Federal National Mortgage Assn. v. Buhl

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FEDERAL NATIONAL MORTGAGE ASSOCIATION v.
PAUL BUHL ET AL.
(AC 40627)
Elgo, Bright and Sullivan, Js.

Syllabus

The plaintiff mortgage company sought, by way of summary process, to
gain possession of certain premises occupied by the defendants, P and
L. The plaintiff had acquired title to the subject property in connection
with a foreclosure action commenced by L Co. against the defendants.
In paragraph 2 of its summary process complaint, the plaintiff alleged,
inter alia, that L Co. had transferred the property to it by a quitclaim
deed that was recorded on the East Haddam land records. The defen-
dants denied the material allegations of the complaint and filed a special
defense alleging that the deed was invalid because its acknowledgement
was undated. Following a three day trial, the trial court defaulted L for
failure to appear and rendered judgment of possession in favor of the
plaintiff with respect to both defendants. On appeal, the defendants
challenged, inter alia, the trial court’s interpretation and application of
the statute (§ 47-36aa), commonly known as the validating act, which
validates certain instruments, including deeds, that contain defective
acknowledgements unless an action challenging the validity of the instru-
ment is commenced and a notice of lis pendens is recorded in the land
records of the town where the instrument is recorded within two years
after the instrument is recorded, as well as those that contain insubstan-
tial defects but are otherwise valid. Held:
1. The defendants could not prevail on their claim that the trial court erred
in determining that they did not commence an action pursuant to § 47-
36aa, which was based on their claim that, by denying the allegation in
paragraph 2 of the complaint and asserting their special defense, they
commenced an action under the statute; although § 47-36aa is silent as
to what constitutes the commencement of an action, the defendants did
not engage in the legal process articulated in the statute (§ 52-45a) that
governs the commencement of civil actions and, thus, did not commence
a civil action pursuant to that provision, and the defendants’ contention
that their special defense was analogous to a counterclaim and, there-
fore, commenced an independent action was unavailing, as they failed
to claim any entitlement to a judicial remedy or relief in their special
defense.
2. The trial court properly determined that the absence of an acknowledg-
ment date and an execution date did not render the deed invalid pursuant
to § 47-36aa; because the defendants did not commence an action chal-
lenging the validity of the deed, any defect caused by the lack of an
acknowledgement date was cured under the statute, and § 47-36aa
clearly provides that notarial defects, such as the absence of an execu-
tion date, are insubstantial and will not invalidate a deed.
3. The defendants could not prevail on their unpreserved claim that the trial
court abused its discretion by allowing the plaintiff’s counsel to give
certain unsworn testimony regarding the execution of the deed, the
defendants having failed to prove that they were prejudiced by counsel’s
statements: the defendants failed to demonstrate that the trial court
relied on the subject statements, as the court did not mention any of the
statements made by the plaintiff’s counsel with regard to the execution
of the deed in rendering its decision, and it had no reason to rely on
the statements because the deed was before the court as a full exhibit;
moreover, counsel’s statements as to the date of execution were not
prejudicial because Connecticut is a recording state, and, therefore, the
defendants’ claim hinged on the date the deed was recorded, not the
date it was executed.
4. The trial court did not abuse its discretion in rendering a default judgment
against L for failure to appear at trial; it was uncontested that L failed
to appear for all three days of the trial, and the defendants failed to
present evidence that there was a proper excuse for her nonappearance.
Argued September 24—officially released December 25, 2018
Procedural History

Summary process action brought to the Superior
Court in the judicial district of Middlesex and tried to
the court, Vitale, J.; thereafter, the defendant Luce Buhl
was defaulted for failure to appear; judgment for the
plaintiff, from which the defendants appealed to this
court. Affirmed.
Paul D. Buhl, self-represented, with whom, on the
brief, was Luce L. Buhl, self-represented, the appel-
lants (defendants).
Peter A. Ventre, for the appellee (plaintiff).
