32 Conn. App. 309 | Conn. App. Ct. | 1993
The defendants Richard A. Kushman, Kathleen Kushman, Eugene C. Cushman, and Sylvia A. Cushman (Kushmans) appeal from a deficiency judgment rendered in favor of the plaintiffs, Henry Vig-not and Marjorie Vignot.
In July, 1991, the Bank of Mystic obtained a judgment of strict foreclosure on the Kushmans’ property.
The plaintiffs filed a motion for a deficiency judgment on March 17,1992, requesting an evidentiary hearing to determine the value of the property and a deficiency judgment. Pursuant to Practice Book §§ 121 and 122, this motion was served on the attorney who represented all four Kushmans throughout the entire foreclosure action. The plaintiffs specifically mentioned only the defendant Richard A. Kushman in their recitation
On April 1,1992, the defendant Richard A. Kushman filed a motion to dismiss the plaintiffs’ motion for deficiency judgment on the ground that the judgment of foreclosure against him was moot. The trial court denied the defendant’s motion on May 5, 1992. On May 21,1992, the defendant Richard A. Kushman then filed a special defense to the plaintiffs’ motion for deficiency judgment, claiming that the statutory time limit for a deficiency judgment had expired.
On June 22,1992, the trial court began the deficiency hearing. The court heard testimony from the plaintiffs’ appraiser, as well as argument regarding the value of the real property. The court then granted the motion for a deficiency judgment against Richard A. Kushman, Kathleen Kushman, Eugene C. Cushman, and Sylvia A. Cushman. On June 25, 1992, the trial court heard further argument on whether any or all of the Kush-mans were proper defendants at the deficiency hearing. The court found that all four Kushmans were liable for the deficiency. The court also heard argument on the exact amount of the deficiency and then ordered that counsel for the Kushmans and counsel for the plaintiffs prepare and agree to a proposed judgment for the court’s approval. Finally, on August 31, 1992, the court found a deficiency in the amount of $33,345.58. All four Kushmans appealed from the trial court judgment granting a deficiency against them.
I
The Kushmans’ claim, at the outset, that they are not liable for a deficiency in this foreclosure action because their equity of redemption and interest in the
This court has held that “[o]nce title has passed in a strict foreclosure . . . a final judgment has occurred that cannot be opened.” (Citations omitted.) Bank of Stamford v. Alaimo, 31 Conn. App. 1, 8, 622 A.2d 1057 (1993). We have observed that “ ‘the procedure used to obtain a deficiency judgment [in a foreclosure action] is also part of the main action.’ ” Id., quoting People's Bank v. Bilmor Building Corporation, 28 Conn. App. 809, 822, 614 A.2d 456 (1992). The defendant in the subsequent deficiency proceeding, however, cannot assert defenses properly addressed to the actual judgment of foreclosure. “Any claims by the defendant that were made or could have been made in the foreclosure proceeding cannot be relitigated at the deficiency hearing.” Bank of Stamford v. Alaimo, supra, 9. This view is reinforced by the limited nature of the deficiency hearing. Our Supreme Court has held that “[i]n the hearing contemplated under § 49-14 to obtain a deficiency judgment, the court, after hearing the party’s appraisers, determines the value of the property and determines any deficiency. This deficiency judgment procedure presumes the amount of the debt as established by the foreclosure judgment and merely provides for a hearing on the value of the property.” First Bank v. Simpson, 199 Conn. 369, 373, 507 A.2d 997 (1986); see also Bank of Stamford v. Alaimo, supra, 7.
In light of these principles, the Kushmans cannot now prevent the plaintiffs from obtaining a deficiency judgment pursuant to the plaintiffs’ judgment of strict foreclosure. The Kushmans did not challenge the validity of the strict foreclosure proceeding, as they neither pleaded nor presented a defense. The Bank of Mystic appeared and stated that it had no defense. As a result,
The Kushmans failed to object to their status as defendants in the foreclosure proceeding, and, as a result, were barred from raising that claim at the deficiency hearing. The failure of the Kushmans to raise that claim in the course of the foreclosure proceeding goes to the heart of the problem that we addressed in Bank of Stamford v. Alaimo, supra. If the Kushmans were allowed to raise the claim at the deficiency hearing that they are not proper defendants, the vesting of title that had occurred in the foreclosure judgment would not be final. Such a result clearly would prejudice the plaintiffs. At the deficiency hearing, the plaintiffs already had title to the property due to the final judgment rendered in the foreclosure proceeding. The plaintiffs should not then be forced to defend the judgment of foreclosure at the deficiency hearing. While the hearing is a part of the foreclosure action, it is intended to decide only the limited issue of the defendants’ liability beyond the amount secured by the property. We conclude that, because the Kushmans failed to raise their defense in the course of the foreclosure proceeding, the deficiency judgment is valid.
II
The Kushmans contend that, if the plaintiffs have the right to a deficiency judgment, the judgment is valid only against Richard A. Kushman, since he is the only
In their complaint, the plaintiffs named all four Kush-mans in the count seeking a deficiency judgment. After strict foreclosure was granted against all four Kush-mans and the Bank of Mystic, the plaintiffs filed a motion for a deficiency judgment, requesting that a date be assigned for an evidentiary hearing to determine the value of the real estate and any resulting deficiency. Pursuant to Practice Book § 528, the plaintiffs’ motion included a recitation of the facts that formed the background for the motion for deficiency judgment.
It follows from the general relationship between foreclosure proceedings and deficiency hearings, from the plaintiffs’ compliance with pertinent statutes and rules of practice, and from the plaintiffs’ consistency in pursuit of a deficiency from the Kushmans throughout the foreclosure action, that the plaintiffs presented their motion for deficiency judgment against all four Kush-mans. We conclude, therefore, that the trial court properly determined that all four Kushmans were liable for the deficiency judgment.
The judgment is affirmed.
In this opinion the other judges concurred.
The plaintiffs also named the Bank of Mystic as a defendant in this action. References to the defendants hereinafter include both the Bank of Mystic and the four Kushmans. The Bank of Mystic, however, has not appealed.
The defendants also raised the following issue. If, under General Statutes § 49-1, a second mortgagee strictly forecloses the property of the
Because we conclude that the Kushmans failed to raise at an appropriate time the claim that they were not proper defendants in the foreclosure action, we do not decide their status in the foreclosure proceeding or in the assignment of law days.
While the facts regarding the Bank of Mystic foreclosure are relevant to the Kushmans’ claim that they could not be the subject of a second foreclosure proceeding by the plaintiffs, as noted, we do not reach the merits of that claim.
Practice Book § 528 provides: “Whenever a deficiency judgment is claimed in a foreclosure action, the party claiming such judgment shall file with the clerk of the court within the time limited by statute a written motion setting forth the facts relied on as the basis for the judgment, which 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.
“Upon the motion of any party and for good cause shown, the court may refer such motion to a state referee for hearing and judgment.”