author: BEACH, J.

text:
    JEFFREY NAIER ET AL. v. ROZ-LYNN BECKENSTEIN ET AL.
    (AC 30148)
    Lavine, Beach and Pellegrino, Js.

      Argued February 10
    officially released September 27, 2011

      David A. Lavenburg, for the appellants (plaintiffs).

      Michael P. Berman, with whom was Suzanne LaPlante, for the appellee (named defendant).

      Jeffrey J. Mirman, for the appellee (defendant Arthur Beckenstein).
   Opinion

BEACH, J.

The principal proposition presented in this appeal is whether a beneficiary of a trust has standing to maintain an action claiming impropriety on the part of a third party who settled a prior case with the trustee. On the facts presented in this matter, we hold that the beneficiary does not have such standing.

The plaintiffs, Jeffrey Naier and Andrea Naier, both individually and in their capacities as co-trustees of the Eleanor Naier revocable trust, appeal from the judgment of the trial court dismissing their complaint against the defendants, Roz-Lynn Beckenstein, individually and in her capacity as executrix of the estate of Robert Beckenstein and co-trustee of the Robert Beckenstein amended and restarted trust; Seymour Flaster, trustee; and Arthur Beckenstein, individually and in his capacity as trustee of the Henry Beckenstein trust. The plaintiffs claim that the court erred in dismissing their complaint for lack of standing. We affirm the judgment of the trial court.

The record reveals the following relevant factual allegations and procedural history. Henry Beckenstein and his brother, Louis Beckenstein, were equal partners in certain real estate projects, including Tolland Enterprises and Wintonbury Associates (partnerships). Upon the death of Louis Beckenstein, his interest in the partnerships devolved to a trust. His wife, Rose Beckenstein, held a power of appointment giving her discretion to direct assets, and the Hartford National Bank & Trust Company was trustee.

In October, 1983, Rose Beckenstein created a trust agreement (Rose trust). The Rose trust stated that after the death of Rose Beckenstein, Rose Beckenstein’s and Louis Beckenstein’s daughter, Eleanor (Beckenstein) Naier, would have the power to appoint or to distribute for the benefit of Eleanor Naier’s children any part of the principal of the trust estate “except closely held business interests . . . .” The Rose trust further provided that the trustee was authorized to retain any business interest in the trust estate. Following the death of Rose Beckenstein in January, 1985, the Rose trust became irrevocable, and Henry Beckenstein and the Rose trust each held a 50 percent interest in the partnerships.

In 1996, following the death of Henry Beckenstein and his wife, their two sons, Robert Beckenstein and Arthur Beckenstein, became co-executors of Henry Beckenstein’s estate. At this time, then, the Rose trust and the estate of Henry Beckenstein each held a 50 percent interest in the partnerships.

In 1997, Eleanor Naier and her two children, Jeffrey Naier and Andrea Naier, commenced an action alleging a breach of fiduciary duty and violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., against Fleet Bank, the trustee of the Rose trust, and Robert Beckenstein and Arthur Beckenstein, individually and as co-executors of the estate of Henry Beckenstein. The Naiers claimed generally that the Beckensteins, with the acquiescence of Fleet Bank, improperly failed to render a fair share of partnership profit to the Rose trust. In June, 2000, Robert Beckenstein died and his wife, Roz-Lynn Beckenstein, was appointed executrix of his estate and was named as a defendant in the 1997 action. In settlement of the 1997 action, Eleanor Naier, Jeffrey Naier and Andrea Naier, in August, 2000, entered into a settlement and release agreement with Fleet Bank, Roz-Lynn Beckenstein, the executrix of the estate of Robert Beckenstein, and Arthur Beckenstein individually and as executor of the estate of Henry Beckenstein. Pursuant to the “global” settlement agreement, Roz-Lynn Beckenstein and Arthur Beckenstein made a payment of more than $6 million to the Rose trust as consideration for the transfer of the Rose trust’s interest in the partnerships to Roz-Lynn Beckenstein in her capacity as executrix of the estate of Robert Beckenstein and to Arthur Beckenstein individually. Roz-Lynn Beckenstein and Arthur Beckenstein thereafter sold the partnership’s properties. Upon Robert Beckenstein’s death, Arthur Beckenstein had become the sole executor of Henry Beckenstein’s estate.

In 2007, the plaintiffs initiated the present action against the defendants, notwithstanding the 2000 settlement agreement, regarding their conduct in the prior litigation. The plaintiffs alleged fraudulent misrepresentation, breach of the covenant of good faith and fair dealing, breach of fiduciary duties, aiding and abetting, a CUTPA violation, unjust enrichment, constructive trust and a claim under General Statutes § 45a-368.

The defendants filed a motion to dismiss for lack of standing. The court determined that as beneficiaries, as opposed to trustees, of the Rose trust, the plaintiffs lacked standing to assert the claims set forth in their complaint. The court granted the defendants’ motion and dismissed the plaintiffs’ complaint. This appeal followed.

The standard of review applicable to a motion to dismiss is well established. “A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court. . . . [0]ur review of the trial court’s ultimate legal conclusion and resulting [denial] of the motion to dismiss will be de novo. ... A motion to dismiss tests . . . whether . . . the court is without jurisdiction. . . . When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light .... In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader. . . . The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone.” (Citation omitted; internal quotation marks omitted.) Keller v. Beekenstein, 122 Conn. App. 438, 442-43, 998 A. 2d 838, cert. granted on other grounds, 298 Conn. 921, 5 A.3d 486 (2010).

“It is well established that [a] party must have standing to assert a claim in order for the court to have subject matter jurisdiction over the claim. . . . Standing is the legal right to set judicial machinery in motion. . . . [T]he court has a duty to dismiss, even on its own initiative, any appeal that it lacks jurisdiction to hear. . . . Where a party is found to lack standing, the court is consequently without subject matter jurisdiction to determine the cause. . . . Our review of the question of [a] plaintiffs standing is plenary.” (Citations omitted; internal quotation marks omitted.) Megin v. New Milford, 125 Conn. App. 35, 37, 6 A.3d 1176 (2010).

“Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless [one] has, in an individual or representative capacity, some real interest in the cause of action .... Standing is established by showing that the party claiming it is authorized by statute to bring suit or is classically aggrieved. . . . The fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination: first, the party claiming aggrievement must successfully demonstrate a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all the members of the community as a whole. Second, the party claiming aggrievement must successfully establish that the specific personal and legal interest has been specially and injuriously affected by the decision. . . . Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected.” (Internal quotation marks omitted.) Gold v. Rowland, 296 Conn. 186, 207, 994 A.2d 106 (2010).

“Standing is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented. . . . These two objectives are ordinarily held to have been met when a complainant makes a colorable claim of direct injury he has suffered or is likely to suffer, in an individual or representative capacity. Such a personal stake in the outcome of the controversy . . . provides the requisite assurance of concrete adverseness and diligent advocacy. . . . The requirement of directness between the injuries claimed by the plaintiff and the conduct of the defendant also is expressed, in our standing jurisprudence, by the focus on whether the plaintiff is the proper party to assert the claim at issue.” (Internal quotation marks omitted.) PNC Bank, N.A. v. Kelepecz, 289 Conn. 692, 705, 960 A.2d 563 (2008).

The gravamen of the plaintiffs’ claims in the present action is that the defendants, during the coruse of the 1997 action, provided the plaintiffs with incorrect and misleading information about the partnerships and the defendants’ intentions regarding the partnerships, in which, at that time, the Rose trust and the estate of Henry Beckenstein were equal partners. Under the Rose trust, Eleanor Naier had the power to appoint or to distribute for the benefit of the plaintiffs or either one of them, the trust property, other than closely held business interests. The plaintiffs were, at most, beneficiaries.

I

PLAINTIFFS’ STANDING AS BENEFICIARIES

The trustee is the proper party to bring an action against anyone who wrongfully interferes with the interests of the trust. See Treat v. Stanton, 14 Conn. 445, 454-55 (1841) (legal responsibility to bring action exclusive to trustee and must be enforced by trustee). “The trustee’s standing to sue arises out of its legal title to the res. See Palmer v. Hartford National Bank & Trust Co., 160 Conn. 415, 425, 279 A.2d 726 (1971). ‘The trustee has a title (generally legal title) to the trust property, usually has its possession and a right to continue in possession, and almost always has all the powers of management and control which are necessary to make the trust property productive and safe. Any wrongful interference with these interests of the normal trustee is therefore a wrong to the trustee and gives him a cause of action for redress or to prevent a continuance of the improper conduct. Although the beneficiary is adversely affected by such acts of a third person, no cause of action inures to him on that account.’ Bogert, Trusts and Trustees (2d Ed. Rev.) § 869, p. 87.” Second Exeter Corp. v. Epstein, 5 Conn. App. 427, 429-30, 499 A.2d 429 (1985), cert. denied, 198 Conn. 802, 502 A.2d 932 (1986). The Restatement (Second) of Trusts, § 281, states: “(1) Where the trustee could maintain an action at law or suit in equity or other proceeding against a third person if the trustee held the trust property free of the trust, the beneficiary cannot maintain an action at law against the third person, except as stated in Subsection (2). (2) If the beneficiary is in possession of the subject matter of the trust, he can maintain such actions against the third person as a person in possession is entitled to maintain.” 2 Restatement (Second), Trusts § 281 (1959). The comment to subsection (1) states: “(a) The interest of the beneficiary of a trust is an equitable interest, and ordinarily is protected by suits in equity rather than by actions at law. . . . (b) . . . If a third person commits a tort with respect to the trust property, the beneficiary, if he is not in possession, cannot maintain an action at law against him. . . . (c) ... If a contract right is held in trust, the beneficiary cannot maintain an action at law against the promisor. ... (d) .... If a right other than for tort or in contract arises against a third person from the holding of title to the trust property, the beneficiary cannot maintain an action at law to enforce it.” (Citations omitted.) Id., § 281, comment on subsection (1).

Accordingly, at the time of the 1997 action, any interest of the Rose trust vis-a-vis the Beckenstein interests had to have been asserted by the trustee, if anyone. If the trustee violated its fiduciary duty, the beneficiaries had standing to bring an action against it.

II

PLAINTIFFS’ STANDING AS INDIVIDUALS

Recognizing the general principle that only a trustee has standing to maintain an action asserting the trust’s interests, the plaintiffs nonetheless argue that they have standing in this action because they in fact were parties to the 1997 action and claim to have been defrauded themselves. Several considerations inform our resolution of this claim. First, in their capacity as beneficiaries of the Rose trust, the plaintiffs lack standing to assert their claims. If any entity was defrauded, it was the trust itself. The plaintiffs do not fall under any exception noted in the Restatement; their complaint contains no allegation that they were in possession of the trust property, nor is such an exception claimed.

Additionally, the language of the Rose trust did not allow the plaintiffs individually to succeed to the partnership property interests. The Rose trust expressly stated in paragraph 3 (c) that “after the death of the Donor [Rose Beckenstein], the Donor’s said daughter [Eleanor Naier] shall have the power, exercisable by Will, to appoint all or any part of the principal of the Trust Estate, except closely held business interests, in the trust or otherwise, to or for the benefit of her issue . . . .” (Emphasis added.)

The plaintiffs, however, also claim that their standing, as individuals, to bring their present complaint is derived from the settlement of the 1997 action. They argue that they had standing to bring the 1997 action as beneficiaries of the Rose trust because in that action they alleged, inter alia, that the defendant Fleet Bank, the trustee of the Rose trust, breached its fiduciary duty to the beneficiaries of the trust by failing to act in various ways. They contend that the allegations in their present complaint concern the actions of the defendants in misrepresenting partnership information and intentions during the settlement of the 1997 action and, because the plaintiffs were parties to the 1997 action and signed the settlement agreement, they have standing in the present case to raise claims arising from the settlement agreement to the 1997 action.