Opinion

SULLIVAN, J. The present appeal in this summary
process action stems from the foreclosure of real prop-
erty located at 12 Casner Road in East Haddam. The
self-represented defendants, Paul Buhl and Luce Buhl,1
appeal from the judgment of possession rendered in
favor of the plaintiff, Federal National Mortgage Associ-
ation. On appeal, the defendants claim that the trial
court (1) improperly determined that they did not com-
mence an action pursuant to General Statutes § 47-36aa
(a), (2) improperly determined that the deed to the
subject property was valid despite notarial defects, (3)
abused its discretion by allowing the plaintiff’s counsel
to give unsworn testimony, and (4) abused its discretion
by rendering a default judgment against Luce Buhl for
failure to appear at trial. We disagree and affirm the
judgment of the trial court.
The following facts and procedural history are rele-
vant to our resolution of this appeal. In 2016, the plaintiff
acquired title to the property through a strict foreclo-
sure action, while the defendants were living on the
premises. On March 29, 2017, the plaintiff commenced
this summary process action against the defendants.
Paragraph 2 of the plaintiff’s complaint alleged that
‘‘Liberty Bank2 quitclaimed the property to [the plaintiff]
and said deed was recorded September 28, 2016, on
the East Haddam land records in volume 1012, pages
207–208.’’ (Footnote added.)
On May 12, 2017, the defendants denied the material
allegations of the complaint, including paragraph 2. The
defendants also asserted a special defense that they
had commenced an action against the plaintiff in federal
District Court concerning the ownership of the property
and that the federal action needed to be resolved before
the underlying summary process action could proceed.3
The summary process action was tried to the court
on June 5 and 26, and July 3, 2017. On June 26, 2017,
the defendants filed a second special defense alleging
that the deed to the property was invalid because its
acknowledgment was undated. On July 3, 2017, the
court rendered judgment against Paul Buhl on the mer-
its and rendered a default judgment against Luce Buhl
for failure to appear at trial. This appeal followed. Addi-
tional facts and procedural history will be set forth
as necessary.
The defendants’ first two claims are based on their
argument that the trial court misinterpreted and misap-
plied § 47-36aa. We begin with the standard of review
for these claims. ‘‘When construing a statute, [o]ur fun-
damental objective is to ascertain and give effect to the
apparent intent of the legislature. . . . In seeking to
determine that meaning, General Statutes § 1-2z directs
us first to consider the text of the statute itself and its
relationship to other statutes. If, after examining such
text and considering such relationship, the meaning of
such text is plain and unambiguous and does not yield
absurd or unworkable results, extratextual evidence of
the meaning of the statute shall not be considered. . . .
The test to determine ambiguity is whether the statute,
when read in context, is susceptible to more than one
reasonable interpretation. . . . When a statute is not
plain and unambiguous, we also look for interpretive
guidance to the legislative history and circumstances
surrounding its enactment, to the legislative policy it
was designed to implement, and to its relationship to
existing legislation and common law principles govern-
ing the same general subject matter . . . . The issue
of statutory interpretation . . . is a question of law
subject to plenary review.’’ (Citation omitted; internal
quotation marks omitted.) Commissioner of Emer-
gency Services & Public Protection v. Freedom of Infor-
mation Commission, 330 Conn. 372, 380, 194 A.3d
759 (2018).
Section 47-36aa, which is commonly known as the
validating act, provides in relevant part: ‘‘(a) Conveyan-
cing defects. Any deed, mortgage, lease, power of attor-
ney, release, assignment or other instrument made for
the purpose of conveying, leasing, mortgaging or affect-
ing any interest in real property in this state recorded
after January 1, 1997, which instrument contains any
one or more of the following defects or omissions is
as valid as if it had been executed without the defect
or omission unless an action challenging the validity of
that instrument is commenced and a notice of lis pen-
dens is recorded in the land records of the town or
towns where the instrument is recorded within two
years after the instrument is recorded: (1) The instru-
ment contains a defective acknowledgment or no
acknowledgment . . . . (b) Insubstantial defects. Any
deed, mortgage, lease, power of attorney, release,
assignment or other instrument made for the purpose
of conveying, leasing, mortgaging or affecting any inter-
est in real property in this state recorded after January
1, 1997, which instrument contains any one or more of
the following defects or omissions is as valid as if it
had been executed without the defect or omission: (1)
The instrument contains an incorrect statement of the
date of execution or omits the date of execution . . . .’’
I
The defendants first claim that the trial court erred
in determining that they did not commence an action
pursuant to § 47-36aa (a). Specifically, they argue that
they commenced an action under § 47-36aa (a) by deny-
ing an allegation in the summary process complaint and
asserting a special defense. We disagree.
