Opinion
No. CV 04 0083714 S
July 24, 2006
MEMORANDUM OF DECISION RE MOTION TO QUASH AND APPLICATION FOR WRIT OF AUDITA QUERELA CLAIM FOR EXEMPTION FROM EXECUTION
The procedural history of this lawsuit and related litigation present an interesting case study in how successful legal maneuvering can effectively delay the inevitable. What began as a relatively routine action for strict foreclosure has morphed into what may become a foreclosure and/or summary process defendant's playbook for delay. The triggering event began on July 24, 2000. The plaintiff. National Mortgage Corporation (National), filed a foreclosure action against Helen Savoie as a result of her nonpayment of a mortgage note which she executed on January 15, 1999. The court file reflects that Helen Savoie actively contested the foreclosure, although she never offered a valid defense. The extent of her contest to the action had the effect of delaying the final judgment until December 15, 2003, almost five years after the action was commenced. In the course of that case, she filed three bankruptcy petitions all of which were dismissed. After the passing of the final law day, an execution for ejectment was issued against Helen Savoie on February 4, 2004. She was not, however, removed from the property at that time and, in fact, remains to this day.
National Mortgage Corp. v. Savoie, Superior Court, judicial district of Tolland, Docket No. CV00 0073620.
The foreclosure action was filed against Savoie, the owner of the property, as well as subsequent encumbrancers. For reasons discussed in this memorandum, there has been much confusion in the course of this case, a summary process action, as to whether Helen Savoie was ever a defendant.
An affidavit filed by one of the plaintiff's loan servicing agents, in support of its motion for summary judgment in the foreclosure action, stated that interest was owed since July 1, 1999. Therefore, payment on the loan was stopped within a few months after the loan and mortgage were issued.
Judgments of strict foreclosure were entered on August 20, 2001, October 21, 2002 and June 23, 2003. The judgments were opened and new law dates set on September 17, 2001, February 19, 2002, April 29, 2002 and December 15, 2003. During the action Savoie filed three bankruptcy petitions which stayed the proceedings. The first two were dismissed for cause pursuant to 11 U.S.C. § 1307(c). The third was dismissed by the court with prejudice.
Subsequent executions for ejectment have also been issued on March 24, 2005 and October 31, 2005.
After apparently learning of the presence of other persons residing on the premises who were not named in the foreclosure complaint, National brought the current summary process action. A notice to quit was served on February 9, 2004 and the action was commenced on February 23, 2004. The complaint named John Doe a/k/a Joseph Faulkner, Jane Doe a/k/a Yolanda Faulkner, John Doe II and Jane Doe II as defendants. Helen Savoie was not named in either the notice to quit or the complaint as a defendant.
Although the plaintiff indicates they were not sure who was residing on the premises when the summary process action began, it appears that Yolanda and Joseph Faulkner, the daughter and son-in-law of Helen Savoie and her husband, Desire Savoie, were all tenants or occupants of 166 Grier Road, Vernon at the time.
Yolanda Faulkner is Helen Savoie's daughter and Joseph Faulkner is her son-in-law. John Doe II is apparently Desire Savoie, husband of Helen Savoie. Although the plaintiff has maintained otherwise, it is unclear who Jane Doe II was meant to be if not Helen Savoie.
On June 29, 2004, all four defendants were defaulted and a judgment of possession was granted. On July 9, 2004, Yolanda Faulkner filed a pro se appearance and filed an answer with a special defense. She also filed a motion to open the judgment, asserting that her mother, Helen Savoie, is elderly and disabled and her father, Desire Savoie, has dementia. She also alleged that she had financing and would like to purchase the home. The motion to open was scheduled on three occasions, with the court granting a final continuance until August 6, 2004. On that date, the matter was continued until August 20, 2004 and Yolanda Faulkner was ordered to pay $800 biweekly use and occupancy. Affidavits filed by the attorneys for National have attested that the money was not paid. The motion to open was not heard or decided until December 9, 2005 when it was denied by the court, Fuger, J.