We assume for the purpose of this opinion that the plaintiffs had standing to bring the 1997 action. Standing in one action, however, does not necessarily confer standing in another. The present complaint contains allegations that certain actions and representations of the defendants with respect to the partnerships induced the plaintiffs to settle the 1997 action for less money than their interests were worth. The plaintiffs were at most beneficiaries of a trust that was an owner of the partnerships. As discussed previously, the portion of the settlement currently in issue directly concerned the Rose trust, not the plaintiffs; the plaintiffs are not proper parties in the present action. Even if misleading statements had been made to the plaintiffs any injury was to the trust, and the settlement proceeds were transferred to the trust, not to the plaintiffs. See, e.g., Ganim v. Smith & Wesson Corp., 258 Conn. 313, 349, 780 A.2d 98 (2001) (“The question of whether a set of harms suffered by the plaintiff is the direct, or the indirect, remote or derivative, consequence of the defendant’s conduct, is not determined, however, simply by the court applying one set of labels or the other to the facts of the case. It is, instead, part of the judicial task, based on policy considerations, of setting some reasonable limits on the legal consequences of wrongful conduct.”).

With those considerations in mind, we examine the plaintiffs’ claim that the actions by the defendants caused the cash payment for the partnership interest to be less than it should have been. As a result of the global settlement agreement, inter aha, a total payment of $6.8 million was made to the Rose trust in consideration of the transfer of the Rose trust’s interest in the partnerships to Roz-Lynn Beckenstein and Arthur Beckenstein. Although the settlement was “global,” and apparently encompassed assets in addition to the partnerships, the part of the settlement agreement that allegedly was fraudulent directly involved only Fleet Bank, which transferred the partnership interests, and the Rose trust, which was paid cash consideration. Any injury was sustained by the trust, not the plaintiffs directly. The Rose trust conferred to Eleanor Naier the power of appointment, exercisable in her will, “to appoint all or any part of the principal of the trust estate, except closely held business interests ... to or for the benefit of her issue, or any of them, in such proportions and amounts as she shall, in her sole judgment, determine.” At the time of the settlement agreement in 2000, Eleanor Naier was alive and no appointment power had been exercised. In her will, Eleanor Naier, who at the time this action was brought was deceased, appointed all of the assets of the Rose trust to the Eleanor Naier revocable trust, of which the plaintiffs are co-trustees. Even if the plaintiffs could surmount the obstacle that, in general, it is the trustee, not the beneficiary, who has standing to bring suit; their relation to the cash settlement is too remote to confer standing in the present action and ultimately is subject to the same considerations barring standing to beneficiaries.

The plaintiffs further argue that it is undisputed that the Rose trust was terminated and no longer exists, and as a result of this termination, they have standing as beneficiaries to bring the present action. They contend, citing A. Scott, W. FYatcher & M. Ascher, Trusts (5th Ed. 2008) § 36.2, that, following the termination date of a trust, if the trustee fails to convey or distribute the trust property and enough time has elapsed for the trustee to wind up the trust, then it is permissible to presume such a conveyance by the trustee. They further contend that to the extent that some or all of the claims asserted in the present action otherwise would have belonged to the trustee of the Rose trust, the plaintiffs, as beneficiaries of the Rose trust, are now the owners of those causes of action because ownership of the claims vested in them immediately when the Rose trust was terminated. The plaintiffs appear to suggest that if the trustee owned claims regarding the settlement, but failed expressly to convey them prior to termination, then the beneficiaries now own the claims.

The argument is somewhat ingenious, but ultimately lacks substance. The choate trust property, of course, has been conveyed. “Ownership” of any causes of action related to the partnerships’ assets have not vested in the plaintiffs. The Rose trust explicitly stated that the closely held business interests, i.e., the partnerships, could not be appointed to the plaintiffs. Again, for reasons stated previously, any potential interest is too remote to create standing.

Ill

PLAINTIFFS’ STANDING AS TRUSTEES OF THE ELEANOR NAIER TRUST

The plaintiffs argue, alternatively, that they have standing as co-trustees of the Eleanor Naier revocable trust. They contend that the Eleanor Naier revocable trust is the “successor in interest” to the Rose trust’s interests in the partnerships and, as such, holds the proceeds of the settlement agreement. They state that they are the successors in interest to the partnerships despite the language of the Rose trust which provides that Eleanor Naier’s powers of appointment did not include “closely held business interests.” They argue that at the time of Eleanor Naier’s death, the Rose trust did not have an interest in the partnerships because the interests had been transferred to Roz-Lynn Beckenstein and Arthur Beckenstein as a result of the settlement agreement. All that remained in the Rose trust, according to the plaintiffs, were assets other than the partnerships and claims against the defendants, and Eleanor Naier was not precluded by the language of the Rose trust from appointing the claims arising from the partnership interests by her will to the Eleanor Naier revocable trust.

It is clear from the express language of the Rose trust that Eleanor Naier was precluded from appointing closely held business interests to the plaintiffs. See Hartford National Bank & Trust Co. v. VonZiegesar, 154 Conn. 352, 359, 225 A.2d 811 (1966) (“[t]he cardinal rule of construction of all trusts ... is to find and effectuate the intent of the testator or settlor”). Furthermore, as a result of the settlement agreement, the partnership interests, at least insofar as the Rose trust was concerned, were liquidated. The transfer of the cash or otherwise invested assets to the plaintiffs by Eleanor Naier’s will does not necessarily cause the plaintiffs to become successors in interest to claims that may have arisen as a result of the transfer of the partnership interests to cash. If this were so, a beneficiary of a terminated trust, as opposed to a trustee, would have standing to bring a cause of action against anyone who had had dealings with the trustee.

For the foregoing reasons, the court properly granted the defendants’ motion to dismiss due to lack of standing.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs also claim in their statement of issues that the court erred in denying their motion for reargument. Because the plaintiffs’ brief does not meaningfully analyze this issue, we deem it abandoned. “[I]ssues raised in the defendant’s preliminary statement of issues which were not briefed are considered abandoned.” (Internal quotation marks omitted.) Thomas v. West Haven, 249 Conn. 385, 391 n.ll, 734 A.2d 535 (1999), cert. denied, 528 U.S. 1187, 120 S. Ct. 1239, 146 L. Ed. 2d 99 (2000).

       Paragraph 3 (c) provides: “Anything herein to the contrary notwithstanding, after the death of the Donor [Rose Beckenstein], the Donor’s said daughter [Eleanor Naier] shall have the power, exercisable by Will, to appoint all or any part of the principal of the Trust Estate, except closely held business interests, in trust or otherwise, to or for the benefit of her issue, or any of them, in such proportions and amounts as she shall, in her sole judgment, determine. The Trustee shall pay over and distribute, as soon as practicable, any part so appointed in accordance with the terms of such appointment.”