Although § 47-36aa (a) is silent as to what constitutes
commencement of an action, General Statutes § 52-45a
provides that civil actions are commenced ‘‘by legal
process consisting of a writ of summons or attachment,
describing the parties, the court to which it is return-
able, the return day, the date and place for the filing
of an appearance and information required by the Office
of the Chief Court Administrator.’’ The defendants did
not engage in the legal process articulated in § 52-45a.
They did not, therefore, commence a civil action pursu-
ant to that provision.
The defendants also argue that their second special
defense is analogous to a counterclaim and, therefore,
commences an independent action. We disagree. ‘‘[A]
counterclaim is an independent cause of action, and a
special defense is not.’’ Sovereign Bank v. Harrison,
184 Conn. App. 436, 444, A.3d (2018). Special
defenses ‘‘[operate] as a shield, to defeat a cause of
action, and not as a sword, to seek judicial remedy
for a wrong.’’ (Internal quotation marks omitted.) Id.,
444–45, quoting Bank of America, N.A. v. Aubut, 167
Conn. App. 347, 374, 143 A.3d 638 (2016). This court
has held that a defendant’s special defense did not com-
mence a foreclosure action because the defendant ‘‘nei-
ther explicitly requested any judicial redress or relief
nor alleged any facts from which it could be inferred
that she was entitled to such relief.’’ Id., 446–47. In the
present case, the defendants similarly failed to claim
any relief in their second special defense, which stated:
‘‘The deed by which the plaintiff claims to hold title is
invalid because its acknowledgment is defective for
failure to state a date as required by [General Statutes]
§ 1-34, and the defendants have caused a lis pendens
concerning that issue to be recorded on the East Had-
dam land records, a certified copy of which is attached
hereto, less than two years after the recordation of the
deed.’’ The trial court, therefore, properly determined
that the defendants failed to commence an action as
required by § 47-36aa (a).
II
The defendants’ second claim is that the trial court
erred in determining that the deed was valid pursuant
to § 47-36aa. Specifically, they argue that the deed is
void because neither the acknowledgment of the deed
nor the deed itself are dated, and that, as a result, the
plaintiff does not own the property. We disagree.
As a preliminary matter, because we conclude that
the defendants did not commence an action under § 47-
36aa (a), any defect caused by the lack of an acknowl-
edgement date has been cured. See, e.g., Chase Home
Finance, LLC v. Morneau, 156 Conn. App. 101, 107
n.7, 113 A.3d 445 (2015) (‘‘§ 47–36aa (a) . . . validates
defective conveyances if not challenged within two
years’’). We, therefore, need not address the merits of
the defendants’ argument that the deed was void
because of a defective acknowledgment.
We next turn to the defendants’ argument that the
absence of an execution date rendered the deed invalid.
It is uncontested that the deed from Liberty Bank to the
plaintiff is undated. Section 47-36aa (b) (1), however,
clearly states that such notarial defects are insubstantial
and that they will not invalidate a deed. See ARS Invest-
ors II 2012-1 HBV, LLC v. Crystal, LLC, 324 Conn. 680,
687–88, 154 A.3d 518 (2017) (holding that, in mortgage
foreclosure action, insubstantial defect listed in § 47-
36aa (b) did not invalidate deed). We conclude, there-
fore, that the trial court properly determined that the
absence of an execution date, like the absence of an
acknowledgment date, does not render the deed invalid.
III
The defendants’ third claim is that the trial court
abused its discretion by allowing the plaintiff’s counsel
to give unsworn testimony regarding the deed. The
plaintiff argues that the trial court did not abuse its
discretion because it did not rely on counsel’s com-
ments. We agree with the plaintiff.
The following additional facts are relevant to the
resolution of this claim. On July 3, 2017, the parties
appeared before the court to present final arguments,
the presentation of evidence having concluded on June
26, 2017. In particular, Paul Buhl argued that the court
should dismiss the complaint because of the alleged
defect in the acknowledgment. During the plaintiff’s
argument, the following exchange occurred:
‘‘[The Plaintiff’s Counsel]: And additionally, Your
Honor, with regard to that quitclaim deed, my office
prepared it. My office prepared that deed, sent it over
to Liberty Bank on July 19, 2016, and we received the
executed deed back from them on July 25, 2016. So
even though there’s no date on it, our records, in our
office, indicate that the deed was executed within that
five or six day window and was executed—
‘‘[Paul Buhl]: Objection. Counsel’s testifying—
‘‘The Court: Mr. Buhl, please, let him finish. I’ll give
you an opportunity to say whatever you want to say.
