Opinion
No. CV02 190333 S
December 29, 2003
MEMORANDUM OF DECISION
This action is an action to foreclose a judgment lien against the defendant Hendrickson's one-half interest in residential premises located at 1160 Rock Rimmon Road in Stamford, Connecticut (the "Premises"). The remaining half interest in the Premises is owned by defendant Hendrickson's wife. The Premises are occupied by the Hendricksons and their four minor children as the family's principal residence.
The evidence shows that on March 16, 2000 the plaintiff filed an attachment in the amount of $369,792.51 against the Premises in the Stamford land records pursuant to a prejudgment remedy issued by this court. Thereafter, on January 23, 2002, pursuant to a stipulation to which plaintiff and defendant Hendrickson were parties, a judgment entered against defendant Hendrickson in favor of the plaintiff in the total amount, including attorneys fees, of $518,424.64.
On April 25, 2002, the plaintiff recorded a certificate of judgment lien on the Stamford land records against defendant Hendrickson's interest in the Premises. The certificate of judgment lien, although filed within four months of the judgment, provided an incorrect recording information regarding the attachment. On May 21, 2002 the plaintiff recorded a second certificate of judgment lien on the Stamford land records including the correct recording information regarding the attachment. The second certificate of judgment lien recited that it was filed "on property described in exhibit A (attached), and is commonly known as 1160 Rockrimmon Road, Stamford, Connecticut." However, there was no exhibit A attached to the certificate of judgment lien. Both certificates of judgment lien were filed within four months of the entry of judgment.
On May 2, 2000, subsequent to plaintiff's attachment, but prior to either of plaintiff's certificates of judgment liens, the defendant, Morgan Stanley Dean Witter Credit Corporation (Morgan Stanley) recorded a mortgage on the Stamford land records covering the Premises in the amount of $65,000. The Premises are subject to a valid first mortgage in the amount of $505,000 held by EAB Mortgage Company, Inc. which is prior in right to the mortgage of Morgan Stanley and to all encumbrances claimed by the plaintiff.
The plaintiff's judgment is wholly unsatisfied. The plaintiff claims that as of the date of trial, October 30, 2003, it is owned a total of $600,688.50. The plaintiff also requests that the court include in its judgment an award of attorneys fees in the amount of $44,198.12.
Defendant Morgan Stanley denies the priority of the plaintiff's judgment lien over its mortgage. Defendant Hendrickson denies the validity of the judgment lien and contests the amount of attorneys fees requested by plaintiff. In addition, defendant Hendrickson asserts that even if the court finds that plaintiff has a valid judgment lien, it should deny the plaintiff a judgment of foreclosure for several reasons. First, the failure of plaintiff to establish that there is equity in the Premises in excess of the statutory $75,000 homestead exemption. Second, the plaintiff is maintaining proceedings in the State of New York against third parties liable to plaintiff on the underlying debt, and that it would be inequitable to enter a judgment of foreclosure against a family's principal residence until it is determined that the New York proceedings will not result in plaintiff obtaining payment in full of the underlying obligation.
VALIDITY AND PRIORITY OF JUDGMENT LIEN FILED ON APRIL 25, 2002
The requirements of a valid judgment lien are set forth in General Statutes § 52-380a, which provides in relevant part:
(a) A judgment lien, securing the unpaid amount of any money judgment, including interest and costs, may be placed on any real property by recording, in the town clerk's office in the town where the real property lies, a judgment lien certificate, signed by the judgment creditor or his attorney or personal representative, containing: (1) A statement of the names and last-known addresses of the judgment creditor and judgment debtor, the court in which and the date on which the judgment was rendered, and the original amount of the money judgment and the amount due thereon; and (2) a description, which need not be by metes and bounds, of the real property on which a lien is to be placed, and a statement that the lien has been placed on such property.
(b) From the time of the recording of the judgment lien certificate, the money judgment shall be a lien on the judgment debtor's interest in the real property described. If, within four months of judgment, the lien is placed on real property which was previously attached in the action, the lien on that property shall hold from the date of attachment, provided the judgment lien certificate contains a clause referring to and identifying the attachment, substantially in the following form: "This lien is filed within four months after judgment in the action was rendered and relates back to an attachment of real property recorded on (month) (day) (year), at Volume Page ___ of the ___ land records.
Defendant Hendrickson claims that both certificates of judgment lien are defective in that they fail to recite the interests of Hendrickson's wife as co-owner of the Premises. However, Hendrickson does not point out any statutory requirement for a certificate of judgment lien to contain such information nor does his brief provide a reasoned argument as to how the absence of such information in any way affects the validity of the liens.
