(Mortgage Electronic). On May 21, 2009, after the court
had rendered the judgment of strict foreclosure as to
the residential mortgage, Mortgage Electronic filed a
motion to open the judgment of strict foreclosure,
claiming that its mortgage on the property had partial
priority to the plaintiff’s mortgage under the doctrine
of equitable subrogation. The court granted the motion
on May 26, 2009. When the defendant filed his June 17,
2009 motion to open, the judgment already had been
opened. Therefore, we conclude that the defendant’s
motion to open was only directed at the April 7, 2008
judgment of foreclosure by sale.9
We conclude further that the court properly denied
the motion to open as to the April 7, 2008 judgment of
foreclosure by sale. ‘‘A motion to open a judgment of
foreclosure by sale is typically subject to two restrictions. . . . First, a motion to open a judgment of foreclosure by sale must be filed within the four month
restriction of General Statutes § 52–212a. . . . [T]he
second restriction on a motion to open a judgment of
foreclosure by sale is that it must be filed before absolute title left the property owner, which [in the case in
which the motion is filed by the holder of the equity
of redemption] means before the committee sale was
approved.’’ (Citations omitted; internal quotation marks
omitted.) Citibank, N.A. v. Lindland, supra, 131 Conn.
App. 660–62.
The defendant filed the motion to open on June 17,
2009, well outside the four month period following the
April 7, 2008 judgment. Moreover, the sale was
approved on July 14, 2008. The motion to open was
untimely filed under either restriction articulated by
this court in Citibank, N.A. v. Lindland, supra, 131
Conn. App. 660–62. Therefore, the court was without
authority to open the judgment and properly denied
the motion.
II
The defendant attempts to challenge the judgment
of strict foreclosure on two grounds. He argues in his
motion to open, and again in this appeal, that it was
improper for the court not to consider the plaintiff’s
sale of personal property located at the Powder Ridge
property that the defendant alleges was commercially
unreasonable. The defendant also argues that the judgment of strict foreclosure was improper in light of a
subordination agreement that allegedly demonstrates
that the plaintiff improperly represented its mortgage
on the residential property as having first priority. We
do not reach the merits of these arguments because a
default judgment was entered against the defendant.
‘‘In order for foreclosure cases to move as swiftly as
possible through our court system, it is imperative that
a defendant disclose any defenses to the mortgage debt
prior to the hearing.’’ Suffield Bank v. Berman, 25 Conn.
App. 369, 373, 594 A.2d 493, cert. dismissed, 220 Conn.
913, 597 A.2d 339, cert. denied, 220 Conn. 914, 597 A.2d
340 (1991). ‘‘The entry of a default constitutes an admission by the [defaulted party] of the truth of the facts
alleged in the complaint.’’ (Internal quotation marks
omitted.) Motherway v. Geary, 82 Conn. App. 722, 728,
846 A.2d 909 (2004). Practice Book § 17-33 (b) provides
in relevant part that ‘‘the effect of a default is to preclude
the defendant from making any further defense in the
case so far as liability is concerned . . . .’’ It also provides that ‘‘at or after the time it renders the default,
[the judicial authority] may also render judgment in
foreclosure cases . . . provided the plaintiff has also
made a motion for judgment and provided further that
any necessary affidavits of debt or accounts or statements verified by oath, in proper form, are submitted
to the judicial authority.’’ Practice Book § 17-33 (b).
On November 4, 2010, the defendant filed a motion
for articulation as to the judgment of strict foreclosure.
The defendant requested that the court articulate if the
entry of a default judgment against the defendant was
a factor in awarding strict foreclosure and also posited
to the court that a default judgment was unfair in light
of events that transpired after the entering of the default
judgment. The court responded that the default judgment was ‘‘necessarily a factor in entering the judgment
of strict foreclosure as such judgment is predicated on
the entry of a default or admission of liability.’’ The
court also responded that any material changes in
events and circumstances following the entry of default
‘‘did not justify the opening of a judgment and vacating
of a default, assuming the court had authority in the
first instance, to set aside a default entered four years
earlier and a judgment entered almost one year prior
to the motion to open having been filed.’’
