vacating actioncp

8/9/2019 Vacating ActionCP

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1) default judgment was ordered. This was because of the blizzard at that timethis agent was stuck in back up traffic that made him late.

2) Judge Moore should have given a half hour grace period before ruling defaultjudgment. Since it would have allowed plaintiffs defense to be considered with the

trail brief filed with the clerk at 2:27pm. Since the judge had left the court room when

defendants agent arrived to file the trial brief.

3) Improper notice, Judge Moore ruled on the 23rdof February to deny 96 page motion,filed January to justify that in very least an adjournment was appropriate.

4) Misleading posting on case disposition site of the Judical court. Specifically, the trial onthe 25th was posted twice, where before one of the dates stated continuance. This

mislead defendant to believe the motion for continuance was granted. Consequently, it

was only the day before that defendant learned the trial was not going to be adjorned.

5) Plaintiff is without funds that would have not made it possible to have paid for travel ifhe wanted to attend and this fact of being impoverished was brought to the attention of

the judges in his papers.

Wherefore, defendant has standing to have the case restored to the docket pursuant to C.G.S. 52-212.-

Opening defaultupon default or nonsuit;that states:

(a) Any judgment rendered. . . upon a default. . . in the superior court may be set aside,within four months following the date on which it was rendered . . . , and the case reinstated on

the docket, on [$75]costs . . . , upon . . . written motion of any party or person prejudiced

thereby, showing . . . good cause of . . . defense in whole . . . existed at the time of the rendition

of the judgment . . . , and that the . . . defendant was prevented by mistake, accident or other

reasonable cause from prosecuting the action or making the defense.


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(b) The . . . written motion shall be verified by the oath of the complainant . . . , shall state ingeneral terms the nature of the claim or defense and shall particularly set forth the reason why

the plaintiff or defendant failed to appear.

(c) The court shall order reasonable notice of the pendency. . . written motion to be given tothe adverse party, and may enjoin him against enforcing the judgment or decree until the

decision upon the complaint or written motion.

A party moving for the opening of a judgment must make a two part showing that: (1) a

good defense existed at the time an adverse judgment was rendered; and (2) the defense

was not at that time raised by reason of mistake, accident or other reasonable

cause.(Pelletier v. Goodnoff (1998) 727 A.2d 277, 45 Conn.Supp. 563, affirmed 727

A.2d 229, 52 Conn.App. 360).

FIRST POINT, DENIAL OF ADJURNMENT WAS UNREASONABLE

Wherefore the court acted unreasonably and in clear abuse of its discretion by rejecting the

good cause presented by defendant to adjourn the case for six weeks when he could appear.

Since the facts shown in the papers established good cause to justifythat the court should not

adhere to its initial ruling on Jan 25

th

2010. Whereas, in this ruling Judge Grogins stated that the possibility of an adornment was contingent upon the payment of defendant of the Use &

Occupancy by February 1stand a letter from a current treating physician.

Conn. Gen.Stat. 5287 Continuance on account of absent or nonresident defendant. Ex-

ceptions (a)Every civil action in which the defendant is an inhabitant of this state but is

absent from the state at the commencement of the action and continues to be absent until

after the return day, without having entered any appearance therein, shall be continued or

postponed for thirty days by order of the court. If the defendant does not then appear and no

special reason is shown for further delay, judgment by default may be rendered against him.

Accordingly, special reason was shown by defendants doctors that he was medically advised not

to travel at this time and defendant requested the hearing to be adjourned for another 6 weeks.

This was established by letters from defendants pulmonary specialist (the head of the dept. at


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Greenwich Hospital (exh ) that was faxed to the In addition to the doctor who had been treating

him with having defendant due to a recent injury he sustained in an auto accident. This doctor

required defendant to attend physical therapy three times a week (the appointment sheet was

faxed to Judge Grogins in mid-February).

Moreover, in plaintiffs motions filed on the 25, 26, and 29th ofJanuary, defendant brought to the

courts attention that the law states that the U&O is unenforceable, due to plaintiffs misconduct

ofconstructive eviction. Further, that the court had letters from defendants doctors to justify he

was unable to travel at this time.

Under Connecticut law,atenantmaybeexcusedfrompayingrenttothe landlord

based on the doctrineofconstructiveeviction,whichariseswhen the landlord

notphysicallydispossessingthetenantfromthepremises,

whichrendersthepremisesuntenantable. (Welschv. Groat, 95 Conn. App. 658, 666, 897

A.2d 710 (2006).Whetherthe premises are

untenantableisaquestionoffactforthetrier.( Johnson v. Fuller 190 Conn. 552 (Conn.

