Retained Realty, Inc. v. LeComte

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RETAINED REALTY, INC. v. DENISE
E.A. LECOMTE ET AL.
(AC 44515)
Alvord, Elgo and Palmer, Js.

Syllabus

The plaintiff sought to foreclose a mortgage on certain real property owned
by the named defendant, L. Following the trial court’s rendering of a
judgment of foreclosure by sale, L filed, with the consent of the plaintiff,
a motion to open the judgment to convert it to a judgment of strict
foreclosure pursuant to certain terms and conditions set forth in a
stipulation filed by the parties with the court. The court granted the
motion to open, approved the stipulation, and rendered a judgment of
strict foreclosure. After the law days had passed without redemption
and title to the property vested in the plaintiff, the plaintiff filed an
application for an execution of ejectment, naming L and her two adult
children as the persons in possession of the property. The court clerk
issued an order rejecting the application on the ground that it included
persons who were not named as parties in the foreclosure action. The
plaintiff filed a motion to reargue the clerk’s rejection of its application,
which the court denied, concluding, inter alia, that permitting the
ejectment to proceed against L’s adult children would deprive them of
due process. The plaintiff subsequently appealed to this court, claiming
that the trial court erred in denying its motion to reargue the clerk’s
rejection of its application for an execution of ejectment. Following oral
argument before this court but before this court rendered its judgment,
the plaintiff obtained from the trial court an execution of ejectment in
this action as to L and an execution of ejectment in an omitted party
action as to L’s adult children. This court thereafter ordered supplemen-
tal briefing on the issue of mootness. Held that the plaintiff’s claim was
moot, and its appeal was dismissed for lack of subject matter jurisdiction:
because, during the pendency of this appeal, the plaintiff obtained the
very relief it requested in its appeal, there was no practical relief that
could be afforded to the plaintiff; moreover, the plaintiff’s case did not
fall within the capable of repetition, yet evading review exception to
the mootness doctrine because the challenged action, namely, the trial
court’s declining to eject nonparties from the subject property, was not,
by its very nature, of limited duration, as the plaintiff’s appeal was
rendered moot not due to the inherently limited duration of the proceed-
ing but due to the plaintiff’s actions in pursuing its requested relief
through the alternative avenue of an omitted party action.
Argued February 9—officially released October 11, 2022

Procedural History

Action to foreclose a mortgage on certain of the
named defendant’s real property, and for other relief,
brought to the Superior Court in the judicial district
of Stamford-Norwalk, where the court, Randolph, J.,
rendered a judgment of foreclosure by sale; thereafter,
the court, Genuario, J., granted the named defendant’s
motion to open the judgment of foreclosure by sale and
rendered a judgment of strict foreclosure in accordance
with the parties’ stipulation; subsequently, the court,
Spader, J., denied the plaintiff’s motion to reargue the
court clerk’s rejection of its application for an execution
of ejectment, and the plaintiff appealed to this court.
Appeal dismissed.
Taryn D. Martin, for the appellant (plaintiff).
John L. Cesaroni, for the appellee (named defen-
dant).
Opinion

ALVORD, J. In this foreclosure action, the plaintiff,
Retained Realty, Inc., appeals from the judgment of the
trial court denying its motion to reargue the court
clerk’s rejection of its application for an execution of
ejectment, which sought to eject the defendant Denise
E.A. LeComte1 and her adult children, Nichols2 L. LeComte
and Alysia A. LeComte (adult children),3 both of whom
are nonparties to this action. The plaintiff claims on
appeal that the court erred in denying its motion to
reargue the clerk’s rejection of its application for an
execution of ejectment. Following oral argument before
this court, but before this court rendered its judgment,
the plaintiff obtained from the trial court an execution
of ejectment in this action, as to the defendant, and an
execution of ejectment in an omitted party action, as
to the adult children. We ordered the parties to submit
supplemental briefs on the issue of mootness. Having
reviewed the parties’ supplemental briefs, we conclude
that the plaintiff’s claim is moot, and we dismiss the
appeal for lack of subject matter jurisdiction.
