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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 property 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 judgment 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 proceeding; 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 property 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 rendered 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 reenter 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 foreclosure 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 America, 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 violated 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 mediation, 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 performance 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 obligations,” 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 plaintiff’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, rescheduling 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 provided 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 permitted 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 certification.
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 February 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 automatic 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 plaintiff 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 certification 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 & Mechanics 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 omitted.) 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 dismissal did not terminate the automatic appellate stay
because the defendant timely filed a petition for certification 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 proceedings 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 unavailing. 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 Practice 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 determination 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 modification 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 without 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 discretion 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).