The court granted the plaintiff’s motion for default
for failure to plead on February 7, 2006. The effect of
the default was to preclude the defendant from making
any defense to liability for the claims asserted in the
complaint and to permit the entry of judgment in the
plaintiff’s favor. See Practice Book § 17-33 (b). Thereafter, the plaintiff filed a motion for a judgment of strict
foreclosure, which was granted. The court was not
required to address the arguments of a defaulted party
as to issues of liability. Therefore, it was proper for
the court not to take the circumstances alleged by the
defendant into consideration, as explained in the
court’s articulation.
III
The defendant also argues that the court erred by
failing to consider his pleadings as a writ of audita
querela. The defendant did not file a writ of audita
querela with the trial court, and therefore this argument
is not properly before us.
‘‘The writ of audita querela provides relief from a
judgment at law because of events occurring subsequently which should cause discharge of a judgment
debtor.’’ (Internal quotation marks omitted.) Ames v.
Sears, Roebuck & Co., 206 Conn. 16, 21, 536 A.2d 563
(1988). ‘‘The ancient writ of audita querela has been
defined as a writ issued to afford a remedy to a defendant against whom judgment had been rendered, but
who had new matter in defense (e.g., a release) arising,
or at least raisable for the first time, after judgment.
. . . Because the writ impairs the finality of judgments,
the common law precluded its use in cases in which
the judgment debtor sought to rely on a defense such
as payment or a release that he had the opportunity to
raise before the entry of judgment against him.’’ (Internal quotation marks omitted.) Anthony Julian Railroad
Construction Co. v. Mary Ellen Drive Associates, 50
Conn. App. 289, 294, 717 A.2d 294 (1998).
The defendant did not file a writ of audita querela
with the trial court.10 A writ of audita querela is filed
with the court that rendered the judgment complained
of. Young v. Young, 78 Conn. App. 394, 395–96, 827
A.2d 722 (2003); Ames v. Sears, Roebuck & Co., supra,
206 Conn. 19–20; 7 Am. Jur. 2d, Audita Querela § 5
(2007). Because the defendant did not distinctly raise
the claim of audita querela in the trial court, we need
not address here the vitality of that writ in this case.
See Lashgari v. Lashgari, 197 Conn. 189, 201 n.7, 496
A.2d 491 (1985). Thus, we do not address this argument
as it was not presented to the trial court.
The judgment is affirmed and the case is remanded
for the purpose of setting new law days.
In this opinion the other judges concurred.
1
White Water Mountain Resorts of Connecticut, Inc., Powder Ridge Restaurant Corporation, White Water Mountain Resorts, Inc., and several subsequent encumbrancers were also named as defendants in this action. Because
none of these defendants is a party to this appeal, we refer in this opinion
to Leavitt as the defendant and refer to the other defendants by name.
We note at the outset that the defendant, although represented by counsel
initially, filed an appearance as a self-represented party on May 26, 2009.
‘‘Although we are mindful of our policy to be solicitous of pro se litigants
. . . such policy is applicable only when it does not interfere with the rights
of other parties. Although our courts allow pro se litigants some latitude,
the right of self-representation provides no attendant license not to comply
with relevant rules of procedural and substantive law.’’ (Citation omitted;
internal quotation marks omitted.) Shah v. Administrator, Unemployment
Compensation Act, 114 Conn. App. 170, 177, 968 A.2d 971 (2009). The defendant’s failure to comply with procedural requirements in this matter ‘‘demonstrates that a pro se party who, unskilled in such matters, seeks to remedy
some claimed wrong by invoking processes which are at best technical and
complicated, is very ill advised and assumes a most difficult task.’’ (Internal
quotation marks omitted.) Raffone v. Industrial Acceptance Corp., 119 Conn.
App. 261, 265 n.2, 987 A.2d 1059 (2010).
2
In November, 2006, the plaintiff TD Banknorth, N.A., assigned its interest
in the subject notes and mortgages to Middlefield Holdings, LLC, which was
substituted as the plaintiff in place of TD Banknorth, N.A., in January,
2007. Accordingly, we refer in this opinion to Middlefield Holdings, LLC, as
the plaintiff.
3
The defendant did not, at any time, file a motion to set aside the default
pursuant to Practice Book § 17-42. White Water, Powder Ridge Restaurant
Corporation, White Water Mountain Resorts, Inc., Fuss and O’Neil, Inc., and
Mortgage Electronic Registration Systems, Inc., were also defaulted for a
failure to plead.