The following facts and procedural history are rele-
vant to our resolution of this appeal. The defendant is
the borrower on a note and the mortgagor of a mort-
gage, which documents initially were executed in favor
of the lender, Emigrant Mortgage Company, Inc., on
property located at 1375 King Street in Greenwich
(property). The mortgage and note subsequently were
assigned to Emigrant Residential, LLC, formerly known
as EMC, L.L.C., which assigned them to the plaintiff.
On June 12, 2017, the plaintiff commenced the present
foreclosure action by service of process on the defen-
dant, as the borrower, the defendant’s former husband,
Jonathan B. LeComte, and Old World Ceramics, Inc.,
of which the defendant was the agent for service. See
footnote 1 of this opinion. The plaintiff filed a second
amended complaint in April, 2018, in which it alleged,
inter alia, that it was ‘‘the holder of the note and mort-
gage for the installment of principal and interest due
on August 1, 2016, and each month thereafter which
has not been paid and the plaintiff has exercised the
option to declare the entire [amount] due on the note
due and payable.’’ The plaintiff alleged that the defen-
dant, her former husband, and Old World Ceramics,
Inc., were in possession of the premises.
The plaintiff filed a motion for summary judgment,
which was granted by the court, Genuario, J., on
November 30, 2018. Thereafter, the plaintiff filed a
motion for a judgment of strict foreclosure or, in the
alternative, for a judgment of foreclosure by sale. The
defendant filed an objection, arguing that there
‘‘appear[ed] to be substantial equity’’ in the property.
Thus, the defendant requested that the motion for a
judgment of strict foreclosure be denied or, in the alter-
native, that a judgment of foreclosure by sale be ren-
dered. On January 2, 2019, the court, Randolph, J.,
rendered a judgment of foreclosure by sale, setting a
sale date of June 29, 2019.
On May 7, 2019, the defendant filed a motion to open
the judgment and extend the sale date until the conclu-
sion of the trial in the defendant’s contested marital
dissolution proceeding and the issuance of the court’s
decision in that action. Over the objection of the plain-
tiff, the court, Povodator, J., granted the defendant’s
motion and extended the sale date to January 11, 2020.
On January 8, 2020, the defendant filed, with the
consent of the plaintiff, a motion to open the judgment,
in which she requested that the court open the judgment
of foreclosure by sale and ‘‘convert [it] to a judgment
of strict foreclosure, with a law day of April 7, 2020,
pursuant to a stipulation . . . negotiated by the parties
to be filed with the court.’’ Also on January 8, the defen-
dant filed with the court the stipulation, which was
executed by the defendant4 and counsel for the plaintiff
on the same date.
In the stipulation, the parties requested that the court
render a judgment of strict foreclosure on the following
terms and conditions: ‘‘1. As of the date hereof, the
defendant . . . has obtained title, possession and
equity of any and all interests that . . . Jonathan B.
LeComte has or ever had in and to [the property] by
and through a dissolution of marriage judgment . . . .
2. The defendant . . . is in sole possession and title of
the property. 3. The parties acknowledge that the origi-
nal judgment entered a year ago on January 2, 2019,
and as of the date hereof, the defendant . . . has been
unable to sell the property, refinance the subject mort-
gage or to reinstate. 4. The plaintiff and the defendant
agree that a judgment of strict foreclosure shall enter
in the subject action and the first law day shall be April
7, 2020. 5. The defendant agrees to waive her rights to
further reopen the foreclosure action and/or judgment
of foreclosure and agrees that as of April 8, 2020, the
plaintiff shall be entitled to title and possession of the
property. 6. The defendant agrees to waive any and all
of her rights to appeal or challenge the judgment and
agrees that as of April 8, 2020, the plaintiff shall be
entitled to title and possession of the property. 7. The
defendant shall have through April 7, 2020, to vacate
the property, time being of the essence. 8. The defen-
dant agrees that any personal property remaining at the
property after midnight on April 7, 2020, is deemed
abandoned. 9. The defendant acknowledges that this is a
final stay of execution and she cannot request additional
time of this court or file and/or request any appellate
relief. 10. The defendant shall continue to maintain the
property until she vacates, which includes, but is not
limited to, being solely responsible for the snow
removal, maintenance and utilities. 11. On April 7, 2020,
at midnight, the plaintiff shall be entitled to title and
possession of [the property]. 12. Should the defendant
not have vacated the property, the plaintiff shall apply
for ejectment on April 8, 2020, which shall be granted
by the court, without delay. 13. [The] [d]efendant waives
any and all rights to seek extension of the ejectment.
