U.S. Bank Trust, N.A. v. O'Brien

************************************************
The “officially released” date that appears near the
beginning of an opinion is the date the opinion will be
published in the Connecticut Law Journal or the date it
is released as a slip opinion. The operative date for the
beginning of all time periods for the filing of postopin-
ion motions and petitions for certification is the “offi-
cially released” date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Law Journal and subsequently in the Connecticut
Reports or Connecticut Appellate Reports. In the event
of discrepancies between the advance release version of
an opinion and the version appearing in the Connecti-
cut Law Journal and subsequently in the Connecticut
Reports or Connecticut Appellate Reports, the latest
version is to be considered authoritative.
The syllabus and procedural history accompanying
an opinion that appear in the Connecticut Law Jour-
nal 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.
************************************************
Page 0 CONNECTICUT LAW JOURNAL 0, 0

2 ,0 0 Conn. App. 1
U.S. Bank Trust, N.A. v. O’Brien

U.S. BANK TRUST, N.A., TRUSTEE v.
MARK E. O’BRIEN ET AL.
(AC 47391)
Moll, Westbrook and Prescott, Js.

Syllabus

The defendant property owner appealed from the trial court’s judgment
granting the plaintiff’s application for execution of ejectment after the court
had previously rendered a judgment of strict foreclosure on certain real
property. The defendant claimed, inter alia, that the court erroneously
ordered the execution of ejectment because title had not yet vested in the
plaintiff. Held:

The trial court erroneously granted the plaintiff’s application for execution
of ejectment, as, although the court had previously issued an order granting
the plaintiff’s motion to terminate a then existing appellate stay, the court
did not clearly indicate an intent to prospectively terminate future automatic
appellate stays and, therefore, an automatic appellate stay pursuant to the
rule of practice (§ 61-11) was in effect following the defendant’s filing of
his previous appeal, the law days had passed without legal effect, and
absolute title to the property had not yet vested in the plaintiff at the time
the court ordered the execution of ejectment.

Argued February 14—officially released April 1, 2025

Procedural History

Action to foreclose a mortgage on certain real prop-
erty, and for other relief, brought to the Superior Court
in the judicial district of Litchfield, where the defendant
Kathleen M. O’Brien et al. were defaulted for failure to
appear; thereafter, the matter was tried to the court,
Hon. John W. Pickard, judge trial referee; judgment of
strict foreclosure; subsequently, the court, Lynch, J.,
granted the plaintiff’s motion to substitute U.S. Bank,
National Association, as Legal Title Trustee for Truman
2016 SC6 Title Trust as party plaintiff; thereafter, the
named defendant appealed to this court, Keller, Bright
and Bishop, Js., which affirmed the judgment of the trial
court; subsequently, the court, Roraback, J., granted the
substitute plaintiff’s motion for execution of ejectment,
0, 0 CONNECTICUT LAW JOURNAL Page 1

0 Conn. App. 1 ,0 3
U.S. Bank Trust, N.A. v. O’Brien

from which the named defendant appealed to this court.
Reversed; judgment directed; further proceedings.
Mark E. O’Brien, self-represented, the appellant (defen-
dant).
Jeffrey M. Knickerbocker, for the appellee (substitute
plaintiff).
Opinion

