177 Conn. App. 1
Conn. App. Ct.2017Background
- Seaport Capital Partners (Seaport) filed nine foreclosure actions (Jan 2012) against property owner Sheri Speer and obtained appointment of Edward Bona as receiver of rents by agreement (no bond). Bona later filed periodic receiver reports.
- Seaport moved to compel Bona to file reports and to account for and turn over rents; the court ordered quarterly reports and that income be used for each property’s debts.
- Seaport later filed motions for orders of payment seeking $180,094.32 (total across nine matters) based largely on amounts shown in Bona’s own receiver reports and certain capital contributions by Speer that were recorded as supplemented income.
- The trial court denied approval of Bona’s reports as unsatisfactory, granted Seaport’s payment motions, and gave Bona opportunities and deadlines to file corrected reports and to request reconsideration. Bona failed to produce adequate revised reports.
- Bona petitioned by writ of error arguing (1) lack of subject matter jurisdiction because Seaport allegedly did not fully fund loans (no standing); (2) the payment orders were improper because Speer, not he, collected rents; (3) judicial estoppel barred Seaport; and (4) the court abused its discretion by denying reargument. The writ was dismissed.
Issues
| Issue | Plaintiff's Argument (Bona) | Defendant's Argument (Seaport) | Held |
|---|---|---|---|
| Subject-matter jurisdiction / standing to foreclose | Seaport did not fully fund eight mortgages so it lacked standing; receivership therefore void | Seaport produced the notes and is presumptively the holder entitled to foreclose; presumption unrebutted | Court had jurisdiction; Seaport entitled to rebuttable presumption as note holder and Bona presented no evidentiary rebuttal |
| Order for payment based on receiver reports | Bona never collected the full amounts; Speer collected and deposited most rents; amounts ordered exceed monies Bona actually had | Payment calculations were supported by Bona’s own filed reports and some capital contributions by Speer were recorded as reimbursed from rents; receiver duty to collect/account | Orders upheld: trial court’s findings (based on Bona’s reports and evidence) were not clearly erroneous and Bona bore burden to correct inaccurate reports |
| Judicial estoppel | Seaport is estopped from asserting Bona owes rents because Seaport previously claimed Speer collected them | Seaport never took a clearly inconsistent position in an earlier proceeding (no prior proceeding) | Judicial estoppel does not apply; no earlier inconsistent position was taken |
| Denial of motions to reargue | Court misapprehended facts and ordered payment based on conjecture; court abused discretion by denying reargument | Court reasonably relied on admitted amounts in Bona’s reports, gave multiple chances to correct them, and properly denied reargument | No abuse of discretion; denial affirmed because Bona failed to show misapprehension or supply corrected reports |
Key Cases Cited
- Mengwall v. Rutkowski, 152 Conn. App. 459 (2014) (production of the note gives holder a rebuttable presumption of standing to foreclose)
- Butler v. Hartford Technical Institute, Inc., 243 Conn. 454 (1997) (standard for reviewing factual findings; factual findings tested for clear error)
- Hartford Federal Savings & Loan Assn. v. Tucker, 13 Conn. App. 239 (1988) (receiver holds property as an arm of the court; duties of receiver to collect and account for rents)
- Hartford Federal Savings & Loan Assn. v. Tucker, 196 Conn. 172 (1985) (receiver liability where receiver fails to account for funds)
- MacDermid, Inc. v. Cookson Group, PLC, 149 Conn. App. 571 (2014) (doctrine and purpose of judicial estoppel)
- Chester v. Manis, 150 Conn. App. 57 (2014) (appellant’s burden to provide an adequate record on appeal)
- Lyme Land Conservation Trust, Inc. v. Platner, 325 Conn. 737 (2017) (appellate deference to trial court’s weighing and interpretation of evidence)