The file reflects that the hearing on her motion to open was scheduled for July 23, 2004, July 30, 2004 and a "final continuance" was granted until August 6, 2004. The file does not reflect definitively that it was Faulkner who requested the continuances but the final continuance order, Hammer, J. states that "counsel must be present with the defendant — no exceptions." In addition, the court's October 22, 2004 notice, rescheduling the hearing for October 29, 2004, states that "Yolanda Faulkner, Helen Savoie and Desire Savoie are required to be in attendance. No Exceptions." It is also clear that Faulkner failed to appear for other hearings, until finally, on June 22, 2005, she was ordered to appear on July 1, 2005 and that "no excuses will be accepted, and her absence will subject her to . . . civil and/or criminal sanctions . . . by the court, Hammer, J."
None of the other defendants ever joined in the motion to open, so the judgment remained final as to them. Appearances were filed for both the John and Jane Doe defendants, as well as for Helen and Desire Savoie, although neither were specifically named as defendants. Both Savoies continued to file various motions which were opposed by National despite the fact that the default judgments against them were final. Desire Savoie was never a named party and, as previously noted, it has always been unclear whether Helen Savoie was intended to be a party.
None of the motions and objections thereto are properly before this court and will, therefore, not be discussed.
Subsequent to the entry of the default judgment, on August 9, 2004, Helen Savoie filed a claim of exemption. The claim alleged that although she was an occupant of the property, she was not served with the notice to quit or complaint and was not named as a party. She also filed a motion to dismiss on this basis. National opposed the motions arguing that Helen Savoie did not need to be a party to this summary process action because her interests were already determined by the execution for ejectment in the foreclosure action. National further argued that the Jane Doe II designation was not intended to include Helen Savoie, but was included with the other Doe designations because of other individuals who may have been living on the premises.
Although it maintained that Helen Savoie was not named as a party and need not be, National nonetheless filed a withdrawal of action as to her. Curiously, it then filed a motion to cite in Helen Savoie and had her served with a new notice to quit and complaint which named her as a party. National continues to take the position that it was not necessary to extinguish any rights to occupancy of Helen Savoie because her rights had previously been extinguished in the foreclosure action.
Shortly after the entry of the default judgment on June 29, 2004, Yolanda Faulkner, on July 9, 2004, filed a motion to open which remained unresolved until December 9, 2005, when it was claimed for decision by the court upon the request of National. Also on December 9, 2005, in addition to denying the motion to open, the court issued an execution for possession against "John Doe I a/k/a Joseph Faulkner, John Doe II a/k/a Desire Savoie and Jane Doe I a/k/a Yolanda Faulkner. The same day both Savoies filed an application for a writ of audita querela seeking to quash the execution and an application for an ex parte temporary restraining order. The ex parte restraining order was issued by the court, Fuger, J., on that date, ordering National not to evict the Savoies pending a ruling on the application for the writ of audita querela.
The only matters presently before this court for resolution are (1) the claim of exemption filed by Helen Savoie and (2) the application for a writ of audita querela filed by the Savoies. More particularly, Desire and Helen Savoie seek a writ of audita querela quashing the execution. In support of their application, they argue that the execution is improper because General Statutes § 47a-41a prohibits the issuance of an execution more than six months after judgment enters unless the action has been stayed. In that the judgment was entered on June 29, 2004 and no formal stay was issued, they maintain that the court had no authority to issue the execution on December 9, 2005, almost eighteen months later. The Savoies also argue that the execution was improper because Helen Savoie has an outstanding claim of exemption. They further argue that because National withdrew the claim against Helen Savoie and she still resides in the premises, the execution is improper because it can only issue against all known occupants.
Helen Savoie may not validly bring the application for a writ of audita querela because the judgment was not against her and the execution did not issue against her. Despite this fact, if the writ is issued on behalf of Desire Savoie only, it will still have the same practical effect of continued occupancy, by all the defendants.
National has consistently countered that it is not necessary to issue the execution against Helen Savoie because her rights were adjudicated in the foreclosure action and she is subject to a separate execution for ejectment pursuant to the judgment of strict foreclosure entered therein. National also maintains that because she is not a party to this proceeding, Helen Savoie has no right to move to quash the execution.
National further argues that because Yolanda Faulkner filed a motion to open the judgment on July 9, 2004, and because all the parties filed numerous motions since then, this action was, in effect stayed by the pendency of the motion to open. In addition, National asserts that on numerous occasions, the court, Hammer, J., expressly said that he was keeping the file in his chambers, that the clerk could take no action on the file without his approval and that he was using his equitable powers to stay enforcement of the judgment.