WESTBROOK, J. In this mortgage foreclosure action,
the defendant Mark E. O’Brien1 appeals from the judg-
ment of the trial court ordering an execution of
ejectment with regard to the foreclosed property.2 The
court concluded that the execution of ejectment could
issue because all law days had passed during the pen-
dency of the defendant’s prior appeal in this matter and
no appellate stay was in effect at that time due to a
prior trial court order that purportedly had prospec-
tively terminated any existing and future automatic
appellate stays in this matter. Therefore, the court deter-
mined that title to the foreclosed property and the right
of possession had vested in the substitute plaintiff, U.S.
Bank, National Association, as Legal Title Trustee for
Truman 2016 SC6 Title Trust.3 The defendant claims
1
The complaint named as additional defendants Kathleen M. O’Brien,
Thomas J. O’Brien, and the State of Connecticut, Department of Revenue
Services. These additional defendants did not appear before the trial court
or participate in the present appeal. Accordingly, all references to the defen-
dant are to Mark E. O’Brien only.
2
An appeal ordinarily will not lie from an execution of ejectment once a
possessory right to property has been conclusively established, whether
through summary process eviction or by way of foreclosure, because such
an execution merely effectuates a final judgment of possession. In the pres-
ent case, however, the execution of ejectment was ordered by a court in
the context of proceedings in which the issue of whether title had passed
by operation of law remained a contested issue. Given that unique procedural
posture, this appeal is properly before us. See Cathedral Green, Inc. v.
Hughes, 174 Conn. App. 608, 610 n.2, 166 A.3d 873 (2017).
3
The original plaintiff, U.S. Bank Trust, N.A., as Trustee for LSF9 Master
Participation Trust, assigned the subject mortgage to the substitute plaintiff
in October, 2021, and the court granted a motion to substitute the substitute
plaintiff as the party plaintiff on February 23, 2022.
Page 2 CONNECTICUT LAW JOURNAL 0, 0

4 ,0 0 Conn. App. 1
U.S. Bank Trust, N.A. v. O’Brien

that the court misconstrued the prior trial court’s order
terminating the appellate stay; an appellate stay was in
effect when the latest law days passed; and, accord-
ingly, title never vested in the substitute plaintiff, and
the execution of ejectment was premature and violated
his right to due process. For the reasons that follow,
we agree with the defendant, reverse the judgment of
the court, and remand the case with direction to vacate
the execution of ejectment and to set new law days.4
The record reveals the following relevant facts and
procedural history. The original plaintiff, U.S. Bank
Trust, N.A., as Trustee for LSF9 Master Participation
Trust, commenced the present action in October, 2016,
to foreclose a mortgage on real property in Winsted
that the defendant and other heirs had inherited follow-
ing the death of Caroline S. O’Brien, who executed the
mortgage at issue. The defendant filed an appearance
as a self-represented party and an answer and a counter-
claim. In December, 2017, the court, Hon. John W. Pick-
ard, judge trial referee, granted the original plaintiff’s
motion for summary judgment as to the counterclaim.
Thereafter, on May 20, 2019, following a trial on the
foreclosure complaint, the court rendered a judgment
of strict foreclosure. The defendant appealed from the
judgment of strict foreclosure, and, on March 10, 2020,
this court issued a memorandum decision affirming the
judgment and remanding the case for the purpose of
setting new law days, which had passed during the
pendency of the appeal. See U.S. Bank Trust, N.A. v.
O’Brien, 196 Conn. App. 903, 225 A.3d 1250, cert. denied,
335 Conn. 922, 233 A.3d 1090 (2020), cert. denied,
U.S. , 141 S. Ct. 1514, 209 L. Ed. 2d 253 (2021).
4
Because we reverse the judgment of the court on this basis, we decline
to address the defendant’s additional claims that, even if there were an
order prospectively terminating all existing and future appellate stays, the
court lacked the authority to issue such an order and the order was improper
because it was not issued by the judge who initially tried this matter.
0, 0 CONNECTICUT LAW JOURNAL Page 3

