64 Conn. App. 154 | Conn. App. Ct. | 2001
Opinion
In 1998, Bankers Trust of California, N.A. (Bankers Trust), commenced an action against the defendants, Retha M. Neal and Charles Neal, Jr., to foreclose an $85,700 mortgage on property that the Neals owned in New Haven.
The defendants claim that the trial court improperly rendered judgment (1) without an evidentiary hearing on the amended complaint and (2) in reliance on the plaintiffs affidavit that the mortgage note had been lost. We affirm the judgment of the trial court.
I
While this appeal was pending, the trial court opened the judgment and set new law days. The defendants took an amended appeal, claiming that the court improperly rendered a modified foreclosure judgment that changed the law days (1) on oral motion, (2) without good cause and (3) "without prior notice to the defendants. Regardless of which party prevails on the issues raised in the amended appeal, new law days will have to be set. Therefore, there is no practical relief that this court could grant on the defendants’ claims.
Despite acknowledging that those issues may be moot, the defendants “offer this court an opportunity for salutary observations” concerning foreclosure proceedings. The Appellate Court has no jurisdiction to adjudicate a case that is not justiciable. See State v. Nardini, 187 Conn. 109, 111, 445 A.2d 304 (1982). Moot or academic questions do not present justiciable issues, and the court may not be used to obtain judicial opinions on points of law. State v. Macri, 189 Conn. 568, 569, 456 A.2d 1203 (1983). Accordingly, we decline the defendants’ invitation to render salutary observations on the law of foreclosure. The amended appeal is dismissed as moot.
II
The following facts and procedural history are necessary for disposition of the initial appeal. Bankers Trust assigned its mortgage to United Companies Lending
The defendants do not claim that the mortgage to Bankers Trust was invalid, nor do they claim that United lacks authority pursuant to General Statutes § 52-118
The defendants raise numerous questions concerning possible technical errors in the pleading and processing of the case in the trial court, but we are unable to discern what practical relief we can grant to the defendants. The best they could achieve would be a remand for new proceedings. The defendants do not dispute that the note is in default and that United has a right to foreclose
It is difficult to equate this appeal with the letter and spirit of Practice Book § 1-8, which provides that “[t]he design of these rules being to facilitate business and advance justice, they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice.” Requiring United to go through another foreclosure to correct technical defects, even if they existed, would work injustice and would conflict with the intent of Practice Book § 1-8.
The court stressed to the defendants that the debt exceeded the value of the property. The deficit was calculated as of January 3, 2000, and did not include attorney’s fees, costs and expenses. Accruing per diem interest, appellate counsel fees, and costs and other expenses will result in an ever widening disparity as time passes. When the debt of a prior mortgage exceeds that of a later encumbrance, the latter is worthless because the property contains no equity to satisfy the later encumbrance. Federal Deposit Ins. Corp. v. Bombero, 37 Conn. App. 764, 771, 657 A.2d 668 (1995), appeal dismissed, 236 Conn. 744, 674 A.2d 1324 (1996).
In the matter before us, the defendants could have foreclosed the second mortgage that they hold on the property at any time. We are not furnished with a meaningful answer as to why they have not done so. The only response to our inquiry as to why they did not foreclose their own mortgage was that “it was not practical” to do so. We agree with the court, which stated in response to the defendants’ motion for articulation, that “[i]f the second mortgagee does not believe that [foreclosure of the second mortgage] is a good option from a financial standpoint, that should not be of any
United points out that the defendants have frustrated its attempt to prosecute this case to conclusion by continuing to appeal each time the court resets the law days. Practice Book § 61-11 (a) provides for an automatic stay on the enforcement of a judgment until the final determination of an appeal.
In the present case, on two occasions, the court terminated automatic stays on the grounds that appeals were taken for the purpose of delay and that due administration of justice required enforcement of the judgment by the setting of law days. With that history in mind, United asks that the defendants be enjoined from filing further appeals from the setting of law days. Under the circumstances, that is not an unreasonable request.
The judgment is affirmed and the case is remanded with direction to set new law days, and the defendants are enjoined from filing further appeals from the setting of new law days without prior approval from the trial court. See Rothstein v. Trantino, 228 Conn. 854, 855 n.1, 635 A.2d 813 (1994).
In this opinion the other judges concurred.
The Neals were defaulted for failure to appear and subsequently received a discharge in bankruptcy.
General Statutes § 52-118 provides in relevant part: “The assignee and equitable and bona fide owner of any chose in action, not negotiable, may sue thereon in his own name. . . .”
Practice Book § 61-11 (a) provides in relevant part: “Except where otherwise provided by statute or other law, proceedings to enforce or carry out the judgment shall be automatically stayed until the time to take an appeal has expired. If an appeal is filed, such proceedings shall be stayed until the final determination of the cause. . .
Practice Book § 61-11 (c) provides in relevant part: “If the judge who tried the case is of the opinion that (1) an extension to appeal is sought, or the appeal is taken, only for delay or (2) the due administration of justice so requires, the judge may at any time, upon motion and hearing or sua sponte, order that the stay be terminated.”