244 Conn. 251 | Conn. | 1998
Opinion
The issue in this appeal is whether General Statutes §§ 49-15 and 49-1
Soon thereafter, the bank discovered its mistake in the course of federal bankruptcy proceedings initiated
Returning to Superior Court, the bank moved to open the judgment of strict foreclosure. Despite the defendants’ objection, the court, R. Walsh, J., granted the motion and permitted the bank to file an amended complaint requesting new law days for the omitted third parcel. On May 15, 1995, the trial court, Pickett, J., granted the bank’s motion to render “judgment of strict foreclosure upon the amended complaint containing all other terms previously entered . . . .”
Before the law day on the third parcel had passed, the defendants appealed to the Appellate Court, which
The bank filed a petition for certification to appeal to this court. We granted certification to consider only the following question: “Did the Appellate Court properly conclude that the trial court lacked jurisdiction to open the judgment of foreclosure based on General Statutes §§ 49-15 and 49-1?” New Milford Savings Bank v. Jajer, 241 Conn. 906, 695 A.2d 540 (1997).
I
We consider, first, the defendants’ claim that § 49-15 deprived the trial court of jurisdiction to grant the bank’s motions to open the judgment of foreclosure
A
The law governing strict foreclosure lies at the crossroads between the equitable remedies provided by the judiciary and the statutory remedies provided by the legislature.
The equitable nature of foreclosure proceedings persuades us that § 49-15 does not preclude the trial court from exercising its discretion to open the judgment of strict foreclosure in the circumstances of this case. To apply the statutory mandate that, “after title [to real estate] has become absolute in any encumbrancer,” a judgment of foreclosure cannot be opened, we must identify the property for which “title has become absolute.” The statute describes the relevant property as the “real estate” that was the subject of the initial foreclosure judgment. On its face, the statute makes no distinction between partial and total foreclosures. Whether the statute bars the bank’s motion to open and amend the initial strict foreclosure judgment depends, therefore, on whether the terms of the 1994 foreclosure vested title in the bank to two or to three parcels of land. The trial court has the authority to determine the scope of the initial foreclosure judgment, and, therefore, whether the foreclosure judgment properly may be opened under § 49-15.
Before exercising its discretion to open the initial foreclosure to permit the bank to amend its complaint, the trial court properly held a hearing to assist it in
The legal effect of the bank’s inadvertent omission was that the title to the third parcel remained under a cloud. As would be true for any mortgaged property in Connecticut before foreclosure, the bank’s title was a fee simple subject to defeasance by the defendants’ exercise of their equity of redemption. State v. Stonybrook, Inc., 149 Conn. 492, 496, 181 A.2d 601, cert. denied, 371 U.S. 185, 83 S. Ct. 265, 9 L. Ed. 2d 227 (1962). Thus, the bank’s title to the third parcel was not absolute. Because no one had absolute title to the third parcel at the time of the bank’s motion to open and to amend, § 49-15 did not limit the jurisdiction of the trial court to exercise its equitable discretion and modify the scope of the 1994 foreclosure judgment with respect to the third parcel.
Moreover, as best we can determine, the legislature’s purpose in enacting § 49-15 was not to preclude amendment to correct scrivener’s errors, but rather to set out an orderly framework for a mortgagee’s exercise of the equity of redemption.
Although the foregoing legislative remarks focus on the protection of the mortgagor’s equity of redemption
Neither the text of § 49-15 nor the purpose that it was intended to serve requires us to construe the statute so broadly that it would preclude trial courts from exercising their equitable discretion to correct inadvertent omissions in mortgage foreclosure proceedings. The defendants have not alleged that the bank’s error caused them, in any way, to change their position to their detriment. The defendants were aware that a mortgage deed “remain[ed] unreleased on the land records . . . .” New Milford Savings Bank v. Jajer, supra, 44 Conn. App. 596. In these circumstances, if the defendants were to prevail on this issue, they would receive an unexpected and unjust windfall. Thus, as a matter of statutory construction, we conclude that § 49-15 does not deprive the trial court of jurisdiction to open a judgment of foreclosure to correct an inadvertent omission in a foreclosure complaint.
B
As support for its construction of § 49-15, the Appellate Court also relied on the proposition that “a mortgage cannot be foreclosed piecemeal . . . .” New Milford Savings Bank v. Jajer, supra, 44 Conn. App.
Our decision to permit partial foreclosures to be opened in appropriate circumstances is supported by
Furthermore, our conclusion is consistent with the law governing marshalling. Marshalling, an equitable principle, requires a mortgagee, in the case of a mortgage secured by several parcels of real estate, to foreclose first on those parcels that do not secure junior encumbrances.
Accordingly, we conclude that the Appellate Court improperly determined that § 49-15 deprived the trial court of jurisdiction, in the circumstances of this case, to open the judgment of foreclosure.