       The interests of the trust in the partnerships were to be administered solely by the trustee, which specifically was directed to be advised by Henry Beckenstein and specified successors according to paragraph 9 of the Rose trust. The intention of the settlor quite clearly was to exclude the beneficiaries from the business operations.

       Fleet Bank was the successor in interest to Hartford National Bank.

       “It has generally been held that a beneficiary cannot sue the parties at law for any harm done his trust estate without first asking his trustee to bring a proper action and receiving a refusal. The reasons of convenience, in the proper administration of trust estates, which underlie this rule, are apparent. This rule is rather strictly enforced as regards actions at law, but not so rigidly regarded in equitable actions. This is especially true where trustees are implicated in the alleged wrong.” Preston v. Preston, 102 Conn. 96, 123, 128 A. 292 (1925). In this case, there is no indication that the beneficiaries asked the trustee to bring suit, and there is no allegation that the trustee is implicated in the alleged wrong.

       In this vein, we note that the 1997 action brought by the plaintiffs included the trustee as a defendant.

       There is no dispute that the partnerships were “closely held business interests.”

       In the 1997 action, the plaintiffs included Fleet Bank as a defendant. The trustee is not alleged in this action to have engaged in tortious conduct in the settlement of the prior action.

       It should be observed that the plaintiffs' standing in the 1997 action had to have been premised on the inclusion of the trustee as a defendant. There is no similar path to standing in this case.

       Section 36.2 of volume 5 of A. Scott, W. Fratcher & M. Ascher, Trusts (5th Ed. 2008), states: “After the termination date, and once the trustee has had a reasonable opportunity to wind up the trust, the trustee is under a duty to transfer the trust property to those who are beneficially entitled to it. Ordinarily the trustee fulfills this duty by conveying legal title to the appropriate beneficiary. . . . Ordinarily, however, on the termination of a trust, legal title to the trust property does not vest automatically in those entitled to it; instead, legal title remains in the trustee until the trustee conveys or otherwise distributes it . . . [T]he courts have held, however, that if the trustee fails to make such a conveyance, it is permissible, after the expiration of a sufficiently long period of time, to presume that the trustee has done so.”

       It perhaps may be possible, as an exercise of logic, that a claim that was inchoate and unknown at the time of termination could pass to a beneficiary. Such a result, in this case would be contrary to the principles of the law of trusts, as set forth previously, and would ignore the remoteness of the plaintiffs’ status.

       The trustee of the Rose trust, if it currently existed, would presumably have standing, as would a successor trustee of the Rose trust. The Eleanor Naier trust is an entirely separate entity, though it apparently held assets inherited from the Rose trust. Holding derivative assets does not create a direct interest sufficient to establish standing.

       It is of course true that a representative of an estate may pursue a cause of action, within certain limitations, to pursue claims of the deceased. That is not the case here—if the plaintiffs had standing to pursue claims against anyone in the past who may have caused diminution of a trust res, there would be no limit. Standing in the final analysis is a policy determination by the court. See Ganim v. Smith & Wesson Corp., supra, 258 Conn. 313.


source: Caselaw Access Project

author: SCHALLER, J.

license: Public Domain

text:
    CITIBANK, N.A., TRUSTEE (SACO 2007-2) v. DEBRA LINDLAND, EXECUTRIX (ESTATE OF MADLYN LANDIN), ET AL.
    (AC 32723)
    DiPentima, C. J., and Lavine and Schaller, Js.

      Argued May 18
    officially released September 27, 2011

      Peter A. Ventre, for the appellant (plaintiff).

      Barbara M. Schellenberg, with whom were David A. Ball and, on the brief, Philip C. Pires, for the appellee (defendant Robert Olsen et al.).
   Opinion

SCHALLER, J.

This appeal requires us to determine whether the trial court had the authority to open a judgment of foreclosure by sale after title to the real property had been conveyed to the successful bidder, despite irregularities in the process. The plaintiff, Citibank, N.A., as trustee of SACO 2007-2, appeals from the judgment of the trial court granting a motion to open the judgment of foreclosure by sale filed by Robert Olsen, the successful bidder in whom title to the foreclosed property had vested. On appeal, the plaintiff claims that the court improperly (1) opened the judgment of foreclosure because it lacked authority to do so and (2) granted the motions to intervene as party defendants filed by Olsen and 17 Ridge Road, LLC. We reverse the judgment of the trial court.

The court, Holzberg, J., conducted an evidentiary hearing on Olsen’s motion to open over the course of two days and issued a memorandum of decision dated August 5, 2009. The following facts and procedural history are undisputed and are relevant to the issues in the present appeal. On May 1,2008, the plaintiff initiated a foreclosure action against Debra Lindland, executrix of the estate of Madlyn Landin (estate); see footnote 1 of this opinion; alleging that the estate had defaulted on a mortgage loan owed to the plaintiff, which was secured by property located at 17 Ridge Road in Cromwell. Importantly, the foreclosure complaint alleged that there was a mortgage prior in right to the plaintiffs mortgage. On July 10, 2008, in support of its motion for a judgment of strict foreclosure, the plaintiff filed with the court a foreclosure worksheet reflecting the absence of any equity in the property. Specifically, the worksheet disclosed: a fair market value of $305,000; the existence of a first mortgage in the amount of $295,200; and a debt arising out of the plaintiffs second mortgage in the amount of $82,615.46. The first mortgage was held by IndyMac Federal Bank, FSB (Indy-Mac), which had initiated a separate foreclosure action on its priority mortgage.

On August 4, 2008, the plaintiffs motion for judgment of strict foreclosure appeared on the short calendar. Judge Holzberg found incorrectly that there was substantial equity in the property justifying a sale pursuant to General Statutes § 49-24 et seq. rather than strict foreclosure. Specifically, the court, in its foreclosure orders, found an updated debt of $82,615.46 and a fair market value of $305,000, but did not reference Indy-Mac’s priority debt of $295,200. The court appointed a committee for sale, which proceeded with a sale on October 8, 2008. The committee prepared a notice to bidders that set forth the liens that were prior in right to the plaintiffs lien. The notice referred only to certain municipal taxes and did not mention the IndyMac mortgage or that the purchaser would take the property subject to any mortgage. The committee read the notice aloud prior to the commencement of the sale. On the basis of expert testimony presented at the hearing, the court concluded that the cumulative effect of these omissions resulted in a sale that was misleading to potential buyers.