14. [The] [d]efendant waives any and all rights of appeal
as to the ejectment order(s). 15. Should the defendant
not have vacated the premises by April 7, 2020, the
[s]tate [m]arshal will execute upon the ejectment upon
timely receipt of the ejectment signed by the court.
16. [The] [d]efendant agrees that any and all personal
property not removed from the property at the time of
the ejectment is deemed abandoned. 17. The defendant
states that there are no other persons in possession of
the property. Further, the defendant agrees not to allow
any other individual to gain possession of the premises
from this date forward.’’
On January 10, 2020, the court, Genuario, J., on the
record, granted the ‘‘consent motion to open judgment
of foreclosure by sale,’’ approved the stipulation, ren-
dered a judgment of strict foreclosure, and set law days
to commence on April 7, 2020. Because of the foreclo-
sure moratorium precipitated by the COVID-19 pan-
demic, the court automatically opened and extended
the law days several times until October 6, 2020. The
law days passed without redemption, and the plaintiff
took title to the property on October 7, 2020.
On December 10, 2020, the plaintiff filed an applica-
tion for an execution of ejectment, naming the defen-
dant and her two adult children as the persons in posses-
sion of the property. That same day, the clerk5 rejected
the application for an execution of ejectment, issuing
an order stating: ‘‘Motion for ejectment includes parties
that are not listed in the action. Plaintiff should file a[n]
action in housing.’’
On December 15, 2020, the plaintiff filed a motion to
reargue the clerk’s rejection of its application for an
execution of ejectment. It represented therein that the
defendant had stipulated that she was in sole possession
of the property and would vacate the property by mid-
night on the law day of April 7, 2020, which law day
was postponed due to the pandemic until October 6,
2020. In support of its motion, the plaintiff argued that
the defendant’s two adult children were believed to be
residing at the property and were subject to ejectment
on the basis, inter alia, that they had no independent
right of possession. Specifically, the plaintiff argued
that the defendant’s adult children are not bona fide
tenants under the federal Protecting Tenants at Foreclo-
sure Act of 2009,6 which provides certain protections
to bona fide tenants of foreclosed properties, including
protection from immediate ejectment.7 The plaintiff fur-
ther argued that the term ‘‘person’’ contained in General
Statutes § 49-22 (a),8 providing that ‘‘no execution shall
issue against any person in possession who is not a
party to the action except a transferee or lienor who
is bound by the judgment by virtue of a lis pendens,’’
does not extend to adult family members of the mort-
gagor but, rather, includes only tenants.
On January 7, 2021, the defendant filed an objection
to the motion to reargue, in which she argued that,
because her adult children ‘‘were never parties to this
action, ejectment is improper, and the plaintiff must
commence a summary process action in the housing
court.’’ The defendant argued that the term ‘‘person’’
in § 49-22 (a) is not limited to a tenant. In further support
of that argument, the defendant cited General Statutes
§§ 49-31p and 49-31q, in which the ‘‘legislature used the
term tenant when it intended to limit [the] provision to
tenants.’’ The defendant also relied on the legislative
history of § 49-22 (a), as recited in our Supreme Court’s
decision in Tappin v. Homecomings Financial Net-
work, Inc., 265 Conn. 741, 757, 830 A.2d 711 (2003).