1983).For the untenantabilityhasbeenestablished,thetenantmustallegeall of the

following four elements:(1) theuntenantableconditionwascausedby the landlord;

(2) the tenant vacated the premises because of that specific condition; and (3) the tenant

did not vacate until affording the landlord an opportunity to remedy the

condition.(Heritage Square, LLC. v.Eoanou, 61 Conn. App. 329 (Conn. App. Ct. 2001).

In addition it was brought to the courts attention that the U& O obtained from Judge Moore by

a false declaration of fact by plaintiffs lawyer Kaelin is afruit from a poisoned tree.

Specifically, Kaelin refuted his own entry into the evidence the May 27th

agreement to validate

his claim of50% ownership; albeit based on fraud. Consequently, Kaelin is judiciously estopped

from his own declaration by collateral estoppel as he has refuted his own declaration. Thus,

Kaelins statement of100% ownership was a false representation of a material fact crucial to the

issue being decided by a new Judge (Moore) who first heard the case.


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In effect, the dispute between parties was based on the issue of who possesses paramount title as

corresponding to the pivotal issue to be decided. Thus, if Kaelin informed the court that it was

going by the May 27 agreement that they based their claim of50% ownership,thiswould have of

deprived the court from having the jurisdiction of affirming dominant rights and privileges of

one party over the other with a 50-50 partnership of ownership in the disputed property.

Noteworthy, is thatDefendants lawyer, Mark Katz, did not rebut Kaelins perjury, as in

accordance to his palpable and pervasive pattern of affirming the legal agenda of the opposition.

Trial court's action in deciding motion to open and vacate judgment will not be

disturbed on appeal unless it acted unreasonably and in clear abuse of its discretion.

(W

oodruff v. Riley (2003) 827 A.2d 743, 78 Conn.App. 466, certification denied 835

A.2d 474, 266 Conn. 922).

SEOND POINT DEFENDANT RAISED ISSUE PLAINTIFF DID NOT OWN THE POPERTY

Landowner was only required to allege and prove ownership of the subject property

and for possession in a summary process action. . . .47a-23requires a party a party

seeking summary process to allege and prove ownership of the subject

property.(Trinity United Methodist Church of Springfield, Massachusetts v. Levesque

(2005) 870 A.2d 1116, 88 Conn.App. 661, certification denied 876 A.2d 1200, 274 Conn.

907).

In summary process action, which is special proceeding, relationship oflandlord and

tenant or lessor and lessee must have existed between the parties .( Logan v.

Carrington Publishing Company (1948)16 Conn.Supp. 46).

Accordingly, the disputed issue between parties of who has legal right and privledge of

ownership of the subject properties is known to the court. Therefore, as in accordance to:


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47a-23 requires a party a party seeking summary process to allege and prove ownership of

the subject property. As defendant sets forth a demand that plaintiff prove ownership of the

subject property at the scheduled hearing on this matter.

Trial court abused its discretion in refusing to open default judgment without holding eviden-

tiary hearing on factual question . . . in ruling on motion was dependent on disputed factual

issue of fraud, and thus, due process required that court hold evidentiary hearing on issue. (Tyler

E. Lyman, Inc. v. Lodrini(2003) 828 A.2d 681, 78 Conn.App. 684, certification denied 833 A.2d

468, 266 Conn. 917).

Defendant who filed motion to vacate default judgment on the grounds' that court

lacked jurisdiction over her person, that service was not made in accordance with

applicable statutes, that action was brought in court of improper and illegal venue and

that action was barred had burden of proving allegations contained in motion.

(Genung's, Inc. v. Rice (1976) 362 A.2d 540, 33 Conn.Supp. 554)

THIRD POINT, NO LANDLORD TENANT RELATIONSHIP BETWEENPARITIES

Trial court had inherent authority at any time to open and modifyjudgment

rendered without subject-matter jurisdiction, and thus property owner's failure to

timely file motion to open judgment did not preclude court from opening judgment in

condemnation action that was brought by city's urban redevelopment commission;

property owner alleged that court lacked jurisdiction to enter judgment for

commission because commission acted without statutory authority in obtaining

property.(Urban Redevelopment Com'n of City of Stamford v. Katsetos (2004) 860 A.2d

1233, 86 Conn.App. 236. Eminent Domain 243(1)

The law says under Conn. Gen Statues 47a-1 (I), a tenant is defined as: the lessee,

sub lessee, or person entitled under a rental agreement to occupy a dwelling unit or


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premises to the exclusion of others or as defined by law. Under C. G.S. 47a-1 (d), a

landlord is defined as: the owner, lessor or sub-lessor of a dwelling unit, the building

of which is a part of the premises. It is a well settled in Conn. that a landlord/ tenant

relationship arises from an agreement, either oral or written, whereby one person, the

tenant, enters into possession of land possessed by another, the landlord (Rivera v.