Olsen was the successful bidder at the sale with a high bid of $216,000. Following the sale, the committee prepared a bond for deed that was executed by Olsen, who delivered a deposit in the amount of $30,500. The deed disclosed only that certain municipal taxes were prior in right to the plaintiffs mortgage. It did not mention the IndyMac mortgage. The court, Jones, J., approved the sale on December 10, 2008.

At the closing on January 21, 2009, Olsen tendered the balance of the purchase price. The committee delivered the committee deed to Olsen. Relying on the title assurances provided by his attorney; see footnote 6 of this opinion; Olsen transferred his interest in the property to 17 Ridge Road, LLC (LLC), of which Olsen is a one-half owner, by way of a quitclaim deed that was recorded on the land records moments after the committee deed was recorded. Following the closing, Olsen and his partner in LLC cleaned the property, plowed the snow, restored the electricity and paid the outstanding municipal taxes. On Sunday, April 12, 2009, Olsen discovered a lock box on the property preventing his access to it. IndyMac had taken title to and possession of the property as a result of its foreclosure action on its priority mortgage. LLC’s interest in the property had been foreclosed.

On April 23, 2009, Olsen filed a motion to be joined as a party to the present action and, on April 24, 2009, LLC filed a similar motion. Olsen also filed a motion to open and vacate the judgment of foreclosure by sale and all supplemental judgments, seeking as relief an order of restitution directing that the $216,000 that he paid for the purchase of the property, less the costs of the sale, be returned to him. The plaintiff objected, raising various grounds, including arguments that the court lacked jurisdiction to open the judgment once title had passed and that Olsen and LLC lacked standing to intervene as party defendants. The court, finding that Olsen’s predicament arose from a “series of cascading mistakes” in the foreclosure process, resolved the jurisdictional challenges in Olsen’s favor and granted his motion to open the judgment. This appeal followed.

I

The plaintiff claims that the court lacked jurisdiction to open the judgment of foreclosure by sale once both the confirmation of the sale and transfer of title had occurred. Olsen raises a number of arguments in response, which we will address in turn. Although the plaintiff frames the issue as one of subject matter jurisdiction, we conclude, more precisely, that the court lacked the authority to open the judgment of foreclosure by sale because title had vested in the purchaser.

We begin by setting forth our standard of review. This court has recognized that “[w]hether to grant a motion to open [a judgment of foreclosure by sale] rests in the discretion of the trial court.” Union Trust Co. v. Roth, 58 Conn. App. 481, 481, 755 A.2d 239 (2000). The issue in this appeal, however, is whether the court properly determined that it had the authority to grant a motion to open the judgment of foreclosure by sale after the court had confirmed the sale and title had vested in the purchaser, which presents a question of law over which our review is plenary. See Falls Mill of Vernon Condominium, Assn., Inc. v. Sudsbury, 128 Conn. App. 314, 318, 15 A.3d 1210 (2011) (“]t]he issue in this appeal is whether the court properly determined that it lacked authority to open the judgment of strict foreclosure . . . [which] presents a question of law over which our review is plenary”).

“Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it. . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction .... Although related, the court’s authority to act pursuant to a statute is different from its subject matter jurisdiction. The power of the court to hear and determine, which is implicit in jurisdiction, is not to be confused with the way in which that power must be exercised in order to comply with the terms of the statute.” (Citations omitted; internal quotation marks omitted.) In re Matthew F., 297 Conn. 673, 688-89, 4 A.3d 248 (2010).

A motion to open a judgment of foreclosure by sale is typically subject to two restrictions. First Connecticut Capital, LLC v. Homes of Westport, LLC, 112 Conn. App. 750, 752 n.3, 966 A.2d 239 (2009). First, a motion to open a judgment of foreclosure by sale must be filed within the four month restriction of General Statutes § 52-212a. Id. It is more appropriate to term this restriction as one affecting the court’s substantive authority rather than as one affecting its jurisdiction. Kim v. Magnotta, 249 Conn. 94, 104, 733 A.2d 809 (1999); Falls Mill of Vernon Condominium Assn., Inc. v. Sudsbury, supra, 128 Conn. App. 318 n.5. “[A] court has the inherent authority to open, correct or modify its judgments. . . . The provisions of § 52-212a do not operate to strip the court of its jurisdiction over its judgments, but merely operate to limit the time period in which a court may exercise its substantive authority to adjudicate the merits of a case.” (Citation omitted.) Bridgeport v. Triple 9 of Broad Street, Inc., 87 Conn. App. 735, 744, 867 A.2d 851 (2005).

In the present case, the court rendered judgment of foreclosure by sale on August 4, 2008, and approved the committee sale on December 10,2008. Olsen’s motion to open the judgment, filed on April 23,2009, was untimely pursuant to § 52-212a using either date. “Our case law on [§ 52-212a] recognizes that, in some situations, the principle of protection of the finality of judgments must give way to the principle of fairness and equity.” Kim v. Magnotta, supra, 249 Conn. 109. Because we are not presented with a situation in which the timeliness of the motion pursuant to § 52-212a is dispositive, we will focus on the second restriction.

Our precedent provides that the second restriction on a motion to open a judgment of foreclosure by sale is that it must be filed “before absolute title left the property owner, which [in the case in which the motion is filed by the holder of the equity of redemption] means before the committee sale was approved.” Northeast Savings, F.A. v. Hopkins, 22 Conn. App. 396, 400 n.3, 578 A.2d 136 (1990); see also First Connecticut Capital, LLC v. Homes of Westport, LLC, supra, 112 Conn. App. 752 n.3 (motion must be filed “before the committee sale is approved”). In the present appeal, the motion to open was not filed by the holder of the equity of redemption, but by the successful bidder at the foreclosure sale who subsequently took title to the property. Judicial confirmation of the sale, by itself, does not place the property beyond the court’s authority. We, therefore, frame the second restriction as requiring that the motion to open the judgment be filed before title to the property vests in the purchaser.

