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*********************************************** 
WACHOVIA MORTGAGE, FSB v. PAWEL

TOCZEK ET AL.

(AC 42225)

Alvord, Keller, Elgo, Bright and Moll, Js.

Syllabus

The plaintiff W Co. sought to foreclose a mortgage on certain real property

owned by the defendant T. After T quitclaimed his interest in the property

to A, the trial court granted A’s motion to intervene as a defendant.

Thereafter, F Co. was substituted as the plaintiff, and the trial court

rendered a judgment of strict foreclosure in favor of F Co., from which

A appealed to this court, which affirmed the judgment and remanded

the case to the trial court for the purpose of setting new law days.

Subsequently, the trial court granted F Co.’s motion to reset the law

days in accordance with this court’s remand order and set new law

days, and A appealed to this court. Following the trial court’s issuance

of an order terminating the appellate stay for any subsequent appeals,

this court dismissed A’s appeal as frivolous and granted her motion for

review of the trial court’s order terminating the appellate stay but denied

the relief requested therein. A then timely filed motions for reconsideration en banc of the dismissal of the appeal and the denial of relief from

the termination of the appellate stay. While A’s motions for reconsideration en banc were still pending before this court, the trial court granted

F Co.’s motion to reset the law days and set the first law day for

December 4, 2018. Thereafter, A appealed to this court challenging the

trial court’s order resetting the law days, this court denied her motions

for reconsideration en banc, and F Co. filed a motion to dismiss the

appeal. A subsequently filed a motion to open the judgment of strict

foreclosure and to extend the law days, which the trial court denied.

The trial court thereafter denied A’s motion to reargue, and A amended

her appeal to challenge the denial of those motions. This court then

ordered, sua sponte, the parties to file memoranda addressing the issue

of whether the trial court’s order resetting the law days should be

summarily reversed as being in contravention of the appellate stay.

Thereafter, F Co. filed a motion to dismiss the fourth appeal and the

amended appeal as moot and the amended appeal as frivolous. Held

that the trial court acted in contravention of the appellate stay when it

granted F Co.’s motion to reset the law days and set the law days:

pursuant to the binding authority of RAL Management, Inc. v. Valley

View Associates (278 Conn. 672), our Supreme Court held that resetting

law days while an appellate stay is in effect violates the stay and cannot

be given any legal effect because doing so is an action to carry out or

to enforce the judgment pending appeal, the record revealed that the

appellate stay here was in effect on October 15, 2018, when the trial

court granted F Co.’s motion and set the law days, and although the

trial court had granted F Co.’s motion to terminate the appellate stay,

A filed a timely motion for review on July 16, 2018, which continued

the appellate stay, and, therefore, the trial court violated the stay when

it reset the law days during the period of time when A’s motion for

reconsideration of this court’s denial of the relief requested in her motion

for review was still pending; moreover, F Co. could not prevail on its

claim that because this court denied A’s motion for reconsideration,

the stay that had terminated when this court initially denied the relief

requested in A’s motion for review was never revived or brought back

to life, as that claim ignored the plain language of the rule of practice

(§ 71-6) that provides that any stay of proceedings remains in effect

during the period of time for filing a motion for reconsideration and, if

such a motion is filed, until it is denied, and it was clear pursuant to

RAL Management, Inc., that resetting the law days while the stay was

pending was in contravention of the stay, regardless of whether this

court ultimately granted the motion for reconsideration; accordingly,

the motion to dismiss the appeal was denied and the judgment granting

the F Co.’s motion to reset the law days and setting the law days could

not stand, and the motion to dismiss the amended appeal as frivolous
was granted.

