Deutsche Bank National Trust Co. v. Powell

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The syllabus and procedural history accompanying an opinion that appear in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced or distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ************************************************  Deutsche Bank National Trust Co. v. Powell DEUTSCHE BANK NATIONAL TRUST COMPANY, TRUSTEE v. GARY L. POWELL ET AL. (AC 48997) Moll, Westbrook and Wilson, Js. Syllabus The defendant appealed following the trial court’s approval of the foreclosure committee’s motion to approve the deed and sale of certain of his real prop- erty subsequent to the court’s rendering of judgment of foreclosure by sale in favor of the plaintiff. The defendant claimed that the court improperly granted the committee’s motion in violation of an automatic appellate stay that was in effect during the pendency of both his petition for certification to appeal to this court from the trial court’s reentry of the foreclosure judg- ment and rescheduling of the sale date, and his petition to appeal to our Supreme Court from the dismissal by this court of that prior appeal. Held: The trial court abused its discretion in approving the committee sale and deed while the proceedings to enforce or carry out the foreclosure judgment were stayed pursuant to the rules of practice (§§ 61-11 (a) and 84-3 (a)), and the plaintiff’s assertion that any error was harmless such that the sale could stand was unavailing, as, by the plain language of Practice Book § 61-11 (a), the stay provision was mandatory and thus prohibited the sale from proceed- ing; accordingly, the sale was void ab initio, and the order approving the committee sale and deed was reversed and the case remanded with direction to vacate the sale and for further proceedings according to law. Argued June 17—officially released August 18, 2026 Procedural History Action to foreclose a mortgage on certain real prop- erty of the named defendant et al., and for other relief, brought to the Superior Court in the judicial district of New Haven, where the named defendant et al. filed a counterclaim; thereafter, the court, Spader, J., granted the plaintiff’s motions to strike the counterclaim and for summary judgment as to liability only, and ren- dered judgment of foreclosure by sale; subsequently, the court denied the named defendant’s motion to open the judgment, and the named defendant appealed to this court, which dismissed the appeal; thereafter, the court, Stone, J., granted the plaintiff’s motion to reen- ter the foreclosure judgment and to reset the sale date, and the named defendant appealed to this court, which dismissed the appeal; subsequently, the Supreme Court  Deutsche Bank National Trust Co. v. Powell denied the named defendant’s petition for certification to appeal; thereafter, the court, Stone, J., granted the committee’s motion to approve the sale and deed, and the named defendant appealed to this court. Reversed; further proceedings. Gary L. Powell, self-represented, the appellant (named defendant). Victoria L. Forcella, for the appellee (plaintiff). Opinion PER CURIAM. In this residential foreclosure action, the self-represented defendant Gary L. Powell1 appeals, following the trial court’s rendering of judgment of fore- closure by sale in favor of the plaintiff, Deutsche Bank National Trust Company, as Trustee for Morgan Stanley ABS Capital I Inc. Trust 2002-HE3, from the court’s order approving the sale of the mortgaged property on the motion of the committee of sale (committee). The defendant claims that (1) the court improperly granted the committee’s motion because the sale occurred during the pendency of his petition for certification to appeal to our Supreme Court from this court’s dismissal of a prior appeal he had filed in this action, in violation of the automatic appellate stay provided by Practice Book §§ 61-11 (a) and 84-3 (a);2 and (2) “procedural missteps” by the plaintiff deprived him of due process of law and independently justify reversing the court’s approval of the sale.3 We agree with the defendant’s first claim 1 Gail M. Powell, LVNV Funding, LLC, and the United States of Amer- ica, Internal Revenue Service, were also named as defendants in the action. These defendants have not participated in the present appeal. We therefore refer in this opinion to Gary L. Powell as the defendant. 