The court’s approval or ratification of the sale does not vest title automatically with the purchaser. Mortgage Electronic Registration Systems, Inc. v. White, 278 Conn. 219, 230, 896 A.2d 797 (2006). Rather, pursuant to General Statutes § 49-26, a conveyance of the property sold shall be executed by the committee, which conveyance shall vest in the purchaser the same estate that would have vested in the mortgagee if the mortgage had been foreclosed by strict foreclosure. Once title to the property vests in the purchaser, the property itself is placed beyond the power of the court. See Connecticut Savings Bank v. Howes, 9 Conn. App. 446, 447-48, 519 A.2d 1216 (1987) (dismissing as moot mortgagor’s appeal from denial of motion to open judgment in foreclosure by sale because title to property had passed). At that point, the proceeds from the sale take the place of the property and the court engages in whatever supplemental proceedings may be required to distribute those proceeds. See Mortgage Electronic Registration Systems, Inc. v. White, supra, 230; Moran v. Morneau, 129 Conn. App. 349, 356-57, 19 A.3d 268 (2011).

In the present case, title to the property vested in Olsen on January 21, 2009. Accordingly, we conclude that the court lacked the authority to grant Olsen’s motion to open the judgment of foreclosure by sale because it was without jurisdiction over the property.

We will address Olsen’s arguments to the contrary. First, Olsen argues that the court’s jurisdiction over foreclosure actions extends to motions to open and vacate judgments filed by the purchaser at the foreclosure sale, citing Citicorp Mortgage, Inc. v. Burgos, 227 Conn. 116, 121, 629 A.2d 410 (1993). In Citicorp Mortgage, Inc., the successful bidder at the foreclosure sale moved to set aside the sale and for the return of its deposit because the mortgagor had appealed from the court’s confirmation of the sale, resulting in a substantial delay between the court’s confirmation of the sale and the closing at which the bidder was to receive title. Id., 118-19. Our Supreme Court concluded that the trial court should have set aside the sale and returned the deposit. Id., 123. In the present case, Olsen consummated the closing, received title and transferred title to LLC. Olsen does not stand on the same footing as the successful bidder in Citicorp Mortgage, Inc., because, in that case, title had not vested in the successful bidder.

Next, Olsen argues that the court retains jurisdiction even after title has passed, citing New Milford Savings Bank v. Jajer, 244 Conn. 251, 257, 708 A.2d 1378 (1998). In New Milford Savings Bank, our Supreme Court determined that, pursuant to General Statutes § 49-15, the trial court could open a judgment of strict foreclosure. Id. The motion to open was filed by the foreclosing bank, which, although intending to foreclose on three parcels of land, inadvertently listed only two parcels in its complaint. Id., 253-54. The court reasoned that the trial court had the authority to open the judgment “to determine the scope of the initial foreclosure judgment.” Id., 257. After a hearing, the trial court had determined that title to the third property was under a cloud such that no one had absolute title to it at the time the bank filed its motion to open. Id., 257-58. Accordingly, our Supreme Court concluded that the applicable foreclosure statute did not “limit the jurisdiction of the trial court to exercise its equitable discretion and modify the scope of the . . . foreclosure judgment . . . .’’Id., 258. In the present case, Olsen submitted the highest bid at the auction, consummated the closing and received title to the property subject to the IndyMac mortgage. That Olsen was not aware that the title was subject to the IndyMac mortgage in no way clouded his title such that the trial court retained jurisdiction to open the judgment, even for the limited purpose articulated in New Milford Savings Bank.

Finally, Olsen argues that the court can open the foreclosure proceedings, even after title has vested in the purchaser, when the equitable circumstances so demand. We recognize that a court has broad equitable powers in the foreclosure context. Reynolds v. Ramos, 188 Conn. 316, 320, 449 A.2d 182 (1982). Our Supreme Court has stated that “[following confirmation of the sale, a judicial sale generally will not be set aside in the absence of fraud, mistake or surprise.” (Emphasis added.) Citicorp Mortgage, Inc. v. Burgos, supra, 227 Conn. 120. The trial court, although noting certain “highly relevant” behavior of the plaintiffs counsel; see footnote 4 of this opinion; made no finding that Olsen was the victim of fraud. Olsen has presented no legal support, and we have found none, for the proposition that a court has the authority to undo a foreclosure sale after title to the property has vested in the purchaser when, as here, the purchaser discovers that he purchased the property while mistaken about the status of the title. To accept such a proposition would be to invite uncertainty into our system of property conveyance. “The rule of caveat emptor is generally applicable to judicial sales”; (internal quotation marks omitted) Citicorp Mortgage, Inc. v. Burgos, supra, 120; and it is incumbent on the purchaser to conduct an independent investigation concerning the title to the property that he acquires at the sale before he consummates the closing.

In the present case, Olsen received title to the property at the closing, although he was unaware that his title was subject to the IndyMac mortgage. The court found that it had rendered a judgment of foreclosure by sale on the basis of a mistaken belief that there was equity in the property sufficient to justify a sale, and the resulting errors in the sale process became apparent only after the priority mortgage was foreclosed. While judicial error can be an appropriate basis for the court to open a judgment; see Connecticut Savings Bank v. Obenauf, 59 Conn. App. 351, 355, 758 A.2d 363 (2000) (relief granted facially inconsistent with complaint); it cannot be so in this case because, at the time the court opened the judgment of foreclosure by sale, title had vested in the purchaser. Accordingly, the opening of the foreclosure judgment must be reversed.

II

The plaintiff also claims that the court should not have granted the motions to join as party defendants filed by both Olsen and LLC because they lacked standing. LLC and Olsen argue in response that they have been specifically injured by the errors in the entire foreclosure process and, thus, have standing to “seek a judgment vacating the supplemental judgments and the judgment of foreclosure by sale.” We address this claim because, although the court did not have the authority to open and vacate the judgment of foreclosure by sale, the court found that the motion to open was timely insofar as it sought to open and vacate the supplemental judgments. Moreover, the court still holds certain proceeds from the sale, which are subject to supplemental proceedings. We conclude that neither Olsen nor LLC should have been permitted to intervene in this action as party defendants to challenge the distribution of the proceeds.

