245 Conn. 744 | Conn. | 1998
Lead Opinion
Opinion
This appeal arises out of an attempt by the substitute plaintiff, Ocwen Federal Bank FSB (plaintiff),
The following facts are not in dispute. On July 21, 1989, the defendant and her husband, Clayton E. Wheat, executed a promissory note in the principal amount of $750,000 to Connecticut National Mortgage Company. (Connecticut Mortgage). As security for the note, the defendant, as the sole owner of residential real estate located at 22-24 Searles Road in Darien, executed a mortgage deed conveying that property to Connecticut Mortgage. On December 21, 1992, Shawmut Mortgage Company, a predecessor in interest to the plaintiff, instituted an action to foreclose upon the defendant’s mortgage based upon nonpayment of the principal and interest due under the note.
On appeal, the defendant claims that because presently she is not employed and is unable to work due
Whether the defendant is an “unemployed person” within the meaning of the mortgage act is a matter of statutory interpretation. Statutory interpretation is a matter of law over which this court’s review is plenary. Charles v. Charles, 243 Conn. 255, 258, 701 A.2d 650 (1997), cert. denied, 523 U.S. 1136, 118 S. Ct. 1838, 140 L. Ed. 2d 1089 (1998). In construing statutes, “[o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative
We begin with the language of the statute. General Statutes § 49-31d provides in part that an “ ‘[unemployed person’ means a person who is unemployed for the purposes of [the unemployment act].” The unemployment act does not contain a definition of the term “unemployed,” nor does it define “unemployment.” Instead, the unemployment act contains an extensive definition of “employment”; see General Statutes § 31-222 (a); and specifies a number of conditions that a previously employed person must satisfy in order to be “eligible” to receive unemployment benefits. See General Statutes § 31-235. The definition of employment contained in the unemployment act begins by stating generally that employment is “[a]ny service . . . performed under any express or implied contract of hire
In addition to referencing the unemployment act for a definition of an “unemployed person,” the mortgage act also provides some indication of who is not to be considered unemployed. General Statutes § 49-3 If (b) provides in relevant part that when the “property which is the subject of a foreclosure action is owned by more than one person ... no homeowner [of the property] shall be deemed an unemployed person . . . unless the aggregate earned income of all the homeowners of the . . . property . . . during the twelve-month period immediately preceding the commencement of the foreclosure action is less than fifty thousand dollars and less than seventy-five per cent of the average aggregate annual earned income during the two years immediately preceding such twelve-month period for all such homeowners . . . .” (Emphasis added.) Similarly, the mortgage act defines an “underemployed person” as “a person 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 [or her] average annual earned income during the two years immediately preceding such twelve-month period.” (Emphasis added.) General Statutes § 49-31d (6).
Although neither the mortgage act nor the unemployment act explicitly defines which persons are to be considered “unemployed,” the preceding provisions indicate that the legislature intended, in enacting both acts, to benefit persons who previously have held a position of employment. In defining what it means to be “underemployed” in § 49-31d (6), and in identifying who is not considered unemployed in § 49-3If (b), the
Similarly, the unemployment act requires that a person have had earned income in order to qualify for unemployment compensation benefits. Under the unemployment act, a potential recipient must satisfy the eligibility requirements contained in § 31-235 in order to qualify for benefits. One of the eligibility requirements is that the person claiming benefits must have been paid wages by an employer who is subject to the provisions of the unemployment act during a certain period of time, identified as the “base period,” prior to claiming benefits. General Statutes § 31-235 (a) (3). By placing this condition upon the right to receive benefits, the legislature has indicated that, in enacting the unemployment act, it intended to aid only persons experiencing temporary employment-related losses of earned income. The language of both the mortgage act and the unemployment act, therefore, provides a strong indication that only persons who previously have been employed are to be considered to be “unemployed” for purposes of the mortgage act.
The legislative policies underlying both acts further support this conclusion. The purpose of the unemployment act is to provide temporary monetary benefits to workers experiencing short-term unemployment or underemployment. See generally Furber v. Administrator, Unemployment Compensation Act, 164 Conn. 446, 324 A.2d 254 (1973). As we have discussed previously, the unemployment act requires that all potential recipients of unemployment compensation benefits satisfy the eligibility requirements of § 31-235 in order to actually receive such benefits. Furthermore, once eligibility has been established, the number of weeks during which benefits may be received is limited. The
Similarly, the legislative history of the mortgage act indicates that it was intended to provide a benefit for workers experiencing a decrease in earned income. The mortgage act was enacted in 1983, at a time when economic conditions were giving rise to extensive job loss, layoffs and cutbacks in employment. Discussions in the state House of Representatives prior to the enactment of the mortgage act evidence that it was designed as a temporary “mortgage moratorium for unemployed workers.” (Emphasis added.) 26 H.R. Proc., Pt. 25,1983 Sess., p. 8973, remarks of Representative R. E. Van Norstrand. Although the legislative history of the mortgage act is not abundant, there is no indication anywhere in its history to suggest that the legislature intended to provide persons other than “unemployed workers” with protection from mortgage foreclosure under the act.
In that regard, it is also significant that, in enacting the mortgage act, the legislature chose to define the category of “unemployed persons” who would be the mortgage act’s beneficiaries by reference to the unemployment act. The decision to identify unemployed persons as “persons unemployed for purposes of [the unemployment act],” indicates that both the mortgage act and the unemployment act were intended to benefit the same class of persons. Therefore, the purposes underlying both the mortgage act and the unemployment act provide a further reason to conclude that only persons who have been employed previously may qualify as “unemployed” under the mortgage act.
