2 Fraser Place Condominium Assn., Inc. v. Mathis

Syllabus

The plaintiff condominium unit owners' association sought to foreclose a statutory lien on a certain unit owned by the defendant S and occupied by the defendant M for unpaid monthly common expense assessments and late charges. The court rendered a judgment of strict foreclosure in 2013, and the law days passed without redemption. The plaintiff never took possession of the unit. The plaintiff had applied for orders of execution of ejectment, several of which were granted; however, the ejectment never took place. In 2023, S filed an application for a writ of audita querela, arguing that the latest in a series of ejectment orders should be enjoined because, after the judgment of strict foreclosure had been rendered but prior to the passing of the law days, she purportedly had reached an agreement with the plaintiff to pay off the judgment amount, had performed in accordance with that agreement and, thus, redeemed her ownership interest in the property. At the hearing on the application, M testified that she had made a partial payment to the plaintiff in an amount that was less than the full amount needed to redeem the property. The court excluded certain evidence that the defendants' counsel sought to introduce, including a letter written by an attorney for S Co., a mortgage servicer, regarding the status of a mortgage on the property, as well as a lis pendens noticing a subsequent foreclosure action against the defendants. The court denied the applica- tion for a writ of audita querela, concluding that the defendants failed to prove that the issuance of the writ was warranted because the evi- dence did not establish that the defendants had tendered the full amount due to redeem the property prior to the passage of the law days and title vesting in the plaintiff. Held: 1. The trial court did not abuse its discretion in denying the defendants' application for a writ of audita querela: the defendants presented no evidence, either with the application or at the evidentiar