Argued March 6—officially released May 14, 2019

Procedural History

Action to foreclose a mortgage on certain real property owned by the named defendant, and for other relief,

brought to the Superior Court in the judicial district of

Stamford-Norwalk, where the court, Mintz, J., granted

the motion to intervene as a party defendant filed by

Aleksandra Toczek; thereafter, Wells Fargo Bank, N.A.,

was substituted as the plaintiff; subsequently, the court

rendered a judgment of strict foreclosure, from which

the defendant Aleksandra Toczek appealed to this

court, which dismissed the appeal; thereafter, the court,

Mintz, J., granted the substitute plaintiff’s motion to

open the judgment and to extend the law days and

rendered a judgment of strict foreclosure, from which

the defendant Aleksandra Toczek appealed to this

court, which affirmed the judgment and remanded the

case for the purpose of setting new law days; subsequently, the court, Genuario, J., granted the substitute

plaintiff’s motion to reset the law days and set new law

days, and the defendant Aleksandra Toczek appealed

to this court; thereafter, the court, Genuario, J., issued

an order terminating the automatic appellate stay for

any subsequent appeals; subsequently, this court dismissed the appeal and granted the motion for review

filed by the defendant Aleksandra Toczek but denied

the relief requested therein; thereafter, the defendant

Aleksandra Toczek filed motions for reconsideration

en banc; subsequently, the court, Genuario, J., granted

the substitute plaintiff’s motion to reset the law days

and set new law days, and the defendant Aleksandra

Toczek appealed to this court; thereafter, this court

denied the defendant Aleksandra Toczek motions for

reconsideration en banc; subsequently, the substitute

plaintiff filed a motion to dismiss the appeal; thereafter,

the court, Genuario, J., denied the motion to open

the judgment and to extend the law days filed by the

defendant Aleksandra Toczek; subsequently, the court,

Genuario, J., denied the motion to reargue filed by

the defendant Aleksandra Toczek, and the defendant

Aleksandra Toczek filed an amended appeal; thereafter,

the substitute plaintiff filed a motion to dismiss the

appeal and the amended appeal. Reversed; further proceedings; motion to dismiss appeal denied; amended

appeal dismissed.

Aleksandra Toczek, self-represented, the appellant

(intervening defendant).

David M. Bizar, with whom, on the memorandum,

was J. Patrick Kennedy, for the appellee (substitute

plaintiff).
Opinion

BRIGHT, J. In this foreclosure action, the self-represented defendant, Aleksandra Toczek,1 appeals from

the judgments of the trial court granting the motion of

the plaintiff Wells Fargo Bank, N.A.,2

to reset the law

days and denying her motions to open the judgment of

strict foreclosure and extend the law days and to reargue. On November 2, 2018, the plaintiff filed a motion

to dismiss the appeal as frivolous. On February 14, 2019,

the plaintiff filed a second motion to dismiss this appeal

as moot and the amended appeal as moot and frivolous.

That motion followed this court’s order of February 4,

2019, in which we raised the question of whether the

trial court’s order resetting the law days should be summarily reversed as being in contravention of the appellate stay. After considering the parties’ written

submissions on that question and hearing oral argument

on the matter, we conclude that, under binding authority from our Supreme Court, the trial court acted in

contravention of the appellate stay when it reset the

law days. We, therefore, deny the plaintiff’s motion to

dismiss the appeal and reverse the court’s judgment

granting the plaintiff’s motion to reset the law days

and setting the law days. We agree, however, that the

defendant’s amended appeal is frivolous and, therefore,

grant the plaintiff’s motion to dismiss the amended

appeal.

The following procedural history is relevant to our

analysis. In November, 2008, the original plaintiff,

Wachovia Mortgage, FSB, filed this action seeking to

foreclose a mortgage on real property located at 15

Kenilworth Drive West in Stamford. In February, 2014,

the court, Mintz, J., rendered a judgment of strict foreclosure. The defendant appealed to this court, which

dismissed her appeal for lack of diligence.

The trial court then reentered the judgment of strict

foreclosure in February, 2015. On appeal, this court

affirmed the judgment and remanded the case to the

trial court for the purpose of setting new law days.

