Opinion
No. CV93-0312436S
February 23, 1993.
MEMORANDUM OF DECISION ON MOTION TO DISCHARGE LIS PENDENS
The defendants have filed an application to discharge the lis pendens against their property, claiming that there is no probable cause for it.
This is a mortgage foreclosure action. The property against which the lis pendens was filed was mortgaged by defendants to the plaintiff. The defendants have not paid the note according to its terms and an affidavit of debt was filed at the hearing indicating that the debt is over $29,000. The defendants claim that the action cannot he brought by the plaintiff because the note has been assigned to a federal mortgage agency, and that the assignee is a holder in due course. There was no evidence of an assignment on the land records, and an assignee of a mortgage deed cannot proceed with a foreclosure without complying with section 49-10 C.G.S. The documents filed show record title in the bank. The plaintiff is also the servicer of the mortgage. The plaintiff only has to prove probable cause to sustain the lis pendens at this stage of the proceeding under section 52-325b, and has met that burden. A lis pendens is allowed where the action will in some way either directly or indirectly affect the title of real property, Garcia v. Brooks Street Associates, 209 Conn. 15, 22, and a mortgage foreclosure action meets that test.
The application is denied.
Robert A. Fuller, Judge