0 Conn. App. 1 ,0 5
U.S. Bank Trust, N.A. v. O’Brien

As previously noted, in February, 2022, the court
granted the original plaintiff’s motion to substitute party
plaintiff. See footnote 3 of this opinion. The substitute
plaintiff then moved for an order modifying the judg-
ment of foreclosure and resetting the law days, which
the court, J. Moore, J., granted on April 25, 2022. The
court set the law days to commence on June 6, 2022.
On May 6, 2022, the defendant filed a motion asking
the court to open the judgment of foreclosure, dismiss
the complaint, and extend the law days (motion to
open). According to the defendant, both the original
and substitute plaintiffs lacked standing to prosecute
the foreclosure action, and the mortgage servicers
improperly had interfered with the defendant’s efforts
to modify the mortgage. The substitute plaintiff filed a
memorandum in opposition to the motion to open. The
court denied the motion to open on June 6, 2022, but
stated in its order that it was extending the law days
to June 27, 2022, ‘‘to provide the [defendant] with the
twenty day appellate period . . . .’’
The defendant timely filed his second appeal in this
matter on June 22, 2022, challenging the denial of his
motion to open. That appeal gave rise to an automatic
stay that prevented the June 27, 2022 law days from
passing.
On June 27, 2022, the substitute plaintiff timely filed
a motion to dismiss the second appeal as frivolous. The
substitute plaintiff also filed a motion asking the trial
court to terminate the existing appellate stay and ‘‘any
future automatic stays on appeal.’’ The defendant filed
a memorandum in opposition to the motion to termi-
nate stay.
On August 1, 2022, following a remote hearing, the
court issued an order generically stating that the substi-
tute plaintiff’s motion to terminate stay was granted
‘‘for the reasons set forth on the record’’ and that the
Page 4 CONNECTICUT LAW JOURNAL 0, 0

6 ,0 0 Conn. App. 1
U.S. Bank Trust, N.A. v. O’Brien

signed transcript of its decision shall constitute the
court’s memorandum of decision on the motion. The
transcript reflects that the court did not clearly indicate
during the hearing whether it intended to grant the
motion only with respect to the then existing appellate
stay or also as to any future appeals, stating in relevant
part: ‘‘So, in balancing the equities, the court reaches
the conclusion that [the] due administration [of] justice
does require the court to grant the motion to terminate
the appellate stay in this case.’’ (Emphasis added.) Nei-
ther party asked the court for clarification of its August
1, 2022 order granting the motion to terminate stay or
filed a motion for review of that order with this court.
See Practice Book §§ 61-14 and 66-6. On September 7,
2022, this court granted the substitute plaintiff’s motion
and dismissed the defendant’s second appeal as frivo-
lous.5
Following our dismissal of the second appeal, the
substitute plaintiff filed a motion asking the trial court
to again reset the law days and to award additional
attorney’s fees. The trial court, Roraback, J., granted
that motion on March 20, 2023, ordering law days to
commence on May 1, 2023.
On March 23, 2023, the defendant filed his third
appeal in this matter. The substitute plaintiff once again
filed a motion to dismiss the appeal, and this court
granted the motion and dismissed the appeal as frivo-
lous by order dated April 26, 2023. The defendant filed
a petition for certification to appeal with our Supreme
Court, which denied certification on September 26,
2023.
The defendant did file a motion asking this court to ‘‘issue a stay of
5

proceedings in the Superior Court until this appeal has been weighed on
the merits.’’ That motion did not address the appropriateness of a prospective
termination of the appellate stay in future appeals, presumably because the
defendant did not construe the court’s order as encompassing future appeals.
At the time this court dismissed the second appeal as frivolous, it ordered
no action necessary on the defendant’s motion for a stay.
0, 0 CONNECTICUT LAW JOURNAL Page 5