Santiaga, 4 Conn. App. 608, 495 A.2d 1122 (1985)).

The agreement, commonly referred to as a lease, transfers an estate in real property to a

tenant for a stated period. Its distinguishing characteristic is the surrender of possession

of land or tenement by the landlord to the tenant so that he may occupy the land or

tenement leased to the exclusion of landlord himself. (Jo-Mark Sand and Gravel Co. v.

Pantonella, 139 Conn. 598, 601, 96 A 2d 217 (1953). A lease transfers an estate in real

property to a tenant for a stated period, with a reversion to the owner after the expiration

of its lease. (Monarch Accounting Supplies, Inc. v. Preziosa, 170 Conn. 659, 368 A2d 6

(1976).

Accordingly in no manner or form, could business relationship between parties be based on the

agreement (exh A) ever to be justified to be legally viewed as a landlord and tenant

relationship.Neither can a contractual promise based on a breachedoption to buy the property

with a provision of my contributing towards the taxes make it so.

Rather, at best the Court considered an unsubstantiated claim of plaintive being 50-50 owners

with defendant; that plaintiff is named as the manager of the property;and is the executive

manager of the LLCs with 50-50 ownership between parties. This still is with 50-50 ownership

of title that means neither party can overrule the other party to enforce their will. Such an act is

unlawful, since it changes the status-quo from when the alleged 50-50 partnership was

established, and disrupts the equal rights to benefits implied with a 50-50 ownership.


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Under the common law, a judgment rendered by a court can subsequently be opened, . .

. if it is shown that the judgment was obtained by fraud . . . ; these common-law

reasons for opening a judgment seek to preserve fairness and equity. (Nelson v.

Charlesworth (2004) 846 A.2d 923, 82 Conn.App. 710).

F0URTH POINT, LAW STATES PLAINTIFF DOES NOT OWN SUBJECT PROPERTIES

Under Connecticut law, essential elements of "fraud" are the following: (1) false

representation was made as statement of fact; (2) it was untrue and known to be untrue by

party making it; (3) it was made to induce other party to act on it; and (4) latter did so act

on it to his injury.In re:Roberti, 201 B.R. 614.

Under Connecticut law, "constructive trust" is formula through which conscience of

equity finds expression; when property has been acquired in such circumstances that

holder of legal title may not in good conscience retain beneficial interest, equity converts

him to trustee.In reRadcliffe, 317 B.R. 581 (2004).

A "constructive trust" arises when legal title to property is obtained in violation of some

duty owed to the one who is equitably entitled to the title, and property thus obtained is

held in hostility to his beneficial rights of ownership, and all constructive trusts may be

referred to fraud as to their final source. (Van Auken v. Tyrrell, 33 A.2d 339, 130 Conn.

289 (1943).

An act of "conversion" is an unauthorized assumption and exercise of the right of

ownership over goods belonging to another, to the exclusion of the owner's rights, and is

an act of dealing with the property rights of that person in a manner adverse to him,

inconsistent with his right of dominion and to his harm.Falker v. Samperi, 461 A.2d

681, 190 Conn. 412 (1983).Trover1.

A constructive trust arises. . . when a person who holds title to property

is subject to an equitable duty to convey it to another on the ground that


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he would be unjustly enriched if he were permitted to retain it." (Cadle Co.

v. Gabel, 69 Co nn. App . 279, 288, 794 A.2d 1029 (2002)) .

Conversion is defined in Conn. Gen. Stat. 52-577 Conversion:

"Conversion is some unauthorized act which deprives another of his property

permanently or for an indefinite time; some unauthorized assumption and exercise of the

powers of the owner to his harm. The essence of the wrong is that the property rights of

the plaintiff have been dealt with in a manner adverse to him, inconsistent with his right

of dominion and to his harm." (Label Systems Corp. v. Aghamohammadi,270 Conn. 291, 329

(2004).

To establish a cause of action for conversion, a plaintiff must demonstrate that:

1) The defendant, without authorization;2) assumed and exercised ownership over property belonging to another;3) to the exclusion of the owner's rights. (News America Marketing In-Store, Inc.v.Marquis,86Conn. App. 527 (2004), aff'd,276 Conn. 310 (2005).

UnderNew York law, "conversion" is an unauthorized exercise of dominion of control

over property by one who is not THEowner of the property which interferes with and is in

defiance of a superior possessory right of anotherin the property. (Steinmetz v. Toyota

Motor Credit Corp., 963 F.Supp. 1294 (N.Y. 1997)).