Specifically, the defendant pointed to a statement by
Senator Howard T. Owens, Jr., during the introduction
of the bill, in 1984, that ‘‘it would prohibit ejectment of
any person who is in possession of real estate such as
a tenant unless such person is named as a party to the
foreclosure lawsuit.’’ (Emphasis added; internal quota-
tion marks omitted.) Id.
In her objection, the defendant acknowledged that
she had agreed in the court-approved stipulation to
vacate the property by midnight on April 7, 2020. The
defendant argued, however, that the stipulation did not
prohibit the court from exercising its discretion not to
order ejectment and argued further that her compliance
with the stipulation had been rendered impracticable.9
The court, Spader, J., heard argument on the plain-
tiff’s motion to reargue the clerk’s rejection of its appli-
cation for an execution of ejectment on January 12,
2021. In its memorandum of decision issued on January
15, 2021, the court denied the plaintiff’s motion to rear-
gue. The court prefaced its decision with the concern
that, ‘‘[a]lthough this has been an issue of constant
discussion among clerks seeking guidance on
ejectments,’’ there was no controlling appellate author-
ity.
After noting Superior Court cases in which courts
had permitted the ejectment of nonparty adult family
members, the court stated that the present case
involved an additional issue—that the defendant had
‘‘proactively advised the court that there were no other
adults in possession of the premises nor would she
allow any adults to gain possession of the premises.’’
The court stated that it had relied on the representations
the defendant made in the stipulation when rendering
the judgment.
The court then turned to equitable considerations
with respect to the plaintiff, the defendant, and the
nonparty adult children. The court first stated that the
plaintiff had alleged that the defendant had not paid
the mortgage in four years and that the plaintiff has paid
the property taxes and insurance while the defendant
resides on the property. The court observed: ‘‘Eventu-
ally, however, the plaintiff will recover possession of
the property and will be able to recoup its investment.’’
The court noted that the plaintiff had named the defen-
dant’s former husband and his business as defendants
in the foreclosure action on the basis of only their
possession of the property and that it could have added
all adults in possession at the time of commencement
of the action. The court stated that it ‘‘ha[d] to consider
equity to [the adult children], as well.’’ With respect
to the defendant, the court found that she was ‘‘in a
heightened risk group for COVID-19’’ and considered
her failure to advise the plaintiff and the court that her
adult children were still residing on the property.
The court determined that permitting the ejectment
to proceed against the defendant’s adult children would
deprive them of due process, as they are not parties to
the action and there is no judgment against them. The
court reasoned: ‘‘While the adult children may not have
independent rights to possession from their mother’s
rights, they still have due process rights to be heard
before the court sends a state marshal to their house
to dispossess them. The plaintiff has not made them
parties to this case, nor have they, themselves, applied
to become parties. They are adults and they are not
represented by their mother nor her attorney.’’
The court then stated: ‘‘There also has to be a bright
line to protect clerks statewide that are processing
ejectments. When persons are included on ejectment
applications that are not parties to the action, it should
not be the clerk’s responsibility to independently guess
whether they are children, spouses or parents of the
parties to the case—they should only be subject to an
ejectment if they are actually named and served parties
to the specific case in which the judgment was ren-
dered. This court believes that clerks properly reject
ejectments that are not in compliance with this bright-
line rule.’’
The court concluded: ‘‘Again, [the defendant’s adult
children] no longer have a right to possess the premises.
They are not bona fide tenants, but this court will not
cause their dispossession without due process because
it has no jurisdiction to do so. They will have no defense
to the cause of action if they are made parties to the
foreclosure or if a summary process action is com-
menced, but they cannot be subject to ejectment until
the court is assured that they received due process.’’10
(Footnote omitted.) This appeal followed.
