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MUN v. VINCENT R. DORIA

Connecticut Superior Court Judicial District of Stamford-Norwalk at Stamford
Sep 19, 2007
2007 Ct. Sup. 15843 (Conn. Super. Ct. 2007)

Opinion

No. FST CV 04 4001719

September 19, 2007


MEMORANDUM OF DECISION ON MOTION TO LIFT STAY


The Appellate Court sent a motion to lift the stay to this court for a hearing and a decision. A hearing was held September 5, 2007. Briefs were submitted. The plaintiff moves to lift the stay because the defendant continues to live in the property in question without having made any payments, and because taxes to the town remain unpaid. The plaintiff claims the appeal was taken to avoid payment. The defendant denies this and argues anew his original claim of fraud.

This court found for the plaintiff on the foreclosure complaint and held that the defendant failed to prove the allegation of fraud in his special defense and counterclaim. The court recommended the plaintiff claim the case for the foreclosure short calendar to set a date, the total amount of the debt, and other appropriate orders. The plaintiff did file a motion for strict foreclosure which does not appear on the record to have been heard. At that point the defendant appealed this court's decision to the Appellate Court. That court received the motion to lift the stay and sent it here for decision.

There are a number of Appellate court cases holding that if the trial court has yet to determine the amount of the debt, the attorneys fees, or whether the foreclosure is to be strict or by sale, the "judgment is interlocutory in nature and is not a final judgment." Essex Savings Bank v. Frimberger, 26 Conn.App. 80, 81, 597 A.2d 1289 (1991). The setting of law days is necessary for a final judgment. Connecticut National Bank v. L. R. Realty, 40 Conn.App. 492, 671 A.2d 1315 (1996). The court must "determine the amount of the debt, direct a foreclosure and fix the law days." Supra, p. 494. If the decision does not include the setting of law days, "it is not a final judgment for the purpose of appeal." Supra p. 495. "The lack of a final judgment is a jurisdictional defect." Supra, p. 495.

In Benvenuto v. Mahajan, 245 Conn. 495, 715 A.2d 743, (1988) our Supreme Court recently excluded the finding of attorneys fees from these holdings without affecting the balance of the opinions concerning the amount of debts, the kind of foreclosure and the setting of law days. In a subsequent case, the Appellate Court held that after Benvenuto, until law days are set, the parties' rights are not concluded, and a strict foreclosure judgment still cannot be final. Willow Funding Co., L.P. v. Greencom Assoc., 63 Conn.App. 832, 837, 779 A.2d 174 (2001).

It is not the position of this court — nor does it have the power — to determine whether the Appellate Court has jurisdiction over the appeal in question. Nevertheless, for the limited purpose of determining the motion forwarded here by the Appellate Court, this court cannot overlook nor evade the above cases which are binding upon it.

It therefore appears that the appeal was taken before the plaintiff had the opportunity to secure the final orders that will support an appeal and a stay. Because it is premature — because there is no final judgment, this court sees no support for a valid appeal. Without a final judgment there can be no valid appeal — and therefore, no valid stay.

Accordingly, the plaintiff is free to pursue the final orders that will support a final judgment. The motion to lift the stay is therefore, under the circumstances denied.


Summaries of

MUN v. VINCENT R. DORIA

Connecticut Superior Court Judicial District of Stamford-Norwalk at Stamford
Sep 19, 2007
2007 Ct. Sup. 15843 (Conn. Super. Ct. 2007)
Case details for

MUN v. VINCENT R. DORIA

Case Details

Full title:CHOONG MUN ET AL. v. VINCENT R. DORIA, LLC ET AL

Court:Connecticut Superior Court Judicial District of Stamford-Norwalk at Stamford

Date published: Sep 19, 2007

Citations

2007 Ct. Sup. 15843 (Conn. Super. Ct. 2007)