2 We note that Practice Book § 84-3 was amended following the events in question. Because the amendment does not affect our analysis, for simplicity, we refer in this opinion to the current revision of the rule. 3 In his reply brief, the defendant also claims that the trial court vio- lated his right to due process of law and committed procedural errors by (1) denying him “a meaningful opportunity to be heard” in rejecting unspecified requests for continuances, proceeding to judgment despite unspecified “active disputes,” and preventing him from fully litigating unspecified “settlement and payoff issues”; (2) “ignor[ing] ongoing  Deutsche Bank National Trust Co. v. Powell and, accordingly, reverse the court’s order approving the sale. In light of this disposition, we do not reach the defendant’s second claim.4 The following facts and procedural history are relevant to this appeal. The plaintiff commenced the present action in May 2016 to foreclose on a mortgage that the defendant had executed on real property in Wallingford. In October 2017, after a period of unsuccessful media- tion, the defendant filed an answer and an eleven count counterclaim against the plaintiff and several related entities. The plaintiff subsequently moved for summary judgment on the issue of the defendant’s liability and moved to strike all counts of the counterclaim on the ground that they lacked any reasonable nexus to the federal litigation” against the plaintiff’s loan servicer, the servicer’s predecessors, and the servicer’s law firm; and (3) failing to “consider . . . disputes” regarding a “confidential settlement agreement,” “[c]laims that payoff instructions were withheld,” and “[a]ssertions that perfor- mance was prevented by [the plaintiff].” The defendant did not raise these claims in his principal appellate brief, and, accordingly, we will not consider them. See, e.g., State v. Council, 344 Conn. 113, 121, 277 A.3d 1251 (2022) (“It is axiomatic that a party may not raise an issue for the first time on appeal in [his] reply brief. . . . Although the function of the appellant's reply brief is to respond to the arguments and authority presented in the appellee's brief, that function does not include raising an entirely new claim of error.” (Internal quotation marks omitted.)). 4 Moreover, the defendant’s second claim appears to be unpreserved. He cites as missteps the plaintiff’s (1) “refusal to clarify escrow obliga- tions,” presumably a reference to the terms of a trial loan modification agreement reached during mediation in 2017; (2) “failing to respond to court-appointed agents,” presumably a reference to the plaintiff’s alleged failure to reply to an email from the committee seeking confirmation that it should proceed with the sale; and (3) “initiating sale enforcement during appellate review . . . .” The defendant did not raise any of these issues with the trial court in his memorandum of law in opposition to the committee’s motion for approval of the sale and deed, and the trial court therefore never considered them in the first instance. “Our appellate courts, as a general practice, will not review claims made for the first time on appeal. . . . [A]n appellate court is under no obligation to consider a claim that is not distinctly raised at the trial level. . . . [B]ecause our review is limited to matters in the record, we [also] will not address issues not decided by the trial court.” (Internal quotation marks omitted.) Casner v. Roberts, 237 Conn. App. 515, 525, 352 A.3d 624 (2026).  Deutsche Bank National Trust Co. v. Powell making, validity, or enforcement of the mortgage or note. The trial court, Spader, J., granted the motion to strike in April 2018 and rendered summary judgment in June 2018. The court subsequently rendered judgment of foreclosure by sale in July 2018. Over the next several years, the trial court opened the judgment and reset the sale date sixteen times. The delays were largely precipitated by the COVID-19 pandemic, Gail M. Powell’s commencement of five bankruptcy actions, and the defendant’s filing of two appeals.5 On January 8, 2025, following the dismissal of the defendant’s second appeal, the plaintiff moved the trial court to set a new sale date. The court granted the plain- tiff’s motion on February 3, 2025, and rescheduled the sale for the seventeenth time to April 12, 2025. Within the time provided by Practice Book § 63-1, the defendant again appealed; see Deutsche Bank National Trust Co. v. Powell, Connecticut Appellate Court, Docket No. AC 48432 (filed February 3, 2025); thereby giving