54 Conn. App. 529 | Conn. App. Ct. | 1999
In this appeal from a judgment of foreclosure, the sole claim of the defendants James E. Conant and Rita Conant
The trial court found the following facts with respect to the defendants’ application. On September 24, 1985, the defendants signed an adjustable rate note in the original principal amount of $389,000, which note was secured by a mortgage deed on their home at 36 Indian Valley Road, Weston. On the day of the application hearing, the defendants owed the plaintiff, Citicorp Mortgage, Inc., $385,325.33, not including escrow advances for real estate taxes, insurance, legal fees and court costs. In addition, the defendants were indebted under a second mortgage in the amount of $131,000, a third mortgage in the amount of $100,000, three federal tax liens in the total amount of $28,400, two unsecured loans to lending institutions in the amount of $47,605.97 and credit card debt in the amount of $31,555.71. The stipulated value of the mortgaged premises on the date of the hearing was $475,000.
The trial court found that the defendants were eligible to seek a restructured mortgage as underemployed persons because their earned incomes during the twelve month period immediately preceding the commencement of the foreclosure action was less than 75 percent of their annual aggregate income during the two years preceding such twelve month period and each had an income of less than $50,000. See General Statutes § 49-31f (d) (6). It also found that the defendants’ principal residence, in which they had lived for more than two years, was being foreclosed and no foreclosure action had been brought against the defendants in the preceding seven years. See General Statutes § 49-31f (a).
“In determining the restructured mortgage debt, the court shall add the following to the existing principal balance of the mortgage debt: (1) All interest then due the lender and any interest that will be earned to the end of any restructuring period, including interest on any payments advanced by the lender during the restructuring period, such interest to be computed at the rate provided in the mortgage note, (2) real property taxes ... (4) court costs, legal fees and any other sums the court determines to be due under the terms of the mortgage indebtedness by the court. The court shall then apply the composite interest rate as provided in subsection (c) of this section to such total restructured debt over the remaining term of the loan.” General Statutes § 49-3li (a). The payments that the defendants
We agree, in this case, that the trial court did not abuse its discretion when it denied the defendants’ application. Its findings that the defendants’ visions of their future earnings were speculative, that they had no equity in the mortgaged property, that their financial situation would make it unlikely that they would be able to make timely payments on the restructured mortgage and that the plaintiff would be prejudiced by a restructuring of the mortgage were based on the evidence before it. We conclude, therefore, that the trial court properly denied the defendants’ application for protection from foreclosure.
The judgment is affirmed and the case is remanded for the purpose of setting a new sale date.
In this opinion the other judges concurred.
The holders of encumbrances on the Conants’ property subsequent to that of the plaintiff were also named as defendants. We refer in this opinion to James E. Conant and Rita Conant as the defendants.
General Statutes § 49-31f (a) provides: “Subject to the provisions of subsection (b), a homeowner who is underemployed or unemployed against whom a foreclosure action is brought may make application, together with a financial affidavit, to the court having jurisdiction over the foreclosure action for protection from foreclosure if: (1) The mortgage being foreclosed encumbers the residential real property, which property has served as his principal residence, for a period of not less than two years, (2) such homeowner has not had a foreclosure action commenced against him in the preceding seven-year period and (3) such homeowner has not received an emergency mortgage assistance loan and has not applied for emergency mortgage assistance for two years before the application under the provisions of sections 8-265cc to 8-265Ü, inclusive.”
General Statutes § 49-31d provides in relevant part,: “(2) ‘Homeowner’ means a person who has an ownership interest in residential real property-secured by a mortgage which is the subject of a foreclosure action, and who has owned and occupied such property as his principal residence for a continuous period of not less than two years immediately preceding the commencement of such foreclosure action.
“(6) ‘Underemployed person’ means aperson whose earned income during the twelve-month period immediately preceding the commencement of the foreclosure action is (A) less than fifty thousand dollars and (B) less than seventy-five per cent of his average annual earned income during the two years immediately preceding such twelve-month period.”
General Statutes § 49-31f (d) provides: “In determining the eligibility of a homeowner for protection from foreclosure under the provisions of sections 49-31d to 49-31Í, inclusive, the court may consider any relevant facts and shall consider:
“(1) The likelihood that the homeowner will be able to make timely payments on the restructured mortgage commencing at the end of the restructuring period.
“(2) The presence of any substantial prejudice to the lender or any subordinate lienor or encumbrancer which would result from a restructuring of the mortgage debt.”