Opinion
No. CV06 500 55 91 S
June 24, 2008
MEMORANDUM OF DECISION
The sole issue which this court will reconsider is whether or not the plaintiff had the authority to reject tender of the monthly common charges for a condominium after a foreclosure action has been instituted for non-payment of prior common charges. In conjunction with that claim is whether or not late fees and interest may be charged for the rejected monthly payments, which the parties agreed amounted to $4,000.00.
Following institution of the foreclosure proceedings against the defendant in December of 2006, the defendant proceeded to submit the monthly common charges of $743.00 to the plaintiff's attorney which, in turn, were returned via the plaintiff's attorney.
It was and is the position of the plaintiff that the mortgage procedure foreclosing for unpaid common charges is the same as a mortgage foreclosure for real property. As such, the plaintiff is correct. Pursuant to the Federal Deposit Insurance Corporation v. Napert-Boyer Partnership, 40 Conn.App. 434, 443-44 (1996) once the note has been accelerated and demand for payment has been made installments are longer due and late charges may not be collected. In Christen v. Cutaia, 211 Conn. 613 (1989), a plaintiff foreclosed on a series of promissory notes and following default, the defendant proceeded to tender the payment of subsequent promissory notes. As in this case, the defendant contended that because he continued to make tenders of payments the trial court erred in awarding interest on those sums after the date of their tender. The Supreme Court concluded that the defendant's argument ran contrary to both the terms of the contract and the applicable principles of commercial law. The balance of all the notes became due and payable upon default and the plaintiff was not required to accept subsequent payments.
The fallacy of the plaintiff's position is while the litigation is similar to a real estate foreclosure proceeding, it is not an attempt to accept a fully liquid amount due and owing which is triggered by a default in the terms and conditions of the obligation. In the opinion of this court a foreclosure for condominium charges is somewhat of a hybrid between a real estate mortgage foreclosure and a summary process in that the monthly common charges are similar to a community rental charge to maintain operation of the condominium.
While the plaintiff was in error in assuming it could arbitrarily reject tender of the monthly common charges, the defendant was in error in arbitrarily assuming he could just simply submit the checks without any judicially sanctioned procedure for doing so. In a summary process, a request is made to the court for payments of "use and occupancy" charges allowing the summary process to proceed and allowing the landlord to receive income. This process should have been sought by the defendant though advice of the court and may well have been granted pursuant to an opinion rendered by Judge Stevens in the case of Far Mill River Condominium Assoc., Inc. v. Clarke, 2002 WL 1903002.
As this is a foreclosure proceeding, a court acts as a court of equity with respect to the complaint. The balance of the equity and the determination of what is required by equity to a particular case are matters of discretion of the trial court. Dime Savings Bank of New York v. Griselle, 36 Conn.App. 313, 320.
While it is the opinion of this court that the defendant should have sought advice of the court and requested a payment similar to the procedure for use and occupancy payments, the outright rejection by the plaintiff was equally as arbitrary and advice of the court should have been sought as well. In this case, the court finds the plaintiff may not charge interest and late fees for those monthly common charges which were submitted subsequent to the institution of the foreclosure action. All other findings of this court are unchanged and the matter is to be assigned to the foreclosure calendar.