The April 25, 2002 certificate of judgment lien incorrectly recites that the plaintiff's attachment was recorded in Volume 547, Page 211. In fact the attachment was recorded in Volume 5472, Page 211. Hendrickson argues that this error affects, not only the priority of the lien with respect to intervening lienors, but also the validity of the lien itself.
Hendrickson relies on Mac's Car City, Inc. v. DiLoreto, 238 Conn. 172 (1996). In that case the Supreme Court upheld the decision of the Appellate Court reversing a trial court's judgment allowing foreclosure of a judgment lien. At issue was the priority of the lien. At the commencement of the underlying litigation in 1980, the plaintiff obtained an attachment of certain real estate owned by the defendant. In 1984 the defendant executed a deed transferring the real estate to his wife. Plaintiff obtained a judgment in its favor in 1984, but failed to file a judgment lien on the land records within four months of the entry of judgment. The defendant successfully appealed the judgment and in 1987 the Appellate Court ordered a new trial. In 1990 the plaintiff obtained a judgment against the defendant and filed a certificate of judgment lien on the land records within four months of that judgment. The court strictly construed the requirements of the statute and held that the failure of the plaintiff to file a certificate of judgment lien within four months of the first judgment invalidated lien.
The court reviewed not only General Statute § 52-380a(b), but also § 52-328(b). That statute provides:
(b) No real estate that has been attached may be held subject to the attachment to respond to the judgment obtained in the suit, either against the debtor or any other creditor, unless the judgment creditor places a judgment lien on the real estate within four months after a final judgment.
The court held that the phrase "within four months of judgment" in § 52-380a(b) and the phrase "within four months after a final judgment" in § 52-328 had the same meaning — within four months of a judgment which was appealable, regardless of whether that judgment might ultimately be reversed on appeal. The court concluded that the plaintiff's failure to file a certificate of judgment lien within four months of the entry of the first judgment negated the possibility of the priority of the second judgment relating back to the date of the attachment. The court stated: "Strict construction of the four month filing period for a judgment lien to enforce a prejudgment attachment, is, therefore, appropriate because these statutes provide a creditor with a powerful collection tool." 238 Conn. at 179.
However, the Supreme Court in Mac's Car City, supra, did not hold that the plaintiff's judgment lien was invalid, only that the lien was not entitled to the priority it would have enjoyed had the certificate of judgment lien been filed within four months of the entry of the first judgment. In the decision which the Supreme Court sustained, Mac's Car City, Inc. v. DiLoreto, 39 Conn. App. 518 (1995), the Appellate Court remanded the case for the determination of the validity of the judgment lien, observing "The defendants maintain that at the time of the recording of the certificate of judgment lien, Pelino S. DiLoreto, the judgment debtor, had no interest in the property described in the certificate. Only if that is in fact the case is the judgment lien invalid." 39 Conn. App. at 522.
This court concludes that failure of the April 25, 2002 certificate of judgment lien to accurately recite the volume and page of the land records in which the plaintiff's attachment was recorded, may affect the priority of that lien, but not its validity.
The plaintiff urges that the inaccurate recitation of the volume in which its attachment was recorded is a "scrivener's error" which would not have misled any diligent title searcher. Plaintiff claims that providing a accurate date for the attachment as well as a correct page number satisfies the requirements of General Statutes § 52-380a(b) that a certificate of judgment lien must contain a clause "substantially in the following form . . ." in order for the lien to be accorded priority from the date of the attachment. In support of this proposition, plaintiff relies upon the authority of cases such as Frank Towers Corp. v. Laviana, 140 Conn. 45 (1953), and H.S. Torrington Assoc. v. Lutz Engineering Co., 185 Conn. 549 (1981). In those cases the courts held that errors in documents filed on the land records do not necessarily render the document invalid.
In Frank Towers Corp., supra, the court was required to determine whether a seller had tendered marketable title at a closing. The buyer rejected title because his title search revealed a discrepancy between the contract description showing the southern boundary of a parcel of land to be 467.3 feet in length, a filed map showing the same boundary to 552.5 feet in length and a description in recorded deeds in the seller's chain of title reciting the same boundary to be 252.5 feet in length. In finding that title was marketable the court noted that the difference between the filed map and the deeds appears to be a scrivener's error. The court held that "Despite the two different statements as to the length, in feet, of the southerly boundary, there is no reasonable doubt, in law or in fact, about the location of both ends of that boundary, because they are established beyond question by fixed and recognized monuments referred to in the several conveyances in the chain of title. Nor is there any doubt that the length of that boundary is at least 467.3 feet." 140 Conn. at 51.