On appeal, the plaintiff claims that the court erred
in denying its motion to reargue the clerk’s rejection
of its application for an execution of ejectment. Specifi-
cally, it presents a matter of first impression for the
appellate courts of this state—whether § 49-22 (a)
offers protection from ejectment to a mortgagor’s adult
children possessing the property following a judgment
of foreclosure and the passing of title, when such adult
family members had not been made parties to the fore-
closure action.
After filing this appeal, the plaintiff commenced an
omitted party action against the defendant’s adult chil-
dren pursuant to General Statutes § 49-30 (omitted
party action).11 See Retained Realty, Inc. v. LeComte,
Superior Court, judicial district of Stamford-Norwalk,
Docket No. CV-XX-XXXXXXX-S. On December 14, 2021,
the court, Spader, J., rendered a judgment of strict
foreclosure in the omitted party action, and the court
set a law day for the adult children of January 11, 2022.
Id. That law day passed. On January 12, 2022, the plain-
tiff filed in the omitted party action an application for
an execution of ejectment, naming the adult children
as persons in possession.12 Id. On January 13, 2022, the
adult children filed an objection, arguing that the appeal
in the present case had resulted in a stay of execution
of the foreclosure judgment, and granting the applica-
tion for an execution of ejectment in the omitted party
action would violate that stay. Id. On January 26, 2022,
the plaintiff withdrew its application for an execution
of ejectment, and, the next day, the objection thereto
also was withdrawn. Id. No appeal was taken in the
omitted party action.
On January 28, 2022, the plaintiff filed in the present
action a motion for termination of the stay. It argued
that the court, in the due administration of justice,
should terminate the automatic stay of execution while
it prosecutes its appeal, given that the ‘‘trial court has
now entered separate, final judgments of strict foreclo-
sure where the law days have passed against each of
the three individuals who claim possession of the prop-
erty.’’ The plaintiff further argued that the outcome of
the present appeal ‘‘has no bearing on whether [the
defendant] or her children may retain possession of the
property.’’ The defendant filed an objection.13 On April
1, 2022, the court, Spader, J., granted the motion for
termination of the stay, describing it as a request to
terminate the stay to issue an ejectment as to the defen-
dant, which ‘‘is not contested as to the plaintiff’s right
to that relief, nor is an issue on appeal.’’ The court
ordered that, ‘‘to the extent that any stay exists to that
specific, nonappealed issue, the stay is properly termi-
nated for the due administration of justice. The court
notes that the plaintiff brought a separate action against
the nonparties and an ejectment is properly issued in
that matter.’’
On April 11, 2022, the defendant filed with this court
a motion for review of the court’s order terminating
the stay. The defendant requested that this court reverse
the termination order and order that the appellate stay
remain in effect for the pendency of this appeal. The
plaintiff filed an objection to the motion for review and
a motion to expedite this court’s ruling on the motion
for review. On April 27, 2022, this court issued an order
granting review but denying the relief requested and an
order stating that no action was necessary with respect
to the motion to expedite.
On May 9, 2022, the plaintiff filed, in the omitted party
action, an application for an execution of ejectment
seeking to eject the adult children. Retained Realty,
Inc. v. LeComte, supra, Superior Court, Docket No. CV-
XX-XXXXXXX-S. On May 17, 2022, the plaintiff filed, in
the present action, an application for an execution of
ejectment seeking to eject the defendant.14 The clerk
granted both applications on May 27, 2022, and issued
both executions of ejectment that same day. See id.
Following the issuance of both executions of
ejectment, this court, sua sponte, ordered the parties to
file memoranda ‘‘giving reasons, if any, why the appeal
should not be dismissed as moot in light of the issuance
of the execution of ejectment as it does not appear that
there is any practical relief that can be given to the
appellant in this case.’’ On August 15, 2022, the parties
filed their supplemental memoranda. The defendant
submits that the appeal should be dismissed as moot,
while the plaintiff urges this court to consider the merits
of the appeal because its claim satisfies the ‘‘capable
of repetition, yet evading review’’ exception to the
mootness doctrine.
