2 Conn. App. 460 | Conn. App. Ct. | 1984
This is an appeal
On February 29,1980, Whitewood executed a mortgage deed and note in the principal amount of $1,750,000 in favor of the plaintiff, Abacus Mortgage Investment Company (Abacus). The mortgage deed provided that Abacus was to retain $200,000 of the proceeds of the note in escrow. Whitewood was to have no interest obligation on the escrow fund which was to be applied by Abacus to the payment of interest, principal or other amounts due under the note and mortgage. The note fixed the interest rate at 3 percent above the prime rate in effect at the time any payment was due. The prime rate was defined as that varying rate of interest per annum equal to the highest rate announced by the Continental Illinois National Bank and Trust Company of Chicago, Illinois (the bank), as being charged to its largest and most creditworthy corporate borrowers in that city for ninety day unsecured loans.
The plaintiff used the $200,000 escrow fund to pay the interest due until the fund was depleted. The plaintiff, during this period, received notice of the prime rate by mail from the bank and mailed out monthly state
On September 26, 1983, the trial court granted the plaintiff’s motion for judgment of strict foreclosure. The court also found, inter alia, that the amount of the debt Whitewood owed to the plaintiff was $2,548,962.51; that there was not sufficient evidence in the record to support the claim that the plaintiff was in possession of the property and thereby obligated to apply the rental income to the debt; and that a sale of the property would not benefit any of the parties, as there was no equity in the property.
On appeal, the defendant claims error in the court’s finding of interest and thereby in its finding of the amount of the debt; in its finding that the plaintiff was not obligated to apply the rental income to reduce the debt; and, finally, in its decision that a judgment of strict foreclosure was an appropriate remedy in this case.
The court correctly ascertained the rate of interest and the interest due. The trial judge had before him the mortgage deed and note. These documents, along with the testimony and the exhibits introduced at the
The defendant’s second claim, that the plaintiff should have applied some of the rental income to reduce the mortgage debt, is also without merit. The trial court found that there was not sufficient evidence to support the claim that the plaintiff was a mortgagee in possession of the property and therefore required to use the rent to reduce the debt. See Milici v. Ferrara,
The final issue raised by the defendant is whether the judgment of strict foreclosure best protects the interests of the parties. The only evidence of value presented to the court was the plaintiff’s appraisal. The defendant did not produce any witnesses to refute the plaintiff’s evidence. The debt found by the court greatly exceeds the value of the property. The standard of review of a judgment of foreclosure by sale or by strict foreclosure is whether the trial court abused its discretion. Constitution Bank & Trust Co. v. Robinson, 179 Conn. 232, 238, 425 A.2d 1268 (1979); City Savings Bank v. Lawler, 163 Conn. 149, 155, 302 A.2d 252 (1972). We cannot, in this case, find any abuse of discretion by the trial court in its finding that a judgment of strict foreclosure best protects the interests of all the parties. The trial court wisely refused, in the exercise of its discretion, to impose upon the plaintiff the additional costs and expense of a foreclosure by sale. Bradford Realty Corporation v. Beetz, 108 Conn. 26, 31, 142 A. 395 (1928). We find that the court, in rendering a judgment of strict foreclosure, acted within its sound discretion.
There is no error.
In this opinion the other judges concurred.
This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).
As used in this opinion, “defendant” hereinafter refers to Robert M. Levintan, the sole appellant.