Wachovia Bank, FSB v. Toczek, 170 Conn. App. 904,

155 A.3d 830 (2017), cert. denied, 328 Conn. 914, 180

A.3d 961 (2018). The plaintiff filed a motion for order

to reset the law days in accordance with this court’s

remand order, which the court, Genuario, J., granted,

setting the first law day for July 24, 2018.

On May 18, 2018, pursuant to Practice Book § 61-11

(d) and (e), the plaintiff filed a motion to terminate the

automatic appellate stay in § 61-11 (a) prospectively for

any subsequent appeals filed,3 which the court granted.

On July 10, 2018, the defendant filed a third appeal from

the court’s resetting the law days. On July 16, 2018, the

defendant filed a timely motion for review of the order

of the trial court terminating the appellate stay. The

plaintiff thereafter filed a motion to dismiss the third
appeal as frivolous.

On September 6, 2018, a panel of this court granted

the plaintiff’s motion to dismiss the third appeal as

frivolous and granted the defendant’s motion for review

but denied the relief requested therein. On Monday,

September 17, 2018, the defendant filed timely motions

for reconsideration en banc of the September 6, 2018

decisions dismissing the third appeal as frivolous and

denying relief from the termination of the appellate

stay. On October 31, 2018, this court en banc denied

the defendant’s motions for reconsideration of the dismissal of the third appeal and the defendant’s motion

for review.

On September 14, 2018, before the period for seeking

reconsideration under Practice Book § 71-5 had

expired, the plaintiff filed in the trial court a motion to

reset the law days following this court’s dismissal of

the third appeal as frivolous. The defendant filed an

objection, arguing that the trial court could not reset

the law days during the pendency of her motions for

reconsideration en banc of the dismissal of the third

appeal and the prospective termination of the appellate

stay. On October 15, 2018, while the defendant’s

motions for reconsideration en banc were still pending

before this court, the trial court granted the plaintiff’s

motion to reset the law days and set the first law day

for December 4, 2018. The defendant filed the present,

and fourth, appeal on October 25, 2018, challenging the

October 15, 2018 order of the trial court resetting the

law days, and, thereafter, the plaintiff filed a motion to

dismiss the appeal as frivolous.

On November 26, 2018, the defendant filed a motion

to open the judgment of strict foreclosure and extend

the law days, which the trial court denied. The defendant filed a motion to reargue, which the court denied.

The defendant amended her fourth appeal to add the

trial court’s denial of her motions to open and to reargue. The plaintiff then filed a motion to dismiss the

original fourth appeal and the amended appeal as moot

and the amended appeal as frivolous.

On February 4, 2019, this court issued the following

order: ‘‘[T]he parties are hereby ordered, sua sponte,

to file memoranda not to exceed ten pages, on or before

February 14, 2019, to give reasons, if any, why the trial

court’s October 15, 2018 order resetting the law days

should not be summarily reversed and the matter

remanded to the trial court to set new law days, as the

trial court’s order was in contravention of the appellate

stay in effect while the defendant Aleksandra Toczek’s

September 17, 2018 timely motion to reconsider the

motion for review of the termination of stay was pending. See RAL Management, Inc. v. Valley View Associates, [278 Conn. 672, 682–85, 899 A.2d 586 (2006)];

Practice Book §§ 71-5 and 71-6.’’ Both parties filed the

requested memoranda, and we heard argument on the
issue on March 6, 2019.

We set forth the following legal principles that guide

our review. ‘‘Mootness implicates [the] court’s subject

matter jurisdiction and is thus a threshold matter for

us to resolve. . . . It is a well-settled general rule that

the existence of an actual controversy is an essential

requisite to appellate jurisdiction; it is not the province

of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the

determination of which no practical relief can follow.

. . . An actual controversy must exist not only at the

time the appeal is taken, but also throughout the pendency of the appeal. . . . When, during the pendency

of an appeal, events have occurred that preclude an

appellate court from granting any practical relief

through its disposition of the merits, a case has become

moot. . . . Because mootness implicates subject matter jurisdiction, it presents a question of law over which

our review is plenary.’’ (Citation omitted; internal quotation marks omitted.) New Hartford v. Connecticut

Resources Recovery Authority, 291 Conn. 502, 506–507,

970 A.2d 578 (2009).

‘‘Connecticut follows the title theory of mortgages,

which provides that on the execution of a mortgage on

real property, the mortgagee holds legal title and the

mortgagor holds equitable title to the property. . . .