With these facts and procedural history in mind, we
turn to whether the plaintiff’s claim is reviewable by
this court. ‘‘Mootness is a question of justiciability that
must be determined as a threshold matter because it
implicates this court’s subject matter jurisdiction. . . .
Justiciability requires (1) that there be an actual contro-
versy between or among the parties to the dispute . . .
(2) that the interests of the parties be adverse . . .
(3) that the matter in controversy be capable of being
adjudicated by judicial power . . . and (4) that the
determination of the controversy will result in practical
relief to the complainant. . . . 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.’’ (Citations omitted; internal
quotation marks omitted.) Renaissance Management
Co. v. Barnes, 175 Conn. App. 681, 685–86, 168 A.3d
530 (2017). ‘‘In determining mootness, the dispositive
question is whether a successful appeal would benefit
the plaintiff or defendant in any way.’’ (Internal quota-
tion marks omitted.) Wendy V. v. Santiago, 319 Conn.
540, 545, 125 A.3d 983 (2015).
In the present case, the plaintiff, in its appellate brief,
requested as relief that this court ‘‘reverse the trial
court’s decision denying the application for ejectment
and remand the matter with orders to approve the appli-
cation for ejectment with no additional stays to enter
in accordance with the stipulation/judgment.’’ During
the pendency of this appeal, the plaintiff was afforded
that relief, in that the applications for executions of
ejectment were granted, and the executions of
ejectment were issued. Thus, no practical relief can be
afforded to the plaintiff.
We note, however, that ‘‘an otherwise moot question
may qualify for review under the capable of repetition,
yet evading review exception. To do so . . . it must
meet three requirements. First, the challenged action,
or the effect of the challenged action, by its very nature
must be of a limited duration so that there is a strong
likelihood that the substantial majority of cases raising
a question about its validity will become moot before
appellate litigation can be concluded. Second, there
must be a reasonable likelihood that the question pre-
sented in the pending case will arise again in the future,
and that it will affect either the same complaining party
or a reasonably identifiable group for whom that party
can be said to act as surrogate. Third, the question
must have some public importance. Unless all three
requirements are met, [the appeal] must be dismissed as
moot.’’ (Internal quotation marks omitted.) Brookstone
Homes, LLC v. Merco Holdings, LLC, 208 Conn. App.
789, 800–801, 266 A.3d 921 (2021).
‘‘The first requirement of the foregoing test reflects
the functionally insurmountable time constraints pres-
ent in certain types of disputes. . . . Paradigmatic
examples are abortion cases and other medical treat-
ment disputes. . . . The basis for the first requirement
derives from the nature of the exception. If an action
or its effects is not of inherently limited duration, the
action can be reviewed the next time it arises, when it
will present an ongoing live controversy. Moreover, if
the question presented is not strongly likely to become
moot in the substantial majority of cases in which it
arises, the urgency of deciding the pending case is sig-
nificantly reduced. Thus, there is no reason to reach
out to decide the issue as between parties who, by
hypothesis, no longer have any present interest in the
outcome.’’ (Citation omitted; internal quotation marks
omitted.) Wendy V. v. Santiago, supra, 319 Conn. 546;
see also Ruffin v. Commissioner of Correction, 89
Conn. App. 724, 728, 874 A.2d 857 (2005) (‘‘the evading
review concept implicates the notion of time and its
likely effect on a court’s ability to review an action or
claim’’ (internal quotation marks omitted)).
We conclude that this case does not meet the first
requirement under the capable of repetition, yet evading
review exception, in that the action is not of inherently
limited duration. The plaintiff is challenging the court’s
denial of its motion to reargue the clerk’s rejection of
its application for an execution of ejectment because,
in that application, it sought to eject nonparties to the
foreclosure. The challenged action, namely, the court’s
declining to eject nonparties from the property, is not,
by its very nature, of limited duration. See Wendy V. v.