Finally, our conclusion is supported by the fact that the mortgage act contains a requirement that the court
In the present case, the defendant is a person who has never been employed. Further, she presently is not experiencing a temporary employment-related decrease in earned income.
The defendant claims that, although her financial problems are not the result of a decrease in earned income, she should nevertheless be allowed to benefit from the mortgage act because: (1) she is experiencing temporary economic difficulties due to increased health
The defendant also argues that General Statutes § 31-228,
For all of the reasons previously discussed, we conclude that the defendant, as an individual who never
The judgment is affirmed.
In this opinion CALLAHAN, C. J., and NORCOTT and PALMER, Js., concurred.
Connecticut National Mortgage Company, the original mortgagee, subsequently became Shawmut Mortgage Company, which initiated the foreclosure action and subsequently assigned the mortgage to Shawmut Bank Connecticut, N.A. Shawmut Bank Connecticut, N.A., subsequently assigned the mortgage to Berkeley Federal Bank and Trust FSB, which then was substituted as the plaintiff. Berkeley Federal Bank and Trust FSB has since changed its name to Ocwen Federal Bank FSB, which has been substituted as the plaintiff.
Clayton E. Wheat, a codefendant in this foreclosure action, is not involved in this appeal.
General Statutes § 49-31d provides in relevant part: “(1) ‘Unemployed person’ means a person who is unemployed for purposes of chapter 567. . . .
“(4) ‘Protection from foreclosure’ means a court-ordered restructuring of a mortgage debt designed to eliminate an arrearage inpayments on such debt and to provide a period not to exceed six months during which foreclosure is stayed. . . .
‘■(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 percent of his average annual earned income during the two years immediately preceding such twelve-month period.”
“(c) The court shall determine the eligibility of such homeowner for protection from foreclosure ....
“(d) In determining the eligibility of a homeowner for protection from foreclosure ... the court . . . 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. . . .
“(f) If the court approves the application for protection from foreclosure and restructures the mortgage debt, the foreclosure action shall be stayed for the restructuring period. . . .”
General Statutes § 49-311' (a) provides in relevant part: “[A] homeowner who is underemployed or unemployed against whom a foreclosure action is brought may make application, together with a financial affidavit ... 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 . . . .”
The record reflects that the defendant had not experienced a decrease in income. Rather, the record demonstrates that the defendant’s income had increased, from approximately $2197 per week at the time that she applied for protection from foreclosure, to approximately $3500 per week in trust income and $387 per week in rental income at the time of hearing.
Because we determine that the defendant does not satisfy the definition of unemployed person under the mortgage act and, therefore, cannot qualify for protection under that act, we need not address whether the trial court improperly denied the defendant protection on the basis of her ineligibility for unemployment benefits.
In fact, the defendant is not experiencing a decrease in income of any kind at all. Her unearned income has actually increased since she applied for protection. See footnote 5 of this opinion.
General Statutes § 31-228 provides in relevantpart: “An eligible individual who is totally unemployed throughout a week . . . shall be paid, with respect to such week, an amount equal to his total unemployment benefit rate for the benefit year during which such week of unemployment occurs. An individual shall be deemed to be totally unemployed throughout a week
Our decision does not address the defendant’s claim that the trial court’s decision violated the constitution of Connecticut by denying her equal protection of the laws on the basis of (1) her gender and (2) her status as a disabled person. The defendant did not raise either claim of error during the trial court proceedings and both claims fail to meet the requirements for exceptions to the general rule that only claims raised below can be argued on appeal. State v. Golding, 213 Conn. 233, 239, 567 A.2d 823 (1989). Under Golding, a defendant can, on appeal, prevail on a constitutional claim of error when the claim was not raised in the trial court only if all of the following conditions are satisfied: “(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate the harmlessness of the alleged constitutional violation beyond a reasonable doubt." Id., 239-40.
The defendant’s claim that she was denied equal protection of the laws on the basis of her gender fails to satisfy the requirements of the first prong of Golding. The defendant has failed to provide an adequate record for review of her claim because the mortgage act is gender-neutral on its face and the defendant has not introduced any evidence demonstrating that the purpose or intent of the mortgage act is to discriminate. See Golab v. New Britain, 205 Conn. 17, 26, 529 A.2d 1297 (1987) (“[a]n equal protection claim based on unequal application of the law . . . must be established by competent evidence . . . showing . . . intentional or purposeful discrimination” [citations omitted; internal quotation marks omitted]).
Similarly, the defendant’s claim that she was denied equal protection of the laws on the basis of her disability also fails to satisfy the first prong of Golding. The record does not contain any evidence demonstrating that the defendant’s disability is the reason for her previous lack of employment. Although the trial court found that, presently, the defendant is incapable of working, it did not determine whether the defendant’s disability was the reason for her previous lack of employment, nor is there any evidence in the record to support such a conclusion. On the contrary, the evidence in
In light of the insufficiency of the record, we decline to review the defendant’s constitutional claims.
Dissenting Opinion
dissenting. The only definition in the Unemployment Compensation Act; General Statutes § 31-222 et seq.; of an unemployed person is found in General Statutes § 31-228. Section 31-228 states that “[a]n individual shall be deemed to be totally unemployed throughout a week if he has performed during that week no services for which remuneration of any nature is payable . . . and has not engaged in any self-employment.” To otherwise define an “unemployed person” as one previously employed would do violence to the purpose of the legislature. Under the majority’s definition, a never-employed spouse of a laid-off worker would not qualify for protection from foreclosure of a house solely in the spouse’s name. I do not believe that the legislature intended such a result.
Accordingly, I respectfully dissent.