As the holder of equitable title, also called the equity

of redemption, the mortgagor has the right to redeem

the legal title on the performance of certain conditions

contained within the mortgage instrument. . . . The

equity of redemption gives the mortgagor the right to

redeem the legal title previously conveyed by performing whatever conditions are specified in the mortgage, the most important of which is usually the

payment of money. . . .

‘‘Generally, foreclosure means to cut off the equity

of redemption, the equitable owner’s right to redeem

the property. . . . The equity of redemption can be

cut off either by sale or by strict foreclosure. . . . In

Connecticut, strict foreclosure is the rule, foreclosure

by sale the exception.’’ (Citations omitted; internal quotation marks omitted.) Ocwen Federal Bank, FSB v.

Charles, 95 Conn. App. 315, 322–23, 898 A.2d 197, cert.

denied, 279 Conn. 909, 902 A.2d 1069 (2006). ‘‘Under

our law, an action for strict foreclosure is brought by

a mortgagee who, holding legal title, seeks not to

enforce a forfeiture but rather to foreclose an equity

of redemption unless the mortgagor satisfies the debt

on or before his law day. . . . Accordingly, [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. The qualified title which the plaintiff had

previously held under his mortgage had become an
absolute one. . . . In other words, if the defendant’s

equity of redemption was extinguished by the passing

of the law days, we can afford no practical relief by

reviewing the rulings of the trial court now challenged

on appeal, as doing so would have no practical effect

or alter the substantive rights of the parties.’’ (Citations

omitted; internal quotation marks omitted.) Sovereign

Bank v. Licata, 178 Conn. App. 82, 97, 172 A.3d 1263

(2017).

There is no question that the December 4, 2018 law

day set by the court on October 15, 2018, passed without

the defendant redeeming her interest in the property.

Thus, unless the running of the law day was stayed,

title to the property has passed to the plaintiff and

the defendant’s appeal from the judgment granting the

motion to reset the law days is moot. There also is no

question that an appellate stay was in effect on October

15, 2018, when the trial court set the new law day of

December 4, 2018. Although the trial court granted the

plaintiff’s motion to terminate the appellate stay, the

defendant filed a timely motion for review on July 16,

2018, which continued the appellate stay. See Practice

Book § 61-14.4 Following this court’s denial of the relief

requested in that motion, the defendant filed, on September 17, 2018, a timely motion for reconsideration

en banc of the denial of the relief requested in her

motion for review, and, therefore, an appellate stay was

in effect when the trial court reset the law days on

October 15, 2018. See Practice Book § 71-6.5 This court

denied the motion for reconsideration en banc on October 31, 2018, and notice issued that same day. The stay

remained in effect for twenty days, until November 20,

2018. See Practice Book §§ 63-2 and 71-6.

The question, therefore, is whether the trial court’s

order resetting the law days violated the appellate stay.

On the basis of our Supreme Court’s decision in RAL

Management, Inc. v. Valley View Associates, supra, 278

Conn. 672, we conclude that it did. In RAL Management,

Inc., the court addressed whether the opening of a

judgment of strict foreclosure to reset the law days

violated the appellate stay that was in effect. In particular, the court stated that the threshold issue in the

case was ‘‘whether the trial court properly opened the

judgment while the appellate stay was in effect merely

to change the law days’’ and concluded ‘‘that such an

action was improper . . . .’’ Id., 682. The court reasoned that ‘‘the law days are ineffective pending the

stay because to treat them otherwise would carry out

the judgment in violation of the stay. It necessarily

follows, therefore, that if the law days have no legal

effect and necessarily will lapse pending the appeal

. . . any change to those dates pending the appeal similarly has no effect. Indeed, the rules of practice anticipate such a circumstance by providing specific

authority for the trial court to set new law days if the

court’s judgment is affirmed on appeal. See Practice
Book § 17-10.’’ (Citation omitted; footnotes omitted.)