rise to an automatic appellate stay pursuant to Practice Book § 61-11 (a).6 This court ultimately dismissed that third 5 On March 6, 2024, the defendant filed a motion to open the judgment and cancel the sale that had been scheduled for April 6, 2024. The trial court issued an order denying the motion to open on April 1, 2024, from which the defendant appealed. See Deutsche Bank National Trust Co. v. Powell, Connecticut Appellate Court, Docket No. AC 47531 (filed April 5, 2024). This appeal was dismissed on May 21, 2024, due to the defendant’s failure to file required documents. Shortly thereafter, the plaintiff filed a motion for an order resetting the sale date, which the trial court granted on July 8, 2024, reschedul- ing the sale for September 21, 2024. The defendant again appealed. See Deutsche Bank National Trust Co. v. Powell, Connecticut Appellate Court, Docket No. AC 47840 (filed July 25, 2024). This court dismissed AC 47840 as frivolous on September 25, 2024. 6 Practice Book § 61-11 (a) provides: “Except where otherwise pro- vided 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 before the appeal period has expired, such proceedings shall be stayed until the final determination of the cause. If the case goes to judgment on appeal, any stay thereafter shall be in accordance with Section 71-6 (motions for reconsideration), Section 84-3 (petitions for certification by the Connecticut Supreme  Deutsche Bank National Trust Co. v. Powell appeal as frivolous on March 19, 2025. Thereafter, on March 28, 2025, the defendant, within the time permit- ted by Practice Book § 84-4 (a), petitioned our Supreme Court for certification to appeal from the dismissal of his appeal in AC 48432. Consequently, pursuant to Practice Book § 84-3,7 the proceedings remained stayed pending our Supreme Court’s ruling on the petition for certifi- cation. Notwithstanding the stay of proceedings, the sale of the property proceeded as scheduled on April 12, 2025. Thereafter, on April 30, 2025, our Supreme Court denied the defendant’s petition for certification to appeal from the dismissal of his appeal from the trial court’s Feb- ruary 2025 judgment. The committee then moved the trial court for approval of the committee sale and deed on May 5, 2025. On May 6, 2025, the defendant filed a memorandum of law in opposition to the committee’s motion, arguing that the sale should be vacated because it had been conducted in violation of Practice Book § 61-11 (a) due to the pendency of his petition for certification to appeal to the Supreme Court. On July 28, 2025, the trial court, Stone, J., granted the committee’s motion, approving the sale and deed. This appeal followed. The defendant claims that the trial court improperly granted the committee’s motion to approve the sale because the sale was conducted in violation of the auto- matic appellate stay in place during the pendency of his petition for certification to appeal to our Supreme Court from this court’s dismissal of his prior appeal. The plain- tiff responds that, to the extent the trial court erred in approving the sale, the error was harmless because, by the time the court ruled on the committee’s motion to Court), and Section 71-7 (petitions for certiorari by the United States Supreme Court).” 7 Practice Book § 84-3 (a) provides in relevant part: “In any action in which a stay of proceedings was in effect during the pendency of the appeal, proceedings to enforce or carry out the judgment shall be stayed until the time to file the petition has expired. . . . If a petition by a party is timely filed, the proceedings shall continue to be stayed until the Supreme Court acts on the petition . . . .”  Deutsche Bank National Trust Co. v. Powell approve the sale, the defendant’s petition for certifica- tion to appeal to our Supreme Court had been denied and no appellate stay was then in effect. We agree with the defendant. It is well established that “a foreclosure sale conducted while an appellate stay is in effect is void ab initio.” Finance of America Reverse, LLC v. Henry, 222 Conn. App. 810, 822–23, 307 A.3d 300 (2023). As this court previously has observed, Practice Book § 61-11 (a) “serves to stay proceedings to enforce or carry out the judgment . . . until the time to take an appeal has expired, thereby forbidding . . . a sale in a foreclosure by sale.” (Internal quotation marks omitted.) RAL Management, Inc. v. Valley View Associates, 88 Conn. App. 430, 439, 872 A.2d 462 (2005), rev’d on other grounds, 278 