0 Conn. App. 1 ,0 7
U.S. Bank Trust, N.A. v. O’Brien

On December 26, 2023, the substitute plaintiff filed
a motion once again asking the trial court to set new law
days. Two days later, however, the substitute plaintiff
withdrew that motion, and, on January 3, 2024, it filed
an application for an execution of ejectment regarding
the subject property.6 The defendant filed a memoran-
dum in opposition to the proposed execution of
ejectment, arguing that the law days that had been set
to commence on May 1, 2023, were stayed by the filing
of his third appeal and, as a result, passed without legal
effect. Consequently, the defendant argued, title to the
subject property could not have vested in the substitute
plaintiff. On February 8, 2024, the substitute plaintiff
filed a memorandum in support of the proposed execu-
tion of ejectment, arguing that the trial court, on August
1, 2022, previously had granted the substitute plaintiff’s
motion for a prospective termination of any future
appellate stays. Also on February 8, 2024, the defendant
filed a motion to open and vacate the foreclosure judg-
ment.
Judge Roraback conducted a hearing concerning the
proposed execution of ejectment on February 9, 2024.
After hearing argument from the parties, the court con-
cluded that title to the property had vested in the substi-
tute plaintiff and that the execution of ejectment should
issue. On February 14, 2024, the court issued orders
denying the defendant’s motion to open and vacate
the foreclosure judgment and granting the proposed
execution of ejectment, stating: ‘‘The court orders that
the ejectment be stayed until May 1, 2024. No further
extensions of the execution of ejectment shall be
granted absent extraordinary and unforeseeable cir-
cumstances.’’ This appeal followed.7
6
The application listed November 6, 2023, as the ‘‘[d]ate titled was trans-
ferred.’’
7
The substitute plaintiff timely moved to dismiss the present appeal as
frivolous. It argued that the trial court carried out a ministerial act by issuing
an execution of ejectment. The defendant objected to the motion to dismiss,
arguing that there is a good faith dispute as to whether title to the property
Page 6 CONNECTICUT LAW JOURNAL 0, 0

8 ,0 0 Conn. App. 1
U.S. Bank Trust, N.A. v. O’Brien

The defendant claims on appeal that the trial court
misconstrued the August 1, 2022 order granting the
substitute plaintiff’s motion to terminate the appellate
stay ‘‘in this case’’ as having terminated prospectively
all future appellate stays in this matter. Thus, according
to the defendant, and contrary to the conclusion of the
court, an appellate stay was in full force and effect
when the most recent law days in this matter passed,
and, accordingly, title never vested in the substitute
plaintiff. We agree with the defendant and, therefore,
also agree that the court improperly determined that
the execution of ejectment could issue.
We begin by setting forth governing principles of
law and our standard of review. ‘‘In Connecticut, the
passage of the law days in an action for strict foreclo-
sure extinguishes a mortgagor’s equitable right of
redemption and vests absolute title in the encum-
brancer.’’ U.S. Bank National Assn. v. Rothermel, 339
Conn. 366, 375, 260 A.3d 1187 (2021). Provided that an
automatic appellate stay of execution is in effect; see
Practice Book § 61-11; ‘‘[l]aw days are ineffective while
the appeal period is pending. To conclude otherwise
would be tantamount to depriving a party of judicial
review and, therefore, of due process of law.’’ Continen-
tal Capital Corp. v. Lazarte, 57 Conn. App. 271, 273–74,
749 A.2d 646 (2000). A trial court’s determination of
whether an appellate stay was in effect raises a question
of law over which we exercise plenary review. See
Quicken Loans, Inc. v. Rodriguez, 227 Conn. App. 806,
817, 324 A.3d 167 (2024), cert. denied, 351 Conn. 905,
330 A.3d 133 (2025).
Moreover, to the extent that our review also requires
us to construe the meaning of a prior judgment or order
vested in the substitute plaintiff. This court denied the motion to dismiss
and further ordered sua sponte that the trial court’s February 14, 2024 orders
were automatically stayed pursuant to Practice Book § 61-11 (a).
0, 0 CONNECTICUT LAW JOURNAL Page 7