Although counsel for National represented in open court at the hearing held on February 16, 2006, that it would submit a transcript in support of this assertion, he has not done so. The court notes that National submitted a supplemental memorandum on March 2, 2006 and was present in court for a final hearing on this case on March 6, 2006 and no transcript or other evidence on the issue of a stay has been submitted.
Finally, the Savoies argue that because they are elderly and disabled and have no other place to live, it would be inequitable to make them leave. National responds that because the defendants have unclean hands, and have done nothing but to delay and thwart both the foreclosure and this action, it would be inequitable to further delay this action beyond the six years in which the defendants have remained on the property rent free.
"Audita querela is a remedy granted in favor of one against whom execution has issued on a judgment, the enforcement of which would be contrary to justice because of (1) matters arising subsequent to its rendition, or (2) prior existing defenses that were not available to the judgment debtor in the original action, or (3) the judgment creditors fraudulent conduct or circumstances over which the judgment debtor had no control." Oakland Heights Mobile Park, Inc. v. Simon, 40 Conn.App. 30, 32, 668 A.2d 737 (1995). "The writ of audita querela provides relief from a judgment at law because of events occurring subsequently which would cause discharge of a judgment debtor. . . . A writ of audita querela depends upon a showing of new matter in defense . . . arising, or at least raisable for the first time, after judgment . . . Its use is most common in summary process judgments." (Citation omitted; internal quotation marks omitted.) First National Bank Of Chicago, Trustee v. Jansson, Superior Court, Housing Session, judicial district of Fairfield, Docket No. SPBR-9508 30174 (July 21, 1996, Tierney, J.). "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 . . . that he had the opportunity to raise before the entry of judgment against him . . . No authority suggest[s] that the writ of audita querela was ever available to present issues which were presented before the entry of the judgment attacked by the writ." (Citation omitted; internal quotation marks omitted.) Ames v. Sears, Roebuck Co., 206 Conn. 16, 20, 536 A.2d 563 (1988).
I The Savoies argue that a writ of audita querela should issue because the execution was issued before Helen Savoie's claim of exemption was decided. They also argue that the execution did not issue against all known occupants because it omitted Helen Savoie. National argues that it was not necessary to execute against Helen Savoie because she was subject to the execution for ejectment which issued in the foreclosure action. General Statutes § 47a-26h(c) provides, in relevant part, that "[a]ny occupant not named in the action who claims not to be subject to the summary process action because his occupancy commenced prior to service of the notice to quit or his occupancy commenced or continued with the consent of the plaintiff or under a right to occupy equal or superior to the rights of the plaintiff may, at any time before or after judgment but prior to issuance of an execution, file under oath a claim of exemption from such action . . . Upon the filing of such a claim, the clerk shall schedule a hearing, which shall be held not more than seven days after the date of filing." Helen Savoie did file a claim for exemption after the judgment of possession ordered on June 29, 2004, but prior to issuance of the execution. As was prevalent in this matter and in the earlier foreclosure, this claim was raised but not pursued, so the hearing was continued and never held. Section 47a-26h(c) further provides: "Execution shall not issue until the court renders its decision on the claim." In this matter, because the claim of exemption was not pursued, the execution did issue, on December 9, 2005, prior to any decision on Helen Savoie's exemption claim.In addition, General Statutes § 47a-26h(a)(3) provides that a summary process judgment binds all known occupants of the property who were there prior to service of the notice to quit and who were properly named and served with the notice to quit and the writ, summons and complaint. Therefore, a summary process judgment is not binding on those occupants not properly named and served. Finally, General Statutes § 47a-26h(c) provides that "no summary process execution shall be issued or enforced unless valid execution has been issued against all occupants of the premises . . ." General Statutes § 47a-26h(d) provides, that "[n]othing in this section shall in any way limit other remedies available in law or equity . . ."