Conn. 672, 899 A.2d 586 (2006). This view is in accord with our Supreme Court’s statement in Farmers & Mechan- ics Savings Bank v. Sullivan, 216 Conn. 341, 579 A.2d 1054 (1990), which it reiterated in RAL Management, Inc. v. Valley View Associates, 278 Conn. 672, 684 n.10, 899 A.2d 586 (2006), that, while an appellate stay is in effect, “a [foreclosure] sale cannot take place . . . and any title derived through such stayed proceedings would be subject to defeasance.” (Internal quotation marks omit- ted.) Farmers & Mechanics Savings Bank v. Sullivan, supra, 349 n.7. In the present case, the defendant’s timely filing of the appeal in AC 48432 served to stay all proceedings to enforce or carry out the trial court’s February 3, 2025 judgment pursuant to Practice Book § 61-11 (a), thereby forbidding the committee from conducting the sale until the final determination of the appeal. Although this court dismissed that appeal on March 19, 2025, the dis- missal did not terminate the automatic appellate stay because the defendant timely filed a petition for certi- fication to appeal to our Supreme Court. Pursuant to Practice Book § 84-3 (a), “[i]f a petition [for certification to appeal] is timely filed, the proceedings shall continue to be stayed until the Supreme Court acts on the petition  Deutsche Bank National Trust Co. v. Powell . . . .” Because our Supreme Court did not act on the defendant’s petition until April 30, 2025, the proceed- ings remained stayed at the time that the committee sale was conducted on April 12, 2025. Consequently, the sale was void ab initio. The plaintiff’s contention—that we may affirm the trial court’s approval of the sale under a harmless error analysis despite the sale being a legal nullity—is unavail- ing. This court squarely rejected such an argument in First Connecticut Capital, LLC v. Homes of Westport, LLC, 112 Conn. App. 750, 966 A.2d 239 (2009). In that case, the named defendant appealed from the trial court’s approval of a committee sale that occurred while a Prac- tice Book § 61-11 (a) stay was in effect. Id., 766. Before ultimately deciding to reverse the judgment and remand the case to the trial court with direction to set a new sale date, this court considered whether, in light of the trial court’s equitable powers in foreclosure actions, “a court facing a committee sale that transpired in contravention of an appellate stay could nevertheless discern whether that sale was unfair to the defendant or whether the sale price was inadequate . . . .” Id., 763–64. This court ultimately held that such an argument—which it noted “essentially amount[ed] to a harmlessness analysis”—was “untenable” for multiple reasons. Id., 764. Chief among these reasons was this court’s determina- tion that, “by [its] plain language, the [stay provision in Practice Book § 61-11 (a) is] mandatory” and “plainly prohibited the committee sale from proceeding . . . .” Id. The court also deemed itself bound by the decision in Hartford National Bank & Trust Co. v. Tucker, 181 Conn. 296, 297–98, 435 A.2d 350, cert. denied, 449 U.S. 956, 101 S. Ct. 363, 66 L. Ed. 2d 221 (1980), in which our Supreme Court held that a trial court’s modifica- tion of a judgment of foreclosure by sale to provide for a public sale during the pendency of the defendant’s appeal, “and the sale held pursuant thereto, were with- out judicial authority” and deprived the defendant of due process of law. First Connecticut Capital, LLC v.  Deutsche Bank National Trust Co. v. Powell Homes of Westport, LLC, supra, 112 Conn. App. 765. Finally, this court found significant our decisional law indicating that, “in a foreclosure by sale, [t]he court is the vendor . . . and the committee of sale is the mere agent of the court” such that “whatever discretion the committee may have certainly cannot extend to selling the property . . . .” (Internal quotation marks omitted.) Id., 765–66. In light of these considerations, this court concluded that the trial court had committed reversible error in its application of the law and abused its discre- tion in approving the committee sale and deed while the proceedings to enforce or carry out the judgment of foreclosure by sale were stayed. See id., 766. We conclude likewise in the present case. The order approving the committee sale and deed is reversed and the case is remanded with direction to vacate the sale and for further proceedings according to law.8 8 See Wahba v. JPMorgan Chase Bank, N.A., 349 Conn. 483, 316 A.3d 338 (2024).