34 Conn. App. 204 | Conn. App. Ct. | 1994
This is an appeal by the foreclosing plaintiff, Farmers and Mechanics Savings Bank, from the denial of its motion for a deficiency judgment. The plaintiff claims that the trial court was required to determine the market value of the subject property and to find a resulting deficiency where there was no evidence of a value in excess of the debt and the undisputed evidence showed a value far less than the debt. The defendants deny that there was such undisputed evidence and claim that General Statutes § 49-14 does not place an affirmative duty on the trial court to determine the fair market value of real property in a deficiency judgment proceeding when the court determines that the parties presented no credible evidence to establish that value.
We affirm the judgment of the trial court. Our review of the record and the transcript of the hearing shows that there was no evidence presented as to the value of the subject property as of the date title vested in the plaintiff. Although this point was not raised by the parties, it was addressed in the trial court’s order denying the motion for a deficiency judgment and it is dispositive of this appeal.
The following facts are relevant to our review. On December 6, 1988, the defendants, Durham Realty, Inc., and Norbert Pomeranz, executed a promissory note in the principal sum of $2,070,000 payable to the
Neither defendant redeemed and, consequently, the title to the property vested absolutely in the plaintiff on July 31,1992. On August 25,1992, the plaintiff filed a motion for a deficiency judgment, pursuant to General Statutes § 49-14 (a).
“The rule of law in Connecticut since 1833, when Connecticut first enacted a deficiency judgment statute, is that the value of the property foreclosed shall be the actual value thereof as of the date when title vested in the plaintiff under the foreclosure decree.” City Savings Bank of Bridgeport v. Miko, 1 Conn. App. 30, 33, 467 A.2d 929 (1983); see also Di Diego v. Zarro, 19 Conn. App. 291, 294, 562 A.2d 555 (1989). “The
In its order denying the plaintiffs motion for a deficiency judgment, the trial court stated that the plaintiff had failed to establish the fair market value of the property as of the date title vested in the plaintiff. In its articulation, the trial court again referred to the plaintiffs failure to establish the value of the property as of the date of transfer of title to it.
Even if we were to conclude from reading the trial court’s articulation that the court based its decision to deny the plaintiff's motion for a deficiency judgment solely on the lack of credible evidence, we are “authorized to rely upon alternative grounds supported by the record to sustain a judgment. . . .” (Citations omitted; internal quotation marks omitted.) Kelley v. Bonney, 221 Conn. 549, 592, 606 A.2d 693 (1992); Latimer v. Administrator, 216 Conn. 237, 252, 579 A.2d 497 (1990); In re Jennifer G., 29 Conn. App. 689, 693, 617 A.2d 921 (1992).
Because we affirm the judgment of the trial court on the ground that the plaintiff failed to prove value as of the date title vested, we need not reach the issues involving the credibility of the expert witnesses who
The judgment is affirmed.
In this opinion the other judges concurred.
General Statutes § 49-14 (a) provides: “At any time within thirty days after the time limited for redemption has expired, any party to a mortgage foreclosure may file a motion seeking a deficiency judgment. Such motion shall be placed on the short calendar for an evidentiary hearing. Such hearing shall be held not less than fifteen days following the filing of the motion, except as the court may otherwise order. At such hearing the court shall hear the evidence, establish a valuation for the mortgaged property and shall render judgment for the plaintiff for the difference, if any, between such valuation and the plaintiffs claim. The plaintiff in any further action upon the debt, note or obligation, shall recover only the amount of such judgment.”
The trial court stated: “The court articulates its order of September 15, 1992, only to the limited extent of unequivocally expounding the bases for its conclusion that the movant had failed to satisfy its burden of proof of establishing by a fair preponderance of the evidence the reasonable market value of the premises as of the date of transfer of title to it. . . . The appraisal testimony offered to the court on behalf of the plaintiff was of no value to the court in ascertaining market value. He was unable to explain the bases for the use of various components that allegedly went into the computation of his opinion as to value. . . . Further, the testimony offered by the witness produced on behalf of the defendant was neither credible enough nor relevant enough for the court to place any reliance thereon in utilizing it to ascertain the fair market value at the appropriate time.” (Emphasis added.)
At the hearing on the motion for a deficiency judgment, the plaintiff’s counsel unsuccessfully offered as evidence the appraisal report that was submitted with the motion for strict foreclosure. The trial court sustained an objection to that report. At the conclusion of the appraiser’s direct examination, the plaintiff’s counsel, referring to the appraisal report, asked, “is your testimony based on this exhibit?” The witness answered, “Yes.” “It is irrelevant to the determination of a deficiency under [General Statutes] § 49-14 that the court had placed a prior value on the premises for purposes of the earlier foreclosure proceeding.” Di Diego v. Zarro, 19 Conn. App. 291, 295, 562 A.2d 555 (1989).
See footnote 2.