The following additional facts and procedural history are relevant. After Olsen acquired title to the property at the closing and then transferred it to LLC, the plaintiff filed a motion for determination of priorities and supplemental judgment. In its memorandum of decision regarding Olsen’s motion to open the foreclosure judgment, the court found that it was still unaware of the priority IndyMac mortgage when, on March 24, 2009, it disbursed to the plaintiff $91,854.27 in supplemental proceeds. On March 27, 2009, the estate, which had defaulted on the two mortgages, filed a motion for a determination of priorities and for supplemental judgment, in which it sought the remaining proceeds from the sale. The court granted this motion on April 14, 2009. Olsen and LLC filed their motions to join on April 23 and April 24, 2009, in which they alleged facts concerning how Olsen acquired and how LLC subsequently lost title to the foreclosed property and in which they sought a refund of the purchase price. The court entered a separate order on the estate’s motion for supplemental judgment on April 27, 2009, staying disbursement of the proceeds. When the court issued its memorandum of decision on Olsen’s motion to open, it held approximately $119,064.17. The court rendered judgment opening the foreclosure judgment, but had not yet entered orders opening and vacating the supplemental judgments.

Although the decision whether to grant a motion to add a party to a pending legal proceeding generally rests within the sound discretion of a trial court; Lettieri v. American Savings Bank, 182 Conn. 1, 13, 437 A.2d 822 (1980); the issue of whether either Olsen or LLC could intervene as party defendants to seek a refund of the moneys paid for the foreclosed property is a question over which our review is plenary. Washington Trust Co. v. Smith, 241 Conn. 734, 745, 699 A.2d 73 (1997), overruled in part on other grounds by Kerrigan v. Commissioner of Public Health, 279 Conn. 447, 454-55, 904 A.2d 137 (2006) (except for issue of timeliness of motion to intervene, trial court’s decision on motion to intervene subject to plenary review). The parties have framed the question as one of standing, which “is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy. . . . When standing is put in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication of the issue .... Standing requires no more than a colorable claim of injury; a [party] ordinarily establishes . . . standing by allegations of injury. . . . [Standing exists to attempt to vindicate arguably protected interests.” (Citations omitted; internal quotation marks omitted.) Eder Bros., Inc. v. Wine Merchants of Connecticut, Inc., 275 Conn. 363, 369, 880 A.2d 138 (2005). Similarly, when a party moves to intervene, “[t]he inquiry is whether the claims contained in the motion [to intervene], if true, establish that the proposed intervenor has a direct and immediate interest that will be affected by the judgment.” Washington Trust Co. v. Smith, supra, 747.

We begin our analysis by noting that the successful bidder at an auction on foreclosed property has standing to move the court to undo the sale after confirmation, but prior to title passing; Citicorp Mortgage, Inc. v. Burgos, supra, 227 Conn. 123; and to become a party appellee to an appeal taken from the judgment approving the committee sale when the appellants challenge the adequacy of the price. New Milford Savings Bank v. Mulville, 56 Conn. App. 521, 523, 744 A.2d 447 (2000) (appeal jeopardized bidder’s right to purchase subject property at amount of successful bid).

We conclude that a purchaser at a foreclosure sale who has consummated the closing, however, does not have standing to join the supplemental proceedings in order to seek the refund of his purchase price on the ground that a recorded, outstanding priority lien existed. The purpose of supplemental proceedings is to adjudicate the rights of lienholders to the funds realized from the sale after the sale has been ratified by the court. Moran v. Momeau, supra, 129 Conn. App. 356-57; see also Voluntown v. Rytman, 27 Conn. App. 549, 553, 607 A.2d 896 (noting that, when purchase price exceeded recorded liens, proceeds from sale could pay encumbrancers and foreclosed former owner), cert. denied, 223 Conn. 913, 614 A.2d 831 (1992); D. Caron & G. Milne, Connecticut Foreclosures (4th Ed. 2004) § 17.04C, p. 393 (“greatest singular function of the supplemental judgment is the determination of priorities and the disbursement of the proceeds of the sale”). In Connecticut, supplemental proceedings in a foreclosure action are not a means by which foreclosure sale purchasers, dissatisfied with the condition of the property purchased or the title to the property received, may seek either abatement or refund of the purchase price.

The facts of this case provide an additional compelling reason for us to reach this result. Olsen took title to the property on January 21, 2009. That day, he conveyed his interest in the property to LLC by way of a quitclaim deed. Such a deed is “an ordinary and primary instrument of conveyance and conveys to the grantee whatever interest the grantor has in the property.” Hoyt v. Ketcham, 54 Conn. 60, 62, 5 A. 606 (1886). When Olsen filed his motions to join as a party defendant and to open the judgments, he did not hold an individual interest in the property. It follows that he did not hold an interest that could be affected by any entries of supplemental judgment distributing the proceeds from the sale, which proceeds had taken the place of the property. Thus, even if a successful bidder at a foreclosure sale generally had a right to intervene in the supplemental proceedings to seek the return of his purchase price after taking title, which he does not, Olsen, who no longer had any individual interest in the property, could not pursue such right.

Regarding LLC, we note that only Olsen, and not LLC, filed the motion to open the supplemental judgments. Even if that were not the case, we conclude that LLC did not have standing to assert a claim for the return of the sale proceeds because it did not expend those funds. Any such claim was personal to Olsen, and was therefore not one which LLC could pursue on his behalf. Cf. Wasko v. Farley, 108 Conn. App. 156, 170, 947 A.2d 978 (“[a] member [of an LLC] may not sue in an individual capacity to recover for an injury the basis of which is a wrong to the limited liability company”), cert. denied, 289 Conn. 922, 958 A.2d 155 (2008); General Statutes § 34-167 (a) (“Property transferred to or otherwise acquired by a limited liability company is property of the limited liability company and not of the members individually. A member has no interest in specific limited liability company property.”).

Accordingly, we conclude that neither Olsen nor LLC had standing to join the present action as party defendants and the court was without subject matter jurisdiction to grant either of them any relief as asserted in Olsen’s motion to open.

The judgment is reversed and the case is remanded with direction to deny the motion to open the judgment of foreclosure by sale.

In this opinion the other judges concurred.