Conversion" is an act of willful interference with the personal property of another that is

without justification or that is inconsistent with the rights of the person entitled to the use,

possession, or ownership of the property. (Security Sav. Bank v. Green Tree Acceptance,

Inc., 739, F.Supp. 1342 (Minn. 1990)).

ConnApp. 1995. Proof by "fair preponderance of the evidence" is proof by the better

evidence, evidence having greater weight, more convincing force in fact finder's


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mind.(State v. Haggood, 653 A.2d 216, 36 Conn.App. 753, certification denied 657 A.2d

644, 233 Conn. 904, post-conviction relief denied 1999 WL 233843.Crim Law 560.

Accordingly, plaintiff paid no money for ownership of the subject, only had obtained signatures

from defendant by statutory forgery to create a bad title a bad tile for both RKD Ventures.

Wherefore the Uniform Fraudulent Transference Act establishes that the deed naming

RKD ventures isdefacto subject to being set aside. Since no reasonable consideration was paid

out by plaintiff to obtain the transference of title to the RKD Ventures LLCs. Essentially

plaintiffs transference of ownership is based on being identified as being the lender on the

mortgage to a $40,000.00 on defendants own property. Essentially, committing bank fraud by

fraudulently claiming sole ownership to property achieved under false pretense to have a two

million dollar lean fraudulently placed on someone elses property does not make you the owner

(exhs. b,c d)

FIFTH POINT, COURT HAS NOJURISDICTIONOVERMATTERORPARTIES

Statute governing opening of judgments relates not to jurisdiction over subject matter,

but in jurisdiction over person or parties. (Sicaras v, City of Hartford (1997) 692 A.2d

1290, 44, Co nn.App. 771, certification denied 696 A.2d 140, 241 Conn. 916).

While courts have inherent power to open, correct and modify judgments, duration of

this power is restricted by statute and rule of practice. (CFM of Connecticut v.

Chowdhury (1995) 662 A.2d 1340, 38 Conn.App. 745, certification granted in part 667

A.2d 1270, 235 Conn. 933, .illumed and remanded 685 A.2d 1108, 239 Conn, 375).

Trial Court improperly denied motion of transferee, who was conveyed real property by

fraudulent transfer, to open and set aside money judgment against her for underlying promissory

note debt owed solely by transferor, though motion was untimely; judgment against transferee


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was a result of judicial error, in that she could not be responsible for the underlying debt, and it

would be inequitable to force her to pay a debt for which she was not liable . Connecticut

Sav. Bank v. Obenauf (2000)758 A.2d

SIXTH POINT, COURT HAS JUST CAUSE TOOPEN DEFALT JUDGMENT

This section governing opening of default judgments is remedial, but it is intended to confine

opening to meritorious cases. (Eastern Elevator Co., Inc. v. Scalzi (1984) 474 A.2d 456, 193

Conn. 128. Judgment => 145(2)

Procedure for opening a default judgment is contained exclusively in G.S. 52-212 and

Practice Book 377, which provides that a default may be set aside, where reasonable cause

exists, upon written motion of any party within four months of default judgment. (Town of

Brookfield v. Boulder SpringWater Co. (1985) 493 A.2d 862, 196 Conn. 355).

SEVENTH POINT PLAINTIFF FAILS TO COMPLYWITH STATORY STANDARD

Failure to comply with statutory requirements deprives court of jurisdiction to hear summary

process action. (City of Bridgeport v. Barbour-Daniel Electronics, Inc. (1988)548 A.2d 744, 16

Conn.App. 574, certification denied 552 A.2d 432, 209 Conn. 826).

Failure to comply with statutory standard in summary process action deprives court of juris-

diction to hear action. (WindsorProperties, Inc. v. Great Atlantic and Pac. Tea Co., Inc. (1979)

408 A.2d 936, 35 Conn.Supp. 297).

As a condition precedent to a summary process action, proper notice to quit is a jurisdictional

necessity. (Federal Home Loan Mortg. Corp. v. Van Sickle (1999)726 A.2d 600, 52 Conn.App.

37).

WHERFORE, defendant prays for the final judgment on default to be vacated.


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The manner in which discretion is exercised by trial court in granting or denying motion to open judgment will not be

disturbed so long as the court could reasonably conclude as it did. In re TravisR. (2004)838 A.2d1000, 80 Conn. App.

777, certification denied 845A.2d 409,268

Generally speaking, an order to open a judgment is not immediately appealable, but there is an

exception to the rule where an appeal challenges the authority of the court to open or to set aside

the judgment. (Rosado v. Bridgeport Roman Catholic Diocesan Corp. (2003) 825 A.2d 153, 77

Conn.App. 690, certification granted 832 A.2d 71, 266 Conn. 906, certification granted 832 A.2d

72, 266 Conn. 907).

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