3 Conn. App. 644 | Conn. App. Ct. | 1985
The named defendant, Andreas Dessoff,
On April 26,1978, Dessoff signed a note in favor of the plaintiff which was secured by a mortgage on his condominium. Under the terms of that note, Dessoff was to pay $470.19 monthly to the plaintiff by the fifteenth day of the month. Dessoff failed to make the agreed-upon payments in December, 1980, January, 1981, and February, 1981. Consequently, on February 25, 1981, the plaintiff sent Dessoff a letter which stated, in part: “This is your final opportunity to bring
Dessoff did not reply to this letter and on March 20, 1981, Attorney Joseph F. Sgueglia, Jr., representing the plaintiff, sent Dessoff a letter stating that his account had “been turned over to my office for collection.” As a result of this letter and a subsequent telephone conversation with Sgueglia, Dessoff wired two checks to the plaintiff on March 27, 1981. The total amount of these checks equalled the four installments due for December, 1980, and January through March, 1981. Upon receipt, the plaintiff forwarded these checks to Sgueglia with directions that they should be returned to Dessoff. Sgueglia did so and shortly thereafter this action was commenced.
Having admitted all of the factual allegations of the complaint in his answer, Dessoff raised three special defenses on the basis of two theories: (1) That during his telephone conversation with Sgueglia, Dessoff made an agreement with him under which the plaintiff would forbear from foreclosing if certain conditions were met;
Dessoff’s first claim of error is that the court erred in failing to rule on his equitable defense. We agree. Practice Book § 3060B requires the trial court to “include in its decision its conclusion as to each claim of law raised by the parties.” Practice Book § 285A further provides that “[i]f a party intends to raise any claim of law which may be the subject of an appeal, he must either state the same distinctly to the court before his argument is closed or state it in a written trial brief.” Thus, although this defense was less than clear when originally pleaded, the theory upon which it is based was made clear in Dessoff s post-trial brief.
On its merits, Dessoff s claim that his tender
Once the plaintiff’s intent to accelerate was declared, the accceleration provision became operable and
Dessoff’s fourth claim of error, that the court erred in opening its judgment of foreclosure by sale in order to set new law days for strict foreclosure, also fails. Such a decision is within the discretion of the trial court and will not be disturbed in the absence of an abuse of that discretion. Hartford Federal Savings & Loan Assn. v. Stage Harbor Corporation, 181 Conn. 141, 143, 434 A.2d 341 (1980). The record is replete with evidence that the court did not abuse its discretion in this case.
There is no error.
In this opinion the other judges concurred.
Robert S. Bello, also a defendant in this action, suffered a default judgment below and is not a party to this appeal.
This appeal, originally filed in the Supreme Court, was transferred to this court. General Statutes § 51-199 (c).
Dessoff’s preliminary statement of issues also claimed, as error, the court’s decision that this first theory did not constitute a bar to the foreclosure. That claim was not briefed and is, therefore, deemed abandoned. Sturman v. Socha, 191 Conn. 1, 3 n.2, 463 A.2d 527 (1983).
It should be noted that even in Dessoff s post-trial brief, which is almost entirely devoted to his defense that there was an agreement between himself and Sgueglia, this equitable defense is relegated to his final page of argument and is not captioned separately from his other points of law. It is only after a careful reading in search of his equitable defense that the distinction becomes clear.
Dessoff s third claim of error is that the court later erred in failing to clarify its decision upon his motion. Such a clarification, had it been provided by the court, would have provided us with both a ruling on the equitable defense and a finding as to whether Dessoff did or did not tender the installment as he claims. The plaintiff does not appear to deny that those installments were received, however, and, even if they were, Dessoff s claim cannot succeed for his tender would have been too late to act as an effective bar to the subsequent foreclosure. See text, infra.
It should also be noted that Dessoff testified, at trial, that he knew from the conversation with Sgueglia that at least $500 more than the amount he sent was due to cover Sgueglia’s fees. Consequently, Dessoff knew that he was tendering less than the full amount due.
As to the court’s error in failing to clarify its decision by ruling on Dessoff s equitable defense, our decision as to Dessoff’s first two claims of error renders further discussion of this issue unnecessary.
The mortgage contained the following acceleration provision: “IT IS AGREED that the whole of said principal sum and accrued interest thereon shall become due and payable at the option of the holder hereof without demand or notice in the event of any default in the payment of any installment of interest or principal hereinbefore provided for thirty days after the date the same becomes payable as hereinbefore provided, or in the event