‘‘[Paul Buhl]: All right. I apologize, Your Honor. I want
to raise an objection.
‘‘[The Plaintiff’s Counsel]: And additionally, Your
Honor, as we stated when we were here the last time,
Connecticut is a recording state. The deed does not
take effect until it is recorded. That deed might have
been prepared in April or May. Prior to the conclusion
of the litigation, we know, from dealing with these, that
in many cases the deed, the property is being deeded
from one bank to either . . . the present plaintiff here
or Federal Home Loan Mortgage [Corporation] . . .
and we prepare the majority of those deeds. When
they’re prepared and executed it doesn’t matter until
it hits the land records. And we know that by the time
it hit the land records it is properly witnessed and it
does bear an acknowledgment. . . .
‘‘The Court: Okay, Mr. Buhl I know you are anxious
to respond.
‘‘[Paul Buhl]: Just three really quick things, Your
Honor. I did not intend to interrupt. I intended to object
because counsel is, in effect, giving testimony, including
hearsay testimony as to records that are back at the
office in Hartford. And I don’t think that’s, you know,
bring an affidavit, bring the records, something. Bring
a witness.’’
Without waiting for a ruling on his objection, Paul
Buhl proceeded to address the merits of the plaintiff’s
argument. Thereafter, the court addressed the merits of
the defendants’ claim regarding the allegedly defective
acknowledgment without making any reference to the
statements made by the plaintiff’s counsel regarding
how and when the deed was prepared.
‘‘Before testifying, every witness shall be required to
declare that the witness will testify truthfully, by oath or
affirmation administered in a form calculated to awaken
the witness’s conscience and impress the witness’s
mind with the duty to do so.’’ C. Tait & E. Prescott,
Connecticut Evidence (5th Ed. 2014) § 6.2.1, p. 331.
Unsworn ‘‘representations of counsel are not, legally
speaking, evidence’’ upon which courts can rely. (Inter-
nal quotation marks omitted.) Constantine v. Schnei-
der, 49 Conn. App. 378, 395, 715 A.2d 772 (1998); see
also Cologne v. Westfarms Associates, 197 Conn. 141,
154, 496 A.2d 476 (1985) (‘‘[w]e note that, had the trial
court relied entirely upon unsworn statements of the
plaintiffs’ counsel at [the] proceeding, the due process
rights guaranteed the defendants . . . may well have
been violated’’).
Because the defendants never requested a ruling by
the court, the issue was not preserved. See, e.g., McCar-
thy v. Chromium Process Co., 127 Conn. App. 324, 335,
13 A.3d 715 (2011) (declining to review claim where
appellant failed to ‘‘move for an articulation . . . or to
ask the trial judge to rule on an overlooked matter’’
[internal quotation marks omitted]). Even if we con-
sider this claim to be properly preserved, it fails because
the defendants did not prove that they were prejudiced
by the statements made by the plaintiff’s counsel during
closing argument. Although the trial court did not rule
on the defendants’ objection to the statements, the
defendants have failed to demonstrate that the trial
court relied on the statements. In its decision, the trial
court did not mention any of the statements made by
the plaintiff’s counsel with regard to the execution of
the deed. Indeed, the court had no reason to rely on
these statements because the deed was before the court
as a full exhibit. Moreover, the statements by the plain-
tiff’s counsel as to the date of execution were not preju-
dicial because Connecticut is a recording state, meaning
that the defendants’ claim hinges on the date the deed
was recorded, not the date it was executed. See General
Statutes § 47-10 (‘‘[n]o conveyance shall be effectual to
hold any land against any other person but the grantor
and his heirs, unless recorded on the records of the
town in which the land lies’’). Accordingly, we conclude
that the defendants’ claim is without merit.
