175 Conn. App. 770
Conn. App. Ct.2017Background
- Rockstone held two judgment liens (from a 2000 Fleet judgment) on the Sanzos’ primary residence; it later obtained an open-end mortgage (2009) and a forbearance agreement securing payment via that mortgage.
- Plaintiff originally sued to foreclose the judgment liens after defaults; then obtained leave to amend and filed an operative complaint seeking strict foreclosure of the mortgage (abandoning the lien-foreclosure claim).
- Defendants asserted a special defense that the mortgage/forbearance scheme was void as a de facto waiver of the homestead exemption (Conn. Gen. Stat. § 52-352b(t)).
- Trial court (Gilardi, J.) held the forbearance agreement void as against public policy, denied foreclosure of the mortgage, and entered judgment foreclosing the original judgment liens without determining debt amount or foreclosure method.
- Plaintiff appealed the denial of mortgage foreclosure; defendants cross-appealed the judgment foreclosing the judgment liens (arguing those claims had been withdrawn by the amended complaint).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court’s denial of mortgage foreclosure is an appealable final judgment | Denial is final because it denies the relief requested in the operative (amended) complaint | Not final because court did not determine debt amount or foreclosure method for the judgment liens | Denial was a final, appealable judgment (operative complaint relief was denied) |
| Whether the mortgage/forbearance is void as against public policy for effectively waiving the homestead exemption | Mortgage is a consensual lien; § 52-352b(t) excludes consensual liens from the homestead exemption, so mortgage is valid | Forbearance/mortgage is a de facto waiver of the homestead exemption and thus void as against public policy | Trial court erred: mortgage is a consensual lien under § 52-352b(t) and not invalidated as a public-policy waiver; mortgage foreclosure denial reversed |
| Whether the trial court properly entered judgment foreclosing the original judgment liens after plaintiff amended to pursue only the mortgage | Plaintiff sought mortgage foreclosure; judgment liens issue was effectively withdrawn by amendment | Original judgment-lien foreclosure was improper because the operative complaint abandoned that relief | Trial court erred: it improperly rendered foreclosure judgment on the judgment liens because the amended complaint superseded and withdrew the original lien foreclosure claim |
Key Cases Cited
- Essex Savings Bank v. Frimberger, 26 Conn. App. 80 (interlocutory judgment in foreclosure lacking determination of debt or sale/strict foreclosure is not appealable)
- J & E Investment Co., LLC v. Athan, 131 Conn. App. 471 (foreclosure judgment is final only after method and debt amount determined)
- Morici v. Jarvie, 137 Conn. 97 (foreclosure judgment must determine amount and fix law days to be adequate)
- Santorso v. Bristol Hospital, 308 Conn. 338 (claims not appealable on their own may be reviewed when inextricably intertwined with appealable claims)
- Wesley v. DeFonce Contracting Corp., 153 Conn. 400 (an amended complaint supersedes and withdraws the original complaint)
- Clukey v. Sweeney, 112 Conn. App. 534 (appellate courts may assume jurisdiction over intertwined claims)
- JP Morgan Chase Bank, N.A. v. Zubretsky, 130 Conn. App. 115 (discussion of homestead exemption and calculation of value net of consensual liens)