0 Conn. App. 1 ,0 9
U.S. Bank Trust, N.A. v. O’Brien

of the court, this also presents an issue over which our
review is plenary. See Cunningham v. Cunningham,
204 Conn. App. 366, 373, 254 A.3d 330 (2021). ‘‘As a
general rule, judgments are to be construed in the same
fashion as other written instruments. . . . The deter-
minative factor is the intention of the court as gathered
from all parts of the judgment. . . . The interpretation
of a judgment may involve the circumstances sur-
rounding the making of the judgment. . . . Effect must
be given to that which is clearly implied as well as to that
which is expressed. . . . The judgment should admit
of a consistent construction as a whole.’’ (Internal quo-
tation marks omitted.) Id.
Having carefully reviewed the transcript of the
August 1, 2022 hearing, which the trial court indicated
in its order granting the substitute plaintiff’s motion to
terminate the appellate stay contained the reasoning
for that ruling, we conclude that the court’s statements
during the hearing do not clearly convey whether the
court intended to terminate only the appellate stay then
in effect or to terminate any and all appellate stays,
including those that might arise in the future. At the
hearing, the trial court stated only that it had balanced
the equities involved and determined that the due
administration of justice required it ‘‘to grant the motion
to terminate the appellate stay in this case.’’ (Emphasis
added.) The trial court’s language, particularly its use
of the phrase ‘‘in this case,’’ is, at best, ambiguous as
to whether the court meant to eliminate only the
existing stay or the possibility of a stay in the event of
a future appeal. Nothing in the court’s discussion during
the hearing indicates that it even contemplated whether
granting prospective relief from a future stay was neces-
sary or justified under the circumstances.
The termination of any appellate stay can have signifi-
cant consequences for litigants, but this is particularly
true in foreclosure matters in which the effect of lifting
Page 8 CONNECTICUT LAW JOURNAL 0, 0

10 ,0 0 Conn. App. 1
U.S. Bank Trust, N.A. v. O’Brien

a stay can result in an effectively irreversible divestiture
of title to real property. See, e.g., General Statutes § 49-
15 (generally limiting court’s authority to alter judgment
of strict foreclosure after title has become absolute in
any encumbrancer). If the law days pass before appel-
late review of the defendant’s claims can occur, the
appeal will likely become moot because title has passed
irrevocably and an appeals court may not grant the
defendant any further relief except in rare circum-
stances. See U.S. Bank National Assn. v. Rothermel,
supra, 339 Conn. 375. Indeed, the prospective termina-
tion of the appellate stay arising in all future appeals
is an extraordinary remedy because it necessarily pre-
sumes that any challenge to future orders of the court
would be meritless despite the lack of present knowl-
edge regarding whether the orders might have any basis
in law or fact.
In light of these concerns, if a court concludes that
the due administration of justice warrants prospectively
terminating any and all future stays, it must do so
expressly and with unequivocal language. This require-
ment will ensure that a defendant is on notice that he
must seek further relief from this court to avoid the
running of the law days before his appellate claims can
be adjudicated. Moreover, it will facilitate our review,
if requested, of the court’s decision to provide a plaintiff
with relief from an appellate stay. See Practice Book
§ 61-14. Given the equitable nature of foreclosure pro-
ceedings, any ambiguity in the court’s decision to termi-
nate prospectively appellate stays in future appeals
should be resolved in favor of the default rule that an
automatic stay of execution arises from the filing of a
timely appeal. Because the court did not clearly indicate
an intent to grant fully the relief sought by the substitute
plaintiff in its motion, we are compelled to conclude
that the court’s order did not prospectively terminate
future automatic appellate stays.
0, 0 CONNECTICUT LAW JOURNAL Page 9

0 Conn. App. 1 ,0 11
U.S. Bank Trust, N.A. v. O’Brien

Given that conclusion, it follows that an automatic
appellate stay was in effect following the court’s March
20, 2023 decision modifying the judgment of strict fore-
closure and setting law days to commence on May 1,
2023. See Practice Book § 61-11 (a). The appellate stay
continued in effect following the defendant’s filing of
his third appeal on March 24, 2023; see Practice Book
§ 61-11 (a); through this court’s dismissal of the third
appeal as frivolous on April 26, 2023; see Practice Book
§ 61-11 (a); and until our Supreme Court’s September
26, 2023 denial of the defendant’s petition for certifica-
tion to appeal. At that point, the May 1, 2023 law days
had passed without legal effect, necessitating the need
for the setting of new law days before title to the prop-
erty could pass to the substitute plaintiff. Because abso-
lute title to the property has not yet vested in the substi-
tute plaintiff, an execution of ejectment was premature,
and the court’s ruling to the contrary cannot stand.
The judgment is reversed and the case is remanded
with direction to vacate the execution of ejectment and
to set new law days.
In this opinion the other judges concurred.