Although Helen Savoie, through counsel, injected herself into this case by assuming the role of "Jane Doe II," and filing a claim of exemption, by the time the summary process action was commenced, Helen Savoie's rights to the property had already been extinguished through the foreclosure. Numerous executions for ejectment against her had issued. Once the interest of the owner of property has been extinguished through foreclosure, nothing in our law mandates that the owner's interest must again be extinguished in a summary process action brought against the other occupants. Common sense dictates otherwise.
In the context of extinguishing the interests of a tenant or occupant, the tenant or occupant can either be named as a party in the foreclosure action and ousted through the execution of ejectment, or a summary process action may be brought after the judgment of foreclosure pursuant to General Statutes § 47a-23 et seq. and execution as to those named in the summary process action may thereafter issue. "[A] foreclosing mortgagee . . . has two options for obtaining possession of premises from a tenant. The mortgagee can name the tenant as a party in the foreclosure action and obtain a judgment of ejectment pursuant to General Statutes § 49-22, or after obtaining title, the mortgagee can proceed with a summary process action pursuant to § 47a-23." Federal Home Loan Mortgage Corp. v. Van Sickle, 52 Conn.App. 37, 42, 726 A.2d 600 (1999); Tappin v. Homecomings Financial Network, 265 Conn. 741, 759, 830 A.2d 711 (2003). The foreclosing mortgagee does not have to employ both procedures. It is sometimes necessary to pursue summary process after foreclosure when the foreclosing party does not know of the existence of all occupants at the time of foreclosure. It is not, in most cases, necessary to pursue both actions when dealing with the interests of an occupant. Likewise, there is no logical reason that both procedures have to be duplicated when dealing with the interests of the owner. Therefore, although Helen Savoie's claim of exemption was not decided when the execution issued, her interests had already been extinguished and there was no reason for National to proceed against her. The confusion began when the issue of the claim of exemption was left unresolved by the parties and the plaintiff subsequently filed a withdrawal, not against Jane Doe II who they did name as a party defendant but against Helen Savoie, who they did not. Since Helen Savoie is technically exempt from the summary process action, her motion for claim of exemption is hereby granted. However, since she has never been properly made a party to this action the motion for a writ of audita querela as to Helen Savoie is denied.
See Farmers Mechanics Bank, v. Kneller, 40 Conn.App. 115, 117 n. 1, 670 A.2d 324 (1996).
See Tappin v. Homecomings Financial Network, 265 Conn. 741, 743, 830 A.2d 711 (2003); See also General Statutes § CT Page 13703 49-22(a).
This confusion was compounded by the plaintiff when, on July 18, 2005, it filed a motion to cite in Helen Savoie as a party defendant, a motion for which they never sought action by the court. In addition to it being unnecessary to proceed against Helen Savoie, General Statutes § 47a-26h(c) provides, in relevant part: "The court shall determine whether the claimant is bound by the action and, if the court finds that the claimant is not bound, it shall declare the claimant to be exempt from the action. In order to obtain a judgment for possession of the premises as part of such action the plaintiff shall serve the previously exempt occupant with a notice to quit possession pursuant to section 47a-23. If the occupant is still in possession after the date to quit possession has passed, the plaintiff shall serve the occupant with an amended writ summons and complaint adding the occupant as a party defendant to such action of summary process." National served Helen Savoie with a notice to quit on July 11, 2005, and thereafter filed a motion to cite her in as a party defendant on July 18, 2005. Although the motion does not indicate that it was acted on by the court, the plaintiff served her with the proposed amended summary process complaint on July 25, 2005, despite the fact that her claim of exemption remained outstanding.
II CT Page 13699
Since Desire Savoie also moved for a writ of audita querela, it remains for the court to resolve this motion as to him. A default judgment entered as to Desire Savoie (John Doe II), along with the Faulkners, on July 29, 2004. He claims that the writ should issue for the reason that the execution issued pursuant to that judgment is stale in that it was issued more than six months after the judgment entered and no stay was issued by the court. See General Statutes § 47a-41. National argues that the judgment was stayed by Yolanda Faulkner's pending motion to open and by all the pleadings filed by, and actions of, the defendants. National also argues that Judge Hammer, in effect stayed the action.General Statutes § 47a-41a provides: "An execution to enforce a summary process judgment shall not be issued after the expiration of six months from the date such judgment was entered, except that any period during which execution was stayed shall be excluded from the computation of the period of limitation." There are specific provisions in the summary process statutes which address a stay of execution, none of which were followed by the defendants herein. See General Statutes § 47a-37 et seq. Further, no formal motion for stay of the execution was filed by either party and no order for stay was ever entered by the court. Therefore, although a default judgment entered on June 29, 2004, no execution was issued by the clerk until December 9, 2005 and the file does not reflect that a stay of execution was ever formally entertained or entered by the court.