II
The Appellate Court further concluded that, even if the bank’s original foreclosure judgment in 1994 did not include the third parcel, the mortgage on that parcel had become unenforceable because of the bank’s failure to enforce its right to a deficiency judgment against the defendants. General Statutes § 49-14.
The defendants argue that, under § 49-1, foreclosure of a mortgage bars both in rem and in personam actions on a mortgage debt. They assert that the language of § 49-1 precludes further action of both types against any person liable for such payment over whom the court could assert in personam jurisdiction. We reject this construction of the statute.
We begin our analysis of § 49-1 by observing that, textually, the section does not address a foreclosing mortgagee’s right to enforce its interest in property that remains subject to an unreleased mortgage on the land records and that was not the subject of any previous foreclosure. Section 49-1 makes a mortgage foreclosure “a bar to any further action upon the mortgage debt, note or obligation against the person or persons who are liable for the payment thereof who are made parties to the foreclosure . . . .” (Emphasis added.)
This text poses a serious problem for the defendants. The statute addresses the mortgagee’s right to pursue personal remedies against the mortgagors with respect to their personal obligations on the underlying instrument of debt.
As a general proposition, it is established law that the mortgage bears a close relationship to the underlying debt. The mortgage secures the debt. New England Savings Bank v. Bedford Realty Corp., 238 Conn. 745, 759, 680 A.2d 301 (1996); Restatement (Third), supra, § 1.1, p. 8. The mortgage follows the debt, in the sense that the assignment of the note evidencing the debt automatically carries with it the assignment of the mortgage. Waterbury Trust Co. v. Weisman, 94 Conn. 210, 218-19, 108 A. 550 (1919); Restatement (Third), supra, § 5.4, p. 380. The mortgage cannot survive the extinction of the debt. Hartford National Bank & Trust Co. v. Kotkin, 185 Conn. 579, 581, 441 A.2d 593 (1981).
It is also established law, however, that, upon the default of the mortgagor, the mortgagee has multiple remedies against both the mortgagor and the mortgaged property. “[T]he plaintiff is entitled to pursue its remedy at law on the notes, or to pursue its remedy in equity upon the mortgage, or to pursue both. A note and a mortgage given to secure it are separate instruments, executed for different purposes and, in this State, action for foreclosure of the mortgage and upon the note are regarded and treated, in practice, as separate and distinct causes of action, although both may be pursued in
We are not persuaded that the legislature intended § 49-1, by barring further action “against the person or persons who are liable for the payment thereof,” to extinguish the defendants’ personal liability as well as their mortgage debt.
The judgment of the Appellate Court is reversed and the case is remanded to that court for its consideration of the remaining issues raised by the defendants’ appeal.
In this opinion the other justices concurred.
General Statutes § 49-15 provides: “Any judgment foreclosing the title to real estate by strict foreclosure may, at the discretion of the court rendering the same, upon the written motion of any person having an interest therein, and for cause shown, be opened and modified, notwithstanding the limitation imposed by section 52-212a, upon such terms as to costs as the court deems reasonable; but no such judgment shall be opened after the title has become absolute in any encumbrancer.”
General Statutes § 49-1 provides: “The foreclosure of a mortgage is a bar to any further action upon the mortgage debt, note or obligation against the person or persons who are liable for the payment thereof who are made parties to the foreclosure and also against any person or persons upon whom service of process to constitute an action in personam could have
The complaint named as defendants, in addition to Maurice and Maria Jajer, Sears, Roebuck & Co., the Waterbuiy Telephone Employees Federal Credit Union and the state department of revenue services, each of which had subordinate liens against the property. Those defendants, however, are not parties to the appeal. References to the defendants are to Maurice and Maria Jajer.
The defendants conceded that the bank’s mistake was inadvertent. The bank’s inadvertence is shown, in part, by the fact that the foreclosure proceedings included an appraiser’s recertification of value that covered all three parcels.
The defendants appealed from the order of the Bankruptcy Court to the United States District Court for the District of Connecticut, in Hartford. To our knowledge, that case, Jajer v. New Milford, Docket No. 3:95CV592 CFD, was still pending as of the date of this opinion.
In its formal order modifying the stay, the Bankruptcy Court referred to its memorandum of decision but described its order somewhat differently. The order stated that “the stay afforded by 11 U.S.C. § 362, be, and hereby is, modified to permit the movant to proceed in state court to prosecute a supplemental action concerning a mortgage dated March 19, 1987, on property located at Merryall Road, New Milford, Connecticut.”
Because the 1995 foreclosure judgment incorporated “other terms previously entered,” the judgment includes no terms concerning the amount of the mortgage debt. In their motion to open the judgment, the defendants did not raise any question about the court’s failure to consider whether and in what amount the earlier foreclosure affected the calculation of the
See footnote 1 of this opinion.