RAL Management, Inc. v. Valley View Associates,

supra, 683–84.

The plaintiff argues that RAL Management, Inc., is

inapplicable to this case for two reasons. First, the

plaintiff correctly notes that in RAL Management, Inc.,

this court granted the defendants’ motion for reconsideration and vacated the trial court’s order terminating

the appellate stay. Thus, the law days set by the trial

court in RAL Management, Inc., could not have any

effect because of this court’s order reimposing the stay.

In fact, our Supreme Court in RAL Management, Inc.,

noted that the trial court’s order resetting the law days

‘‘could not be given effect, however, because the Appellate Court’s order vacated that order, thus reviving the

stay. Therefore, the trial court’s action must be viewed

as either a legal nullity or an action in contravention

to the appellate stay barring actions to carry out or

to enforce the judgment pending appeal.’’ Id., 684–85.

According to the plaintiff, this language should be read

to mean that, had this court denied the motion for

reconsideration, which happened in the present case,

the action of the trial court resetting the law days would

have been proper.

We disagree with the plaintiff’s reading of RAL Management, Inc. This court’s decision in that case vacating

the trial court’s termination of the appellate stay provided an additional reason why the law days set by the

trial court were ineffective. The language used by our

Supreme Court in RAL Management, Inc., makes clear,

however, that the court viewed the resetting of the law

days itself, which occurred well before this court ruled

on the motion for reconsideration, as violative of the

appellate stay. The court reinforced this conclusion in

a footnote that immediately follows the language relied

on by the plaintiff in the present case. Regarding the

actions of the trial court in resetting the law days, the

court stated: ‘‘We surmise that the trial court did not

act knowingly in violation of the stay. The record indicates that the defendants filed their motion for reconsideration of the Appellate Court’s denial of their motion

for review of the trial court’s decision terminating the

stay on the last day permitted for filing that motion. The

plaintiff represented to this court that it had received

a copy of the motion for reconsideration the following

business day, after the trial court had held the hearing

on the motion to open the judgment, the same day the

court granted the motion.’’ Id., 685 n.12. Accordingly,

the trial court violated the stay when it opened the

judgment and reset the law days during the period of

time when the defendants could still seek reconsideration of this court’s denial of the motion for review. That

is the exact scenario that confronts us in this case.

Second, the plaintiff argues that by stating in RAL

Management, Inc., that this court’s decision vacating
the trial court’s termination of the stay had the effect

of ‘‘reviving’’ the stay, our Supreme Court necessarily

implied that the stay ceased to exist until this court

brought it back to life. Consequently, the plaintiff argues

that because in this case we denied the defendant’s

motion for reconsideration, we never revived or

brought back to life the stay that terminated when we

initially denied the relief requested in the defendant’s

motion for review. We are not persuaded. First, this

argument ignores the plain language of Practice Book

§ 71-6, which provides that any stay of proceedings

remains in effect during the period of time for filing a

motion for reconsideration, and, if such a motion is

filed, until it is denied. See footnote 5 of this opinion.

Second, the plaintiff’s reliance on this one word in the

Supreme Court’s opinion ignores all of the other language noted previously in this opinion, which clearly

provides that resetting the law days while the stay was

in effect was in contravention of the stay, regardless

of whether this court ultimately granted the motion for

reconsideration.

