27 Conn. App. 549 | Conn. App. Ct. | 1992
The defendant Julius Rytman appeals from a judgment of foreclosure by sale rendered against him with respect to a certain piece of property located in the town of Voluntown. Rytman claims that the trial court improperly (1) refused to order a sale of a portion of the subject property to satisfy his debt to the plaintiff, (2) prohibited him from presenting evidence concerning the standing of one of the other defendants, a subsequent encumbrancer of the property in question, (3) refused to permit him to present evidence concerning certain paragraphs of the plaintiffs complaint, (4) denied his motion to stay this foreclosure action pending the outcome of other litigation, (5) permitted two other defendants to participate in this matter after both had been defaulted for failure to disclose a defense, and (6) entered a default against him for failure to disclose a defense when in fact he had disclosed defenses. We affirm the judgment of the trial court.
The following facts are pertinent to the disposition of this appeal. Rytman owns a certain 9.98 acre parcel of land in Voluntown on which he operated a poultry farm. In 1988, the town of Voluntown instituted this action to foreclose various tax liens it held against this property dating back to 1984. The plaintiffs complaint named as defendants Rytman and various subsequent encumbrancers of the property, including Connecticut National Bank (CNB) and Colchester Foods, Inc. (CFI). CNB’s lien against Rytman’s property stemmed from a five million dollar blanket mortgage that Rytman had given for property he owned, including the parcel in question. CFI’s lien derived from a lis pendens it had placed on the property in 1987, with respect to a financing statement securing equipment and fixtures, as well as a mortgage and a mortgage modification, both in the original amount of $500,000.
Rytman filed an answer and raised four special defenses to the plaintiffs complaint. All of the other
I
Rytman argues that the trial court improperly denied his motion for foreclosure by sale of only a portion of the property. At trial, Rytman presented evidence that the value of a certain two acre parcel, being a portion of the premises, was approximately $40,000. He also presented a witness who testified that he would bid up to $44,000 for that portion. Rytman claims that because the plaintiff’s lien was approximately $20,000, a sale of this portion would cover not only the outstanding amount due, but also all reasonable costs associated therewith.
The trial court has discretion, under General Statutes § 49-25, to order a sale of a portion of the property. Voluntown v. Rytman, 21 Conn. App. 275, 281, 573 A.2d 336, cert. denied, 215 Conn. 818, 576 A.2d 548 (1990). A trial court does not, however, abuse its discretion by refusing to order a sale of a portion of the property when there are other encumbrancers who have liens on the entire premises. Id. In addition to CFI and CNB, the record indicates that the state of Con
A judgment of strict foreclosure would have given the plaintiff a windfall of approximately $200,000 had none of the other encumbrancers invoked their right of redemption. A judgment of foreclosure by sale of a portion would have involuntarily reduced the security of the subsequent encumbrancers. On the other hand, a judgment of foreclosure by sale of the entire parcel would enable the plaintiff to receive the amount to which it is entitled, and have nearly $200,000 remaining to pay other encumbrancers or Rytman himself. We conclude, therefore, that the trial court did not abuse its discretion when it refused to order a foreclosure by sale of a portion of the property.
II
Rytman’s next two claims are interrelated, and may be addressed together. Rytman claims that the trial
Rytman’s claims are misguided for several reasons. First, the sole questions initially before the trial court in this action were whether Rytman owed the town for previously assessed property taxes, the amount outstanding, and whether that amount due was secured by a lien on the subject property. The town, in an action to foreclose municipal tax liens, is required to allege and prove only that the defendant owned the subject property when the property went onto the tax list, or when the assessment in question was made; that the assessment was duly and properly assessed on the property and became due and payable; that thereafter a lien for the amount of taxes due was filed and recorded in the land records; that the amount due remains outstanding; and that there existed other encumbrances of record. Practice Book § 187.
Finally, Rytman suggests that because the plaintiff pleaded in its complaint the existence of these two liens, he should be allowed to prove their invalidity. Again, the plaintiff misses the point. Practice Book §§ 186 and 187 require that a complaint seeking the foreclosure of a mortgage or tax lien on real estate shall set forth, in addition to the other essentials of the complaint, “[a]ll encumbrances of record upon the property both prior and subsequent to the encumbrance sought to be foreclosed, the dates of such encumbrances, the amount of each and the date when such encumbrance was recorded . . . .” Those sections require the plaintiff
We conclude that the trial court correctly refused to permit Rytman to litigate the validity of subsequent encumbrances in this proceeding.
Ill
Rytman next claims that the trial court improperly refused to stay this foreclosure action pending the outcome of a separate action brought by Rytman against CNB. That action concerned the $5,000,000 note underlying CNB’s junior encumbrance. “ ‘In the absence of
IV
Rytman also claims that the trial court improperly permitted CNB and CFI to participate in the proceedings after they had been defaulted for failure to disclose a defense. “A default admits the material facts that constitute a cause of action . . . and ‘entry of default, when appropriately made, conclusively determines the liability of a defendant.’ Ratner v. Willametz, 9 Conn. App. 565, 579, 520 A.2d 621 (1987).” (Citations omitted.) Skyler Limited Partnership v. S.P. Douthett & Co., 18 Conn. App. 245, 253, 557 A.2d 927 (1989). Neither CFI nor CNB participated in the portion of the proceedings wherein the plaintiff established Rytman’s liability. Once the plaintiff established Rytman’s liability, the court was required to determine whether the foreclosure was to be strict or by sale, and, just as in civil cases where defaulted parties are entitled to participate in a hearing on the issue of damages, defaulted parties in foreclosure proceedings are permitted to participate in the determination of the type of foreclosure judgment to be rendered. CFI and CNB, therefore, were entitled to participate in any proceedings concerning the type of foreclosure judgment to be
V
Rytman’s final claim is that the trial court, in its notice of entry of judgment, improperly indicated that all appearing defendants had been defaulted for failure to disclose a defense. We agree that this indication is inaccurate because in fact Rytman presented four special defenses and a trial was held in which those defenses were considered. The trial court, however, sent to all parties a corrected notice of entry of judgment in which it is clearly stated that Rytman was not defaulted for failure to disclose a defense. Rytman’s claim, therefore, has no merit.
The judgment is affirmed.
In this opinion the other judges concurred.
Practice Book § 187 provides: “In any action to foreclose a municipal tax or assessment lien the plaintiff need only allege and prove: (1) The ownership of the liened premises on the date when the same went into the
General Statutes § 49-27 provides in pertinent part: “The proceeds of each such sale shall be brought into court, there to be applied if the sale is ratified, in accordance with the provisions of a supplemental judgment then to be rendered in the cause, specifying the parties who are entitled to the same and the amount to which each is entitled. ...”