Opinion
No. TTD CV 09 5004840 S
October 5, 2011
MEMORANDUM OF DECISION
On May 9, 2011, the Appellate Court affirmed, per curiam, the judgment of foreclosure by sale in this case, 128 Conn.App. 903 (2011). Following that affirmance, the court, Baldini, J., reset the sale date for September 17, 2011. The court ordered the sale to conform to the Foreclosure By Sale Standing Orders, JD-CV-79 Rev. 10-10.
Standing Order 11 directs that a sign advertising the sale "must be placed on the premises not less than 20 nor more than 30 days prior to the sale." The Committee, Attorney Elizabeth C. Foran, had the sign erected on August 18, 2011, in compliance with this order. However, as of August 22, 2011, the committee noticed that someone had removed the sign. The Committee never attempted to replace the missing sign.
Richard Lee is a junior encumbrancer and defendant in this foreclosure action. He objects to approval of the sale which occurred on September 17, 2011. Lee points out that Standing Order 14 authorizes the committee "to replace the sign once without Court approval, provided the sign can be erected at least ten days before the sale." He asserts that the lack of signage may have diminished the number of potential bidders participating in the auction. He argues that the court ought to disapprove the sale based on this departure from the standing orders.
For the following reasons, the court disagrees that a new sale is warranted. First, no deviation from the standing orders occurred in this case. The committee complied with Standing Order 11 when she had the sign installed on the premises on August 18, 2011. Although Standing Order 14 permits a committee to replace a missing sign without seeking advice from the court, that order does not expressly compel replacement.
Second, even if such replacement were implied by the existence of Standing Order 14, deviation from that order by a committee does not render the sale void. General Statutes § 49-25 dictates that, when a court orders a foreclosure sale, the court "shall direct . . . how the sale shall be made and advertised; . . ." No statute commands use of a sign as part of the advertising order. Nor is signage otherwise required by caselaw. Second National Bank of New Haven v. Burtchell, 166 Conn. 388, 392 (1974).
Of course, when the court orders the sale to be conducted in a particular manner, the committee is obligated to obey that order. Willimantic Savings and Loan Association v. Boudreau, Appellate Session of the Superior Court, February 2, 1979; 5 C.L.T. No. 7, p. 10-11; Parsky, Healy, and Sponzo, Js. In that case, the trial court indicated that the deposit be by cash or certified check. Instead, the committee accepted as a deposit a personal check. The owner of the equity of redemption objected to confirmation of the foreclosure sale based on that deviation from the court's judgment. The trial court approved the sale, and the defendant appealed from that approval.
The appellate panel affirmed the trial court's decision on two grounds. First, the trial court had the power to modify its orders retroactively. Quoting from caselaw from other states, the Appellate Session observed:
In truth, the court is not absolutely bound by the terms of its order or decree respecting the mode of the sale . . . If the court had the power to direct the terms of the sale in the first instance, it may change them afterwards, and, if an officer or any other agent of the law, or of the court in making a sale, departs from the directive of the decree the court may nevertheless, by confirming the sale, ratify his action, provided always that the terms so ratified are such as the court had power to impose in the first instance.
As noted above, in the present case, the court had the discretion to decline to replace the sign before the sale. Consequently, the court has the power to ratify the sale even though the committee chose not to exercise her authority under Standing Order 14 to replace it. "In sum, a sale under a foreclosure is void only if conducted in a manner prohibited by statute, or in a manner which would not have been in the power of the court in the first instance to have authorized." Id.
The Appellate Session also upheld the trial court's decision to approve the sale because the objector never demonstrated prejudice as a result of the deviation. "In order to vitiate a sale it is essential that the person attacking the sale allege and establish injury to himself resulting from the irregularity complained of. Id.
In the present case, Lee's concern over the absence of a sign on the premises to be auctioned is mere conjecture. The sale was advertised on the judicial website for a substantial period of time. The court granted the committee's request to hold the sale inside the unoccupied, "spec" home, so as to draw a wider potential audience of prospective bidders. No evidence was submitted that any potential buyer missed the sale because the sign was removed within a few days of its installation.
To summarize, the committee never strayed from the mandates of the Standing Orders, and, in any event, the court ratifies the committee's decision to decline to replace the sign. Also, the court finds that no harm was caused to Lee or other junior encumbrances by virtue of shortened time in which the sign appeared on the premises. The court approves the sale and overrules the objection.