August 14, 2018

by Joseph Dunaj
McCalla Raymer Leibert Pierce, LLC – USFN Member (Connecticut, Florida, Georgia, Illinois)

In a case of first impression, the Connecticut Appellate Court held that a defendant’s untimely appeal did not invoke the automatic appellate stay and, thus, title vested to the plaintiff — despite the untimely appeal filing. [Deutsche Bank National Trust Company, Trustee v. Fraboni (Conn. App. Ct. June 26, 2018)].

Background
In Fraboni, the trial court had initially entered a judgment of strict foreclosure in 2014. On May 9, 2016 (after multiple extensions of the law day) the trial court denied the defendant’s latest motion to open judgment. However, sua sponte, the court extended the law day to June 28, 2016 to allow the 20-day appeal period (from the motion denial) to expire.

On June 27, 2016 the defendant filed an appeal of the May 9th decision. The plaintiff moved to dismiss that appeal on dual grounds: (1) that the appeal was untimely; and (2) that the appeal was also moot because the untimely appeal did not trigger the automatic appellate stay. Accordingly, the law days had run unabated, and title had vested to the plaintiff. The defendant opposed the motion to dismiss and also moved for permission to allow the late appeal, which the plaintiff opposed. The appellate court dismissed the appeal, without any articulation, and denied the motion for the late appeal.

The plaintiff then applied to the trial court for an execution for ejectment to obtain possession of the property. The defendant objected on the grounds that the late appeal had triggered the automatic appellate stay and, therefore, title had never vested to the plaintiff. Rather than rule on what it deemed a novel issue, the trial court granted the joint motion of the parties and reserved the matter to the appellate court for consideration.

Appellate Court’s Analysis
The question before the appellate court was whether an untimely appeal ever triggers an appellate stay. Connecticut Practice Book § 61-11(a) states: “Except where otherwise provided by statute or other law, proceedings to enforce or carry out the judgment or order shall be automatically stayed until the time to file an appeal has expired. If an appeal is filed, such proceedings shall be stayed until the final determination of the cause.” The plaintiff contended that the two sentences had to be read conjunctively, so that only a timely appeal could continue the appellate stay. The defendant maintained that the two sentences should be read disjunctively, so that even an untimely appeal would trigger the automatic stay.

The appellate court sided with the plaintiff, holding that the sentences must be read conjunctively. Because the defendant failed to file a timely appeal, and did not seek a discretionary stay or take other action to prevent the law day, the untimely appeal did not prevent the vesting of title to the plaintiff. The appellate court commented on the defendant’s position that “it seems more absurd to construe the rule to allow a party who has sat on his rights to use an untimely appeal to reinstate the expired automatic stay and thereby thwart a plaintiff’s legally proper efforts to collect or to proceed with a foreclosure once a judgment has been rendered and the defendant has failed to file a timely appeal.”

Closing Words
The appellate court’s position is very favorable to foreclosing plaintiffs. It precludes a borrower from utilizing an untimely appeal as a method of delaying a foreclosure. However, it must be noted that a foreclosing plaintiff should still take a proactive approach in contesting any untimely appeal. The appellate court discussed the fact that the plaintiff had moved to dismiss the appeal on the partial grounds of untimeliness, and although the appellate court did not consider that fact in its ultimate analysis, it can be inferred that should a plaintiff fail to raise the timeliness issue on the appeal, then the plaintiff’s failure may constitute a waiver to later argue that no appellate stay existed. A foreclosing plaintiff would be well served to raise the untimeliness issue to prevent such a waiver.

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