In H.S. Torrington Assoc., supra., the court upheld the validity of a subcontractor's mechanics lien. The subcontractor had given a single notice to the owners of the property on which the lien was claimed, rather serving an additional notice of intent to claim the lien contemplated by a separate statute. The court noted the intent of the statute to give one who furnishes materials or services the security of the building and land for the payment of his claim by making such claim a lien on such building and land and found that the subcontractor's single notice was sufficient to satisfy the notice requirements of both statutes. The court held that the "provisions of mechanic's lien law should be liberally construed so as to reasonably and fairly implement its remedial intent." 185 Conn. at 553.
The court does not agree that the recitation of incorrect recording information regarding plaintiff's attachment in the April 25, 2002 certificate of judgment lien should be overlooked and that plaintiff be found in substantial compliance with the requirements of the statutes. In contrast to the liberal standards noted in H.S. Torrington Assoc., supra, for compliance with mechanic's lien requirements statutes permitting attachments have always been strictly construed. Union Trust Co. v. Heggelund, 219 Conn. 620 (1991); Mac's Car City, supra. Accordingly the court finds that the April 25, 2002 certificate of judgment lien, although valid, is not entitled to priority from the date of the March 16, 2000 attachment.
VALIDITY AND PRIORITY OF JUDGMENT LIEN FILED ON MAY 21, 2002.
The validity and the priority of the certificate of judgment lien filed on May 21, 2002 depends upon whether the description of the Premises by address alone is adequate and, if so, whether the failure to attach the "exhibit A" referred to in the certificate defeats that validity. General Statutes § 52-380a(a)(2) requires that a judgment lien certificate contain "a description, which need not be by metes and bounds, of the real property on which a lien is to be placed . . . The testimony of the defendant established that the subject property is a single-family residence situated on a separate parcel of land owned in fee by the defendant and his wife. The court concludes that, with respect to the subject property, a description of the property by street address only is sufficient to satisfy the requirements of the statute. The court also notes that the correct reference to the attachment set by volume and page set forth in the second certificate of judgment lien would lead any title searcher to the attachment which contains a more precise description of the property covered by the lien.
The court concludes that the plaintiff has established the validity of its judgment lien as against defendant Hendrickson, and the priority of that lien, to the extent of $369,792.81 against the claims of Morgan Stanley.
ATTORNEYS FEES
In support of its application for counsel fees the plaintiff submitted an affidavit of services signed by plaintiff's counsel. Attached to the affidavit was a statement supporting the $44,198.12 in fees and costs requested by plaintiff. There are several troubling aspects of the statement. First, it demonstrates that an excessive amount of time was spent in preparing and filing certificates of judgment lien. This expenditure of time is particularly troubling when the result was to produce one judgment lien which failed to properly describe the prior attachment and a second judgment lien raised substantial, yet totally avoidable, issues as to its validity. The court cannot accept that, in a court of equity, it is a defendant's responsibility to pay for the mistakes and inefficiencies of an opponents' counsel. In addition, the statement shows that only a portion of the fees and costs claimed were actually expended pursuing the foreclosure of the judgment lien. Substantial sums were expended in pursuing remedies against other parties in other jurisdictions.
The court finds that defendant, Hendrickson's objection to the plaintiff's claim for attorneys fees and costs is well taken. Plaintiff is directed to submit a revised statement of fees and costs eliminating any fees relating to the preparation and filing of its certificates of judgment lien, to defending such liens, or to pursuing extraneous remedies.
STATUTORY AND EQUITABLE DEFENSES
Defendant Hendrickson asserts that the court should not order foreclosure because of the possibility that his equity in the property may not exceed the statutory homestead exemption of $75,000 set forth in General Statutes 52-352b(t). Plaintiff's evidence established that the property had a fair market value of $975,000 and an assessors valuation of $819,300. Defendant Hendrickson argues that if the value of the property were only $700,000 and if the court determined that the Morgan Stanley mortgage had priority over plaintiff's lien, there would be insufficient equity to provide him with the benefit of the entire statutory exemption. However, this court has determined that the plaintiff's lien is entitled to priority over the Morgan Stanley mortgage to the extent of the prior attachment. Therefore it is clear that, even under the most conservative valuation urged by Hendrickson, there is substantial equity in the property available to satisfy plaintiff's claims.
Hendrickson also asserts that the court should consider his equitable claims before entering a judgment of foreclosure. These claims include, first, the fact that he is occupying the subject premises as sole residence for his wife and four minor children. Second, the plaintiff is pursuing claims in New York State against others who are liable on the underlying debt. These equitable considerations do not constitute a defense to the plaintiff's claims. The court, however, will consider these matters, in connection with other issues which may subsequently arise in this case (e.g. type or foreclosure to be ordered; setting of law days or sale date).
DAVID R. TOBIN, JUDGE.