See footnote 1 of this opinion.
In light of the limited question that we certified for appeal, we decline to consider the merits of the defendants’ allegations that, because of the inability of their trial counsel to appear at scheduled hearings, they were unfairly hampered in the presentation of their objections to the opening of the original foreclosure judgment.
The Appellate Court noted that the defendants’ appeals had raised other issues that the court did not address.
Both by common-law rule and by statute, a mortgagee in Connecticut is deemed to have taken legal title under the execution of a mortgage on real property. Conference Center, Ltd. v. TRC, 189 Conn. 212, 218, 455 A.2d 857 (1983); State v. Stonybrook, Inc., 149 Conn. 492, 496, 181 A.2d 601, cert. denied, 371 U.S. 185, 83 S. Ct. 265, 9 L. Ed. 2d 227 (1962). Nonetheless, the mortgagee’s legal title is a defeasible fee “subject to [an equitable] right of redemption which persists until it is extinguished by an action of foreclosure.” State v. Stonybrook, Inc., supra, 496. Even after the initiation of a foreclosure action, the mortgagee’s title does not become absolute until all eligible parties have failed to exercise their rights to redeem the property. City Lumber Co. of Bridgeport, Inc. v. Murphy, 120 Conn. 16, 19, 179 A. 339 (1935).
The Appellate Court relied upon several Connecticut cases in concluding that a judgment of foreclosure cannot be opened, in any circumstances, after title has become absolute in the encumbrancer. We conclude, however, that the cases from this court are distinguishable, because they deal with extinguishment of the mortgagor's right of redemption after passage of the law day. See Varanelli v. Luddy, 130 Conn. 74, 77, 32 A.2d 61 (1943); Crane
In one case from the Appellate Court; Burritt Interfinancial Bancorporation v. Wood, 33 Conn. App. 401, 408, 635 A.2d 879 (1994); that court applied § 49-15 to preclude a plaintiff bank from opening a judgment of strict foreclosure. In that situation, however, the bank had learned of the defendant’s bankruptcy before the defendant’s law day had run and had failed to move to open the judgment to stop the law day from running. The facts of that case are far removed from the unintentional omission in this situation.
The statute that became § 49-15 initially was enacted in 1923; Public Acts 1923, c. 145; and was revised in the General Statutes enacted in 1930; General Statutes (1930 Rev.) § 5084; and 1949. General Statutes (1949 Rev.) § 7196.
Our decision in this case is limited to foreclosures involving an original mortgagor and mortgagee, and does not address the possible rights of third parties. See Stein v. Hillebrand, 240 Conn. 35, 44-47, 688 A.2d 1317 (1997) C'[T]he plaintiff, having knowingly acquiesced to the terms of the mortgage, is not merely a third party to that mortgage.”).
The cases to the contrary, on which the Appellate Court relied; Matter of Silverman, 10 B.R. 734, 736 (S.D.N.Y. 1981), aff'd, 37 B.R. 200 (S.D.N.Y. 1982); Bankers Trust Co. v. G. H. Equities, Inc., 57 App. Div. 2d 601, 602, 394 N.Y.S.2d 30 (1977); Bodner v. Brickner, 29 App. Div. 2d 441, 446, 288 N.Y.S.2d 342 (1968); Dooly v. Eastman, 28 Wash. 564, 576, 68 P. 1039 (1902); all involve the rights of a mortgagee after the mortgagee intentionally elected not to foreclose on one of several parcels securing the mortgage.
“Waiver is the intentional relinquishment of a known right.” (Internal quotation marks omitted.) Majernicek v. Hartford, Casualty Ins. Co., 240 Conn. 86, 96, 688 A.2d 1330 (1997); Wadia Enterprises, Inc. v. Hirschfeld, 224 Conn. 240, 251-52, 618 A.2d 506 (1992). It is also a question of fact. Majernicek v. Hartford Casualty Ins. Co., supra, 96. Because the bank’s omission of the third parcel from its original foreclosure complaint was
We do not address the problems that the bank might have faced if, instead of petitioning for an opening of the mortgage foreclosure, it had filed a separate cause of action to foreclose on the omitted third parcel. Possibly, such an action might have raised questions about the applicability of the law of claim preclusion or of issue preclusion. See, e.g., Connecticut Natural Gas Corp. v. Miller, 239 Conn. 313, 322-23, 684 A.2d 1173 (1996); Delahunty v. Massachusetts Mutual Life Ins. Co., 236 Conn. 582, 589, 674 A.2d 1290 (1996); Scalzo v. Danbury, 224 Conn. 124, 127, 617 A.2d 440 (1992); Duhaime v. American Reserve Life Ins. Co., 200 Conn. 360, 364, 511 A.2d 333 (1986).
