PITTMAN, JUDGE.
The defendant Delma Medina has filed a Supplemental Motion to Open Judgment of Strict Foreclosure and Set Aside, #119. The relevant procedural history of the defendant's attempt to set aside the judgment of foreclosure in this case is outlined in an earlier memorandum of decision filed by this court, #117. Because foreclosure actions are equitable in nature, most motions to open judgment are presented in open court by a defendant appearing pro se or appearing by counsel so that the court can have an opportunity to weigh competing facts, and legal claims and make a prompt, fair decision that reflects an appropriate balancing of the interests of the mortgagee/creditor who is usually owed a sizable debt, and the mortgagor/debtor who may be on the verge of losing a family's home. This is a heavy responsibility that this court takes quite seriously. Accordingly, this court welcomes and indeed depends on the zealous advocacy of counsel for plaintiffs and defendants in these cases.
It is rare for this court to write a memorandum of decision on a motion to open a judgment of foreclosure, let alone two such memoranda in the same file. But this court feels obligated to record the rationale for once again denying a motion to open a judgment of strict foreclosure in this case.
The earlier memorandum of decision of this court, dated April 1, 2003, addressed two pending motions of the defendant Delma Medina, filed by defendant's counsel Attorney John Kucej. The first was an application for protection from foreclosure, which the court was compelled to deny, citing three reasons in its written memorandum: 1) that the defendant's application was filed eleven weeks past the statutory deadline for filing such an application; 2) that the application was not accompanied by the documentation required of such applications in Conn. Gen. Stat. § 49-31f; and 3) that counsel for the defendant failed to appear in court on behalf of his client to proceed on the application. The deficient CT Page 7385 performance of counsel in each of these categories constituted sufficient grounds separately to deny the application; and the court did in fact deny the application.
The earlier memorandum also addressed the defendant's first motion to open judgment. In that motion, Attorney Kucej alleged that the reason he failed to take any steps to oppose the motion or even to attend the calendar call on the plaintiff's Motion for Judgment of Strict Foreclosure (which was marked ready and arguable) was because of what Attorney Kucej believed were ongoing negotiations between plaintiff and defendant to work out the loan. At the call of the calendar, plaintiff's counsel (who attended the call pursuant to the ready/arguable marking) had denied that plaintiff was engaged in any such negotiations. The court then denied the defendant's first motion to open because, as stated in the court's memorandum of decision, the motion was unverified by the defendant or defendant's counsel per Conn. Gen. Stat. § 52-212 (b) and, of course, because there was a set of contested questions of fact upon which the decision on the motion might hinge, namely whether there were any realistic substantive negotiations underway which might have served to mislead counsel for the defendant into believing that the plaintiff considered the matter either to be resolved or worthy of postponing. The problem was compounded when counsel failed to appear in court to proceed on the motion to open. In denying the motion, the court declined to disturb the running of law days which began on April 1, 2003, and observed the following in its memorandum:
The attorney for the defendant has seemingly failed to be attentive to the orderly process of this foreclosure case on the court's docket. The papers filed on behalf of the defendant have been late, incomplete, and ineffectual. Attorney Kucej has repeatedly failed to appear in court to advocate for his client at events which could have resulted at least in significant relief from the speedy progression of this case as requested by the plaintiff. Under the circumstances, the defendant has failed to provide the court with any reliable information upon which the court could consider acting favorably on any of the filings of the defendant.
Title vested in the plaintiff on April 4, 2003. On April 9, 2003, counsel for the defendant filed the instant motion, #119, entitled Supplemental Motion to Open Judgment of Strict Foreclosure and Set Aside. Appended to it, Attorney Kucej attaches four pieces of correspondence that are represented by him to be evidence of the fact that there had previously been attempts to negotiate a settlement of the case. In his motion, Attorney Kucej states that he is attaching these letters because his "original motion to re-open, dated March 11, 2003 . CT Page 7386 . . did not have documentation appended to it as to the negotiation attempts." While that is true, that was not a basis used by the court in denying the earlier motion. Rather the court based its decision, inter alia, on the failure of counsel to file the first motion as a verified document pursuant to the statutory requirement, supra; and the supplemental motion is likewise unverified. Moreover Conn. Gen. Stat. § 49-15 (a) states that no judgment of strict foreclosure shall be opened after title has become absolute in any encumbrancer. So that even if all of the defects in the preparation and performance of counsel are overlooked by the court, counsel's motion must still fail.
The court once again writes at some length on this matter because the court is concerned that Attorney Kucej is entirely unfamiliar with both the substantive law of foreclosure and the procedure by which foreclosure matters proceed on the docket of the Superior Court. Even more troubling, the court is concerned that he is familiar with the law and the procedure but is either being inattentive to the interests of his clients, or, is representing to his clients that certain favorable results are possible when foreclosure law or procedure absolutely preclude such relief.
Because this motion to open has once again been filed without a verification of any kind, and because the provisions of Conn. Gen. Stat. § 49-15 (a) prohibit the court from opening the judgment at this late date, the defendant's Supplemental Motion to Open Judgment of Strict Foreclosure and Set Aside, #119, is denied. Because of the concerns stated by the court in the penultimate paragraph of this opinion, the court orders that this Memorandum of Decision and the previous Memorandum of Decision, #117, be sent by the clerk to the Statewide Bar Counsel for the purpose of initiating an investigation into whether Attorney Kucej has failed to comply with Rules of Professional Conduct §§ 1.1 (Competence), 1.3 (Diligence), and 1.4 (Communciation) in relation to his representation of Delma Medina in this case.
Patty Jenkins Pittman, Judge CT Page 7387