       Olsen and 17 Ridge Road, LLC, were added as party defendants in May, 2009. The named defendant, Debra Lindland, executrix (estate of Madlyn Landin a/k/a Madlyn L. Landin and Madlyn Louise Landin) (estate), is not a party to the present appeal. The property was formerly owned by the estate, which defaulted on both the mortgage held by the plaintiff and a mortgage held by IndyMac Federal Bank, FSB. Debra Lindland, David Landin, Donna Hassler, Middlesex Hospital and the department of revenue services were also named as defendants but are not parties to this appeal.

       The plaintiff makes additional claims that go to the merits of the trial court’s decision that it could, in the exercise of its broad equitable powers, open the judgments and afford relief to Olsen. These claims are that the application of the lis pendens statute; General Statutes § 52-325 (a); to the facts of this case renders the trial court’s decision erroneous and that the negligence of Olsen’s attorney, as his agent, cannot serve as a basis for the court to exercise jurisdiction or to provide relief. We do not reach these claims.
      “Generally, the granting of a motion to open is not a final judgment from which an appeal will lie. ... An appeal from the granting of a motion to open may be filed, however, where the authority of the trial court to do so is challenged. . . . Accordingly, we address [the plaintiffs] claims only insofar as they challenge the court’s power to open the judgment.” (Citations omitted; internal quotation marks omitted.) Byars v. FedEx GroundPackage System, Inc., 101 Conn. App. 44, 46 n.2, 920 A.2d 352 (2007).

       Although the worksheet showed a negative equity in the amount of $12,815.46, the parties agree that calculation is incorrect and that the actual negative equity at the time was $72,815.46.

       The court found in its memorandum of decision that it had made this erroneous determination at that earlier stage of the proceedings. The court also found, however, that the behavior of the plaintiffs counsel was “highly relevant.” Specifically, the court noted that the plaintiffs counsel was aware of the IndyMac mortgage when the court entered the judgment of foreclosure by sale. He was, in fact, the same counsel of record in the IndyMac foreclosure action and his firm filed the notice of lis pendens on the land records with respect to both foreclosures.

       General Statutes § 49-24 provides: “All liens and mortgages affecting real property may, on the written motion of any party to any suit relating thereto, be foreclosed by a decree of sale instead of a strict foreclosure at the discretion of the court before which the foreclosure proceedings are pending.”

       In addition to the foregoing defects and omissions in the sale process itself, the court found that Olsen was misled because of certain failures by his own counsel who, inter alia, issued to Olsen a title insurance policy that failed to except the IndyMac mortgage.

       The plaintiff argues, inter alia, that General Statutes § 49-15, which pertains to strict foreclosure, is “subsume [d] ” by General Statutes § 49-26, which pertains to foreclosure by sale. In § 49-15, the legislature crafted a protocol for opening and modifying judgments of strict foreclosure notwithstanding the four month limitation imposed by General Statutes § 52-212a. Falls Mill of Vernon Condominium-Assn., Inc. v. Sudsbury, 128 Conn. App. 314, 319, 15 A.3d 1210 (2011). In response, Olsen maintains that because a successful bidder at a foreclosure sale does not receive the same procedural protections as a mortgagor in the strict foreclosure process, § 49-15 does not apply to the present action.
      We conclude that, by its terms, § 49-15 does not apply to the present action. See First Connecticut Capital, LLC v. Homes of Westport, LLC, 112 Conn. App. 750, 752 n.3, 966 A.2d 239 (2009), citing D. Caron & G. Milne, Connecticut Foreclosures (4th Ed. 2004) § 9.01B, p. 203 (“[§] 49-15, by its very terms, is applicable only to judgments of strict foreclosure, and thus can have no effect on a judgment of foreclosure by sale” [internal quotation marks omitted]).

       General Statutes § 52-212a provides in relevant part: “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, any civil judgment or decree rendered in the Superior Court may not be opened or set side unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed. . . . The parties may waive the provisions of this section or otherwise submit to the jurisdiction of the court . . . .”

       “Under Connecticut law, a judicial sale becomes complete and creates a legal right to obligations among parties when it is confirmed and ratified by the court.” (Emphasis added.) Hartford Federal Savings & Loan Assn. v. Tucker, 13 Conn. App. 239, 247, 536 A.2d 962, cert. denied, 207 Conn. 805, 540 A.2d 373 (1988). “The possibility always remains that the bidder will fail to close . . . [and] if this happens, the court is required to order either a new sale or a strict foreclosure. Either event revives the previously extinguished equity of redemption and thus affords the owner a second opportunity to redeem the premises.” D. Caron & G. Milne, Connecticut Foreclosures (4th Ed. 2004) § 9.01B, p. 203. Because the court can order either a new sale or strict foreclosure even after confirmation if the bidder fails to close, it is clear that judicial confirmation of the sale, by itself, does not affect the court’s authority over the property.

       General Statutes § 49-26 provides in relevant part: “When a sale has been made pursuant to a judgment therefor and ratified by the court, a conveyance of the property sold shall be executed by . . . [the committee], which conveyance shall vest in the purchaser the same estate that would have vested in the mortgagee ... if the mortgage . . . had been foreclosed by strict foreclosure .... The court, at the time of or after ratification of the sale, may order possession of the property sold to be delivered to the purchaser . . . .”

       The out-of-state and Superior Court authority cited by Olsen stand for the unremarkable proposition that a purchaser at a foreclosure sale can move the court to set aside the sale when the purchaser relied on misinformation provided by the committee or the conduct of the sale was otherwise misleading. Title had not vested in the purchaser in any of those cases.

       The court credited the expert testimony offered by the plaintiff that both the plaintiff and the estate should have expected their interests to be foreclosed in the IndyMac action and neither reasonably could have expected to receive any funds from the present action. The court characterized the plaintiffs and the estate’s receipt of any supplemental proceeds as a “windfall” of approximately $100,000 each.

       Courts generally do not permit a purchaser at a foreclosure sale to seek a refund or abatement of the purchase price for outstanding liens after judicial confirmation of the sale, except under limited circumstances. See, e.g., 50A C.J.S. 58, Judicial Sales § 65 (2008); 47 Am. Jur. 2d, Judicial Sales §§ 119 and 120 (2006).

       At the hearing on the motion to open held on June 2, 2009, counsel for Olsen and LLC stated on the record that both parties sought “to vacate and overturn the judgment,” but the pleadings were not amended to conform to that representation.