4
The defendant argues in this appeal that the motion to open was directed
both at the April 7, 2008 foreclosure by sale judgment rendered as to the first
and second mortgages and the March 30, 2009 strict foreclosure judgment
rendered as to his residential mortgage.
5
On February 8, 2011, the court issued an articulation explaining its
reasons for denying the defendant’s motion to open. The court’s articulation
demonstrates that the court believed that the defendant’s motion to open
was directed only at the April 7, 2008 foreclosure by sale judgment rendered
as to the first and second mortgages. The court articulated that the defendant’s motion to open that judgment was untimely, as it was not filed until
well outside the four month period provided for by statute.
6
The defendant also argues that that the court should have held an evidentiary hearing before rendering the August 2, 2010 judgment. Practice Book
§ 23-18 (a) provides that ‘‘[i]n any action to foreclose a mortgage where no
defense as to the amount of the mortgage debt is interposed, such debt may
be proved by presenting to the judicial authority the original note and
mortgage, together with the affidavit of the plaintiff or other person familiar
with the indebtedness, stating what amount, including interest to the date
of the hearing, is due, and that there is no setoff or counterclaim thereto.’’
Mortgage Electronic Registration Systems, Inc., filed an objection to proceeding to judgment by means of an affidavit of debt pursuant to Practice
Book § 23-18 and requested an evidentiary hearing. The court overruled the
objection in part because Mortgage Electronic Registration Systems, Inc.,
was also defaulted and, like the defendant, could not raise defenses to the
amount or calculation of the debt. The defendant, however, never requested
an evidentiary hearing, and therefore the issue is not properly before us.
7
A denial of a motion to open filed outside of the twenty day appeal
period but within the four month period provided for by statute; see General
Statutes § 52-212a; is an appealable final judgment. See Morelli v. Manpower,
Inc., 226 Conn. 831, 835, 628 A.2d 1311 (1993); First Connecticut Capital,
LLC v. Homes of Westport, LLC, 112 Conn. App. 750, 755–60, 966 A.2d 239
(2009); C. Tait & E. Prescott, Connecticut Appellate Practice and Procedure
(3d Ed. 2000) § 3.13, p. 103.
8
Practice Book § 66-8 provides in relevant part: ‘‘Any claim that an appeal
or writ of error should be dismissed, whether based on lack of jurisdiction,
failure to file papers within the time allowed or other defect, shall be made
by a motion to dismiss the appeal or writ. Any such motion must be filed
in accordance with Sections 66-2 and 66-3 within ten days after the filing of
the appeal or the return day of the writ, or if the ground alleged subsequently
occurs, within ten days after it has arisen . . . .’’ (Emphasis added.)
9
We note the distinction between a motion to open a judgment of foreclosure by sale and a judgment of strict foreclosure. While a judgment of
foreclosure by sale is subject to the provisions of General Statutes § 52212a; see Citibank, N.A. v. Lindland, supra, 131 Conn. App. 660–61; the
opening of judgments of strict foreclosure is governed by General Statutes
§ 49-15. Under that provision, a judgment of strict foreclosure may be opened
for cause shown but may not ‘‘be opened after the title has become absolute
in any encumbrancer . . . .’’ General Statutes § 49-15 (a) (1); see also Falls
Mill of Vernon Condominium Assn., Inc. v. Sudsbury, supra, 128 Conn.
App. 319–20. Because we conclude that the motion to open was directed
solely at the judgment of foreclosure by sale, the timeliness of the motion
is determined by § 52-212a.
10
To the extent that the defendant argues that the court should have sua
sponte identified his pleadings as a writ of audita querela, we disagree. A writ
of audita querela affords a remedy to a defendant against whom judgment has
already been rendered. Anthony Julian Railroad Construction Co. v. Mary
Ellen Drive Associates, supra, 50 Conn. App. 294. The defendant’s pleadings,
in particular his motion to open, were filed before the court rendered its
judgment of strict foreclosure on August 2, 2010. Because the defendant
could not file a writ of audita querela before the entry of judgment against
him, the court did not err in not considering his prejudgment pleadings a
writ of audita querela.