Caron writes: “Were the court to permit an equitable apportionment of the plaintiffs debt as part of a decree of strict foreclosure, each parcel could be redeemed, by either the owner or a subsequent encumbrancer, by payment of that portion of the debt apportioned to the parcel at issue. In essence, the blanket mortgage is treated as though it were a number of smaller mortgages on the separate parcels, and the foreclosure of each such smaller mortgage proceeds independently from others.” D. Caron, Connecticut Foreclosures: An Attorney’s Manual of Practice and Procedure (3d Ed. 1997) § 16.01A, p. 429.
The procedural posture of this case is different from the situation described by Caron because the bank here, rather than seeking equitable apportionment, chose to foreclose the blanket mortgage in its entirety, albeit inadvertently omitting the description of one of the parcels securing the mortgage. It is, thus, the bank’s attempt to open the foreclosure judgment that has become the subject of this appeal. Caron’s description of equitable
Section 8.6 of the Restatement (Third) of Property, Mortgages, provides: “[W]hen foreclosing a mortgage covering more than one parcel of real estate, upon the motion or application of the holder of a subordinate interest protected by this section, the mortgagee must proceed against the parcels in the following order:
“(1) parcels on which no subordinate interests exist are foreclosed upon before parcels on which subordinate interests exist; and
“(2) as among parcels on which subordinate interests exist, those with subordinate interests created more recently are foreclosed upon before those with subordinate interests created at a more remote time.” (Emphasis added.)
The three creditors having junior encumbrances on the mortgaged property in this case — Sears, Roebuck & Co., Waterbury Telephone Employees Federal Credit Union, and the state department of revenue services— received notice of the foreclosure on parcels one and two. On May 12,1995, the trial court, entered a default for failure to appear against Sears, Roebuck & Co. On that same day, the trial court rendered a judgment of default for failure to plead against Waterbury Telephone Employees Federal Credit Union and the state department of revenue services. Although the state appeared, it disclaimed its interest under its lien on May 12, 1995.
Another equitable principle in the strict foreclosure context points toward a similar conclusion. If “all the property covered by a mortgage has been sold in parcels to different purchasers at different times, upon foreclosure of the mortgage the parcels are liable in inverse order of alienation.” New England Mortgage Realty Co. v. Rossini, 121 Conn. 214, 216,
Even if the liens of the junior creditors had been limited to the third parcel, they chose not to assert their lien rights at any time during these proceedings.
General Statutes § 49-14 provides in relevant part: “(a) 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 legislative history of the 1957 amendment to the statute, Public Acts 1957, No. 443, reinforces our conclusion that the purpose of § 49-1 is to bar only further personal liability on a mortgage note following foreclosure of the mortgage. Speaking in support of Senate Bill No. 834, which added the language limiting the application of § 49-1 to individuals subject to service of process in this state, Senator John Filer stated: “[A] foreclosure of a mortgage bars further action on the note unless the person is liable for payment or made party to the foreclosure. We now add that the bar exists only if service of process could have been made on such persons in this State.” (Emphasis added.) 7 S. Proc., Pt. 3, 1957 Sess., p. 1842, remarks of Senator Filer. In the General Law Committee, as well, Robert Hildengay, testifying in favor of Senate Bill No. 834, described it as a limitation on personal liability following foreclosure. Prefacing his remarks, he stated: “Mortgagees, under our law, have alternative rights. They may bring action
The parties dispute the meaning of Swift v. Edson, 5 Conn. 532 (1825), an early case from this court. The bank asserts that Swift stands for the proposition that as long as a valid mortgage exists, the underlying debt is not extinguished and thus can be pursued in a second foreclosure. The defendants attempt to distinguish Swift, arguing that that case involved a second mortgagee who had not been named as aparty in the first proceeding. Because, however, at the time of Sv;ift, neither § 49-1 nor § 49-15 had been enacted, that case does not inform our decision in this case.
The bank concedes in its brief that it can no longer recover from the defendants personally. All that is at issue in this appeal is whether the bank may foreclose on the third parcel.
Because the bank’s inadvertent omission of the third parcel from its foreclosure complaint did not extinguish the underlying debt, the mortgage on the third parcel retains continued vitality. Accordingly, we do not address
The text of § 49-14 (a), dealing with deficiency judgments, is set out in footnote 22 of this opinion. In a strict foreclosure action, the purpose of the hearing provided in § 49-14 (a) is to determine the fair market value of the property. New England Savings Bank v. Lopez, 227 Conn. 270, 278, 630 A.2d 1010 (1993); Fairfield Plumbing & Heating Supply Corp. v. Kosa, 220 Conn. 643, 646 n. 8, 600 A.2d 1 (1991). “This section applies only to deficiency judgments in strict foreclosure actions.” Id.