We agree that the actions that are prohibited during

the appellate stay are only those that in some way

execute or effectuate the judgment. See Ruiz v. Victory

Properties, LLC, 180 Conn. App. 818, 832–33, 184 A.3d

1254 (2018) (‘‘trial courts in this state continue to have

the power to conduct proceedings and to act on motions

filed during the pendency of an appeal provided they

take no action to enforce or carry out a judgment while

an appellate stay is in effect’’). Consequently, our

Supreme Court repeatedly has held that the law days

set in a judgment of strict foreclosure cannot be given

any legal effect while the appellate stay is in effect. See,

e.g., Farmers & Mechanics Savings Bank v. Sullivan,

216 Conn. 341, 347–48, 579 A.2d 1054 (1990), and cases

cited therein. In RAL Management, Inc., the court

extended this principle to resetting law days while the

appellate stay is in effect because doing so is an action

to carry out or to enforce the judgment pending appeal.

RAL Management, Inc., v. Valley View Associates,

supra, 278 Conn. 685. Applying this holding to the facts

of this case, we conclude that the trial court’s October

15, 2018 order resetting the law days was in contravention of the appellate stay then in place. Consequently,

the judgment of the trial court is reversed. Furthermore,

because we conclude that the trial court erred in resetting the law days while the appellate stay was in effect,

we also deny the plaintiff’s motion to dismiss this appeal

but grant the motion to dismiss the amended appeal as

frivolous. The case is remanded to the trial court for

the setting of new law days now that (1) the defendant’s

third appeal has been finally disposed of, and (2) we

have denied the defendant’s motion for reconsideration

en banc of our denial of relief on her motion to review

the trial court’s order prospectively terminating any

future appellate stays in this matter.
The motion to dismiss the appeal is denied, the

motion to dismiss the amended appeal as frivolous is

granted and the judgment granting the plaintiff’s motion

to set new law days is reversed and the case is remanded

for the purpose of setting new law days.

In this opinion the other judges concurred.

1 The complaint named Pawel Toczek and National City Bank as the

defendants. After Pawel Toczek quitclaimed his interest in the property to

her, Aleksandra Toczek filed a motion to intervene, which the court granted.

We refer in this opinion to Aleksandra Toczek as the defendant.

2 Wachovia Mortgage, FSB (Wachovia), commenced this foreclosure

action. In June, 2013, the court granted Wachovia’s motion to substitute

Wells Fargo Bank, N.A. (Wells Fargo), as the plaintiff after Wachovia merged

into Wells Fargo. We refer in this opinion to Wells Fargo as the plaintiff.

3

‘‘It is axiomatic that, with limited exceptions, an appellate stay of execution arises from the time a judgment is rendered until the time to file an

appeal has expired. Practice Book § 61-11 (a). If an appeal is filed, any

appellate stay of execution in place during the pendency of the appeal period

continues until there is a final disposition of the appeal or the stay is

terminated. Practice Book § 61-11 (a) and (e).’’ Sovereign Bank v. Licata,

178 Conn. App. 82, 99, 172 A.3d 1263 (2017).

4 Practice Book § 61-14 provides in relevant part: ‘‘The sole remedy of any

party desiring the court to review an order concerning a stay of execution

shall be by motion for review under Section 66-6. Execution of an order of

the court terminating a stay of execution shall be stayed for ten days from

the issuance of notice of the order, and if a motion for review is filed within

that period, the order shall be stayed pending decision of the motion, unless

the court having appellate jurisdiction rules otherwise. . . .’’

5 The plaintiff argues that pursuant to Practice Book § 61-14, any appellate

stay ended when the court denied the defendant’s motion for review.

According to the plaintiff, because § 61-14 provides that a motion for review

is a party’s sole remedy from a trial court’s decision terminating an appellate

stay, a motion for reconsideration pursuant to Practice Book § 71-5, does

not extend the stay. The plaintiff’s argument is without merit. Practice Book

§ 71-6 expressly provides in relevant part that ‘‘[u]nless the chief justice or

chief judge shall otherwise direct, any stay of proceedings which was in

effect during the pendency of the appeal shall continue until the time for

filing a motion for reconsideration has expired, and, if a motion is filed,

until twenty days after its disposition, and, if it is granted, until the appeal

is finally determined. . . .’’ (Emphasis added.) Because § 71-6 applies to

any stay of proceedings, it necessarily applies to a stay under § 61-14.