As previously stated, Yolanda Faulkner filed a timely motion to open on July 9, 2004, which motion was not resolved until December 9, 2005, when it was denied by the court, Fuger, J. Although the filing of a motion to open acts to toll the running of the time within which an appeal of a judgment must be filed, it does not have the effect, in general, of staying the enforcement of a judgment. "It is a well settled principle of law in this state that the mere filing of a motion to reopen the judgment does not result in an automatic stay." (Internal quotation marks omitted.) Farmers Mechanics Bank v. Kneller, 40 Conn.App. 115, 122, 670 A.2d 324 (1996). In the specific context of eviction proceedings, when a defendant argued that his filing of a motion to open suspended the plaintiff's judgment of possession, the court stated that "[t]he filing of a motion to open, however, does not stay execution of the judgment." Lopez v. Livingston, 53 Conn.App. 622, 625 n. 6, CT Page 13700 731 A.2d 335 (1999). "[T]he filing of such a motion [to open a judgment of possession] does not stay execution of the judgment because the legislature has expressly provided, in detail, rules controlling the issuance and the extent of stays in summary process cases." Maccio v. Hundley, 36 Conn.Sup. 623, 625-26, 422 A.2d 953 (App.Sess. 1980).
See Practice Book § 63-1(c)(1); see also RAL Management, Inc. v. Valley View Associates, 88 Conn.App. 430, 437, 872 A.2d 462 (2005), rev'd on other grounds, 278 Conn. 672, 899 A.2d 586 (2006).
Although National has argued that Judge Hammer ordered a stay of this action, it presented no evidence to that effect, and, as discussed previously, although legal counsel for National stated in open court that he would produce a transcript of a hearing before Judge Hammer during which Judge Hammer reportedly stated that he was exercising his "equitable powers to stay this action," no such transcript has been produced to the court. In fact, an evidentiary hearing was scheduled in this matter on February 16, 2006 at which time the parties represented that no evidence was necessary because they agreed on the essential facts. However, there is clearly disagreement on the issue of whether a stay of this case was ever instituted by Judge Hammer. Without deciding whether an informal stay of execution, for a period approximating eighteen (18) months, is permissible in a summary process action, National has failed to produce anything to the court in support of this claim.
"Normal equitable considerations are used in [requests for writs of audita querela in] summary process cases." First National Bank Of Chicago, Trustee v. Jansson, supra, Superior Court, Housing Session, Docket No. No. SPBR-9508 30174.
The court is not unsympathetic to the plight of National which has been pursuing, in two actions, their ownership rights as to the property for approximately six years. Although the defendants' dilatory actions in both the foreclosure and summary process actions has forestalled National's ability to take possession of the premises, National is not without blame for the delay. Any party has the ability to claim unresolved motions for resolution by the court in an effort to move the proceedings to conclusion. Therefore, there is little doubt that with persistence and diligence, National will ultimately prevail.
As both sides have indicated, Desire Savoie is old and infirm and has apparently been so for the entire course of these proceedings. Although others have filed motions that were not pursued to resolution, filed three bankruptcy petitions that delayed the foreclosure and failed to attend court several hearings until specifically ordered to do so by the court, there is no indication that Desire Savoie himself played a role in any action that resulted in the delay of eviction of the occupants of the property. In addition, although the file reflects a court order to Yolanda Faulkner to pay use and occupancy, no such order ever entered as to Desire Savoie. In sum, although National claims that the defendants have unclean hands, it has offered no evidence to that effect as to Desire Savoie. Finally, although the debt underlying both actions is old, the property is apparently desirable and the market value has held, if not increased.
Accordingly, for all the foregoing reasons, Helen Savoie's claim for exemption is granted. The motions for issuance of a writ of audita querela is denied as to Helen Savoie and granted as to Desire Savoie.