Santiago, supra, 319 Conn. 546–47. This case would
not have become moot before appellate litigation could
have concluded had the plaintiff not availed itself of the
alternative avenue of an omitted party action, through
which it ultimately obtained the relief it sought in this
appeal.15 Thus, the plaintiff’s appeal was rendered moot
not due to the ‘‘inherently limited duration’’ of the pro-
ceeding but due to the plaintiff’s actions in pursuing its
requested relief through the alternative avenue of an
omitted party action. See Brookstone Homes, LLC v.
Merco Holdings, LLC, supra, 208 Conn. App. 802
(‘‘appeal was rendered moot not due to the ‘inherently
limited duration’ of the proceeding before the trial court
but due to [the] failure [of the appellants] to seek the
appropriate remedy from this court’’).
In sum, this case involves no functionally insurmount-
able time constraints. Rather, it presents a challenge
to an ‘‘action [that] can be reviewed the next time it
arises, when it will present an ongoing live contro-
versy.’’ Loisel v. Rowe, 233 Conn. 370, 384, 660 A.2d
323 (1995). Accordingly, this case does not fall within
the capable of repetition, yet evading review exception
to the mootness doctrine.
The appeal is dismissed.
In this opinion the other judges concurred.
1
The plaintiff also named as defendants Jonathan B. LeComte, the former
husband of Denise E.A. LeComte, who filed an answer and disclosure of
no defense, and Old World Ceramics, Inc., which was alleged to be in
possession of the property and subsequently was defaulted for failure to
appear. Neither Jonathan B. LeComte nor Old World Ceramics, Inc., is
participating in this appeal. We therefore refer to Denise E.A. LeComte as
the defendant.
2
We note that Nichols is spelled differently throughout the record.
3
See footnote 13 of this opinion.
4
The defendant has been represented by counsel at all relevant times,
including at the time the stipulation was executed by the defendant and
filed with the court.
5
Pursuant to General Statutes § 51-52 (a), ‘‘[c]lerks shall . . . issue execu-
tions on judgments . . . .’’
6
See Title VII of the Helping Families Save Their Homes Act of 2009,
known as the Protecting Tenants at Foreclosure Act of 2009, Pub. L. No.
111-22, § 702, 123 Stat. 1632, 1660–61.
7
Connecticut has enacted a similar statutory provision, General Statutes
§ 49-31p, which provides in relevant part: ‘‘(a) In the case of any foreclosure
on a federally-related mortgage loan or on any dwelling or residential real
property that has a return date on or after July 13, 2011, any immediate
successor in interest in such property pursuant to the foreclosure shall
assume such interest subject to (1) the provision, by such successor in
interest, of a notice to vacate to any bona fide tenant not less than ninety
days before the effective date of such notice; and (2) the rights of any bona
fide tenant, as of the date absolute title vests in such successor in interest
(A) under any bona fide lease entered into before such date to occupy the
premises until the end of the remaining term of the lease . . . .
‘‘(b) For purposes of this section, a lease or tenancy shall be considered
bona fide only if (1) the mortgagor or the child, spouse, or parent of the
mortgagor under the contract is not the tenant, (2) the lease or tenancy
was the result of an arms-length transaction, and (3) the lease or tenancy
requires the receipt of rent that is not substantially less than fair market
rent for the property or the unit’s rent is reduced or subsidized due to a
federal, state or local subsidy. . . .’’
8
General Statutes § 49-22 (a) provides: ‘‘In any action brought for the
foreclosure of a mortgage or lien upon land, or for any equitable relief in
relation to land, the plaintiff may, in his complaint, demand possession of
the land, and the court may, if it renders judgment in his favor and finds
that he is entitled to the possession of the land, issue execution of ejectment,
commanding the officer to eject the person or persons in possession of the
land no fewer than five business days after the date of service of such
execution and to put in possession thereof the plaintiff or the party to the
foreclosure entitled to the possession by the provisions of the decree of
said court, provided no execution shall issue against any person in posses-
sion who is not a party to the action except a transferee or lienor who is
bound by the judgment by virtue of a lis pendens. The officer shall eject
the person or persons in possession and may remove such person’s posses-
sions and personal effects and deliver such possessions and effects to the
place of storage designated by the chief executive officer of the town for
such purposes.’’