IV
Finally, the defendants claim that the trial court erred
in rendering a default judgment against Luce Buhl for
failure to appear at trial. Specifically, they argue that
Luce Buhl had a proper excuse for not attending—there
were no facts to be tried or testimony to be offered,
and Luce Buhl’s position in the case was identical to
that of Paul Buhl, who was present. The plaintiff argues
that this claim is not reviewable because Luce Buhl did
not raise it at trial, and, alternatively, that the entry
of a default against Luce Buhl was not an abuse of
discretion. We agree with the plaintiff that the court did
not abuse its discretion in rendering a default judgment
against Luce Buhl.
The following additional facts are relevant to the
resolution of this claim. Luce Buhl received notice that
the case would be tried on June 5 and 26, and July 3,
2017. Despite having received notice, Luce Buhl failed
to appear for trial, and on July 3, 2017, the trial court
entered a default against her for failure to appear. The
court stated the following in support of its ruling:
‘‘[Luce] Buhl is not here . . . . She didn’t appear June
5, didn’t appear [July 3] and didn’t appear . . . June
26.’’
At the outset, we must address the plaintiff’s argu-
ment that this claim was not preserved. Practice Book
§ 61-10 provides in relevant part: ‘‘It is the responsibility
of the appellant to provide an adequate record for
review. . . .’’ If an appellant fails to provide an ade-
quate record, this court may decline to review the appel-
lant’s claim. Although Luce Buhl did not raise this claim
at trial, we determine that it is reviewable because the
record is adequate. There is a clear record of the court’s
decision to enter a default against Luce Buhl. The claim
also is reviewable pursuant to Practice Book § 60-5
because the court defaulted Luce Buhl subsequent to
trial. Moreover, the defendants are self-represented,
and ‘‘[i]t is the established policy of the Connecticut
courts to be solicitous of [self-represented] litigants and
when it does not interfere with the rights of other parties
to construe the rules of practice liberally in favor of
the [self-represented] party . . . .’’ (Internal quotation
marks omitted.) Darin v. Cais, 161 Conn. App. 475,
481, 129 A.3d 716 (2015).
The defendants’ claim, however, ultimately fails
because it was soundly within the court’s discretion to
render a default judgment against Luce Buhl. ‘‘It is well
established that ‘‘[e]ntry of a . . . default for failure to
appear for trial is a matter left to the sound discretion
of the trial court. . . . Practice Book § 17-19 provides
in relevant part: If a party . . . fails without proper
excuse to appear in person or by counsel for trial, the
party may be nonsuited or defaulted by the judicial
authority.’’ (Internal quotation marks omitted.) Hous-
ing Authority v. Weitz, 163 Conn. App. 778, 782, 134
A.2d 749 (2016). It is uncontested that Luce Buhl failed
to appear for all three days of trial. Additionally, the
defendants failed to present evidence that there was
a proper excuse for Luce Buhl’s nonappearance.4 We
conclude, therefore, that the trial court did not abuse
its discretion in rendering a default judgment against
Luce Buhl.
The judgment is affirmed.
In this opinion the other judges concurred.
1
We refer in this opinion to Paul Buhl and Luce Buhl, collectively, as the
defendants, and individually by name where appropriate.
2
Liberty Bank was the plaintiff’s predecessor in interest. Liberty Bank
commenced a foreclosure action against the defendants in 2011. See Liberty
Bank v. Buhl, Superior Court, judicial district of Middlesex, Docket No.
CV11-6006186-S (November 18, 2016).
3
The action referenced in the defendants’ first special defense was dis-
missed by the District Court for lack of subject matter jurisdiction; Buhl v.
Grady, United States District Court, Docket No. 3:16CV1808 (VLB) (D. Conn.
November 8, 2016); and, subsequently, by the United States Court of Appeals
for the Second Circuit as frivolous. Buhl v. Grady, United States Court of
Appeals, Docket No. 16-4111 (2d Cir. March 23, 2017). On October 2, 2017,
the United States Supreme Court denied the defendants’ petition for a writ
of certiorari. Buhl v. Grady, U.S. , 138 S. Ct. 200, 199 L. Ed. 2d
117 (2017).
4
The defendants argue that the fact that Luce Buhl’s position was identical
to Paul Buhl’s position is a proper excuse for her nonappearance. They fail,
however, to point to any authority supporting this assertion. Furthermore,
given that the defendants admit that their positions were identical and that
we have concluded that the issues raised by Paul Buhl are without merit,
Luce Buhl was not impacted by the rendering of the default judgment.