9
Specifically, the defendant argued: ‘‘While the stipulation provided that
[the defendant] would vacate the property as of April 8, 2020 (the day after
the law day), events since the entry of the stipulation have made compliance
impracticable. [The defendant] is sixty-six (66) years old. Older adults like
her are at a greater risk of dying or being hospitalized. . . . In addition,
[the defendant] suffers from heart disease, which increases the risk of severe
illness from COVID-19 in people of any age. . . . Thus, moving in compli-
ance with the stipulation, which could expose [the defendant] to greater
risk of contracting COVID-19, was impracticable under the circumstances.
In addition, while she has attempted to find a rental property, this has
become difficult, in part, because of the skyrocketing rental market in
Fairfield County.’’ (Citations omitted.)
10
The court noted that, pursuant to Governor Ned Lamont’s Executive
Order No. 9T issued on December 23, 2020, the plaintiff was prohibited, at
that time, from commencing a summary process action on or before February
9, 2021.
11
General Statutes § 49-30 provides: ‘‘When a mortgage or lien on real
estate has been foreclosed and one or more parties owning any interest in
or holding an encumbrance on such real estate subsequent or subordinate
to such mortgage or lien has been omitted or has not been foreclosed of
such interest or encumbrance because of improper service of process or
for any other reason, all other parties foreclosed by the foreclosure judgment
shall be bound thereby as fully as if no such omission or defect had occurred
and shall not retain any equity or right to redeem such foreclosed real estate.
Such omission or failure to properly foreclose such party or parties may
be completely cured and cleared by deed or foreclosure or other proper
legal proceedings to which the only necessary parties shall be the party
acquiring such foreclosure title, or his successor in title, and the party or
parties thus not foreclosed, or their respective successors in title.’’
12
Also on January 12, 2022, the plaintiff filed, in the present action, a
second application for an execution of ejectment, naming only the defendant
as the person in possession. On January 13, 2022, the defendant filed an
objection thereto, arguing that the automatic appellate stay applies to pre-
vent execution on the judgment. On January 26, 2022, the plaintiff withdrew
the second application for an execution of ejectment and, the next day, the
defendant withdrew her objection thereto.
13
In her objection to the motion for termination of the stay, the defendant
represented that her adult child Alysia A. LeComte was no longer residing
at the property.
14
The plaintiff previously had filed, also in the present action, an applica-
tion for an execution of ejectment on May 9, 2022. The clerk rejected that
application on the basis that it failed to list all dates of judgment.
15
The plaintiff argues in its supplemental brief that ‘‘[t]he question of
whether the intended interpretation of the term ‘person’ in . . . § 49-22
(a) encompasses a mortgagor’s family members and whether those family
members are subject to ejectment without having been named as parties
to the foreclosure action is an issue that is capable of repetition yet evading
judicial review. It is not likely this question, or the ejectment itself will ever
reach appellate review before becoming moot due to the pursuit of alternate
avenues such as summary process or like here, an omitted party action
concludes before [a] decision is rendered on appeal. While an appeal on an
ejectment is pending, like here an omitted party action can proceed, or even
a summary process action could be instituted. Given the length and cost of
an appeal, a mortgagee will more likely than not attempt another avenue
altogether or while an appeal is pending.’’
We disagree with the plaintiff. The availability of alternative avenues, and
the plaintiff’s decision to take advantage of one such avenue, does not assist
with the conclusion that the challenged action is of limited duration. This
case became moot only because the plaintiff chose a separate course of
action to pursue and obtained the executions of ejectment it sought.