Summary
In State Street Bank Trust Co. v. Knight, supra, 35 Conn. L. Rptr. 331, the facts of which are almost identical to this case, the court held: "Since the [d]efendant, Beth L. Knight, has successfully defended this matter which resulted in its withdrawal as to her... she is entitled to an award of attorneys fees."
Summary of this case from The Bank of New York v. BellOpinion
No. CV 03-0080718
August 26, 2003
This foreclosure action was originally instituted against Peter J. Knight and Beth L. Knight. After the court denied summary judgment as to the Plaintiff's claims against Beth L. Knight the Plaintiff withdrew the action as to her. Subsequently, the action was withdrawn as to all parties. The Defendant, Beth L. Knight, has now moved for an award of attorneys fees in her favor pursuant to General Statutes § 42-150bb. That statute provides: "Whenever any contract or lease entered into on or after October 1, 1979, to which a consumer is a party, provides for the attorneys fee of the commercial party to be paid by the consumer, an attorneys fee shall be awarded as a matter of law to the consumer who successfully prosecutes or defends an action or a counterclaim based upon the contract or lease. Except as hereinafter provided, the size of the attorneys fee awarded to the consumer shall be based as far as practicable upon the terms governing the size of the fee for the commercial party. No attorneys fee shall be awarded to a commercial party who is represented by its salaried employee. In any action in which the consumer is entitled to an attorneys fee under this section and in which the commercial party is represented by its salaried employee, the attorneys fee awarded to the consumer shall be in a reasonable amount regardless of the size of the fee provided in the contract or lease for either party. For the purposes of this section, `commercial party' means the seller, creditor, lessor or assignee of any of them, and `consumer' means the buyer, debtor, lessee or personal representative of any of them. The provisions of this section shall apply only to contracts or leases in which the money, property or service which is the subject of the transaction is primarily for personal, family or household purposes."
The Plaintiff argues that the statute does not apply to an action to foreclose a mortgage and cites the provisions of General Statutes § 42-151 which defines consumer contracts and General Statutes § 42-153 which excludes mortgages from the definition of consumer contracts. However these statutes are inapplicable. The Supreme Court in Rizzo Pool Co. v. Del Grosso, 240 Conn. 58, 71-72 (1997), stated: "Chapter 741d of the General Statutes, entitled `Attorneys Fee Clauses,' contains only two sections, §§ 42-150aa and 42-150bb, both of which are specifically designated as treating attorneys fees in actions on consumer contracts. Both sections provide a definition of `consumer contract' as one in which `the money, property or service that is the subject of the transaction is primarily for personal, family or household purposes.' Notably, § 42-150bb contains no specific monetary limit on its applicability. Indeed, aside from the proviso that attorneys fees should be based as far as practicable on the terms governing the commercial party's fees § 42-150bb contains no further qualification. Judging from its terms, the focus of chapter 741d is on the amount of attorneys fees that may be awarded, depending upon whether the claimant is the consumer or the commercial party . . . Section 42-151 (b) provides a definition of a `consumer contract,' to be applied under that chapter, which the defendants in this case admittedly cannot satisfy, and does not mention the issue of attorneys fees. Section 42-150bb provides its own definition of the type of contract for which attorneys fees may be recovered. It contains no reference to the following chapter and no suggestion that § 42-151 should apply. As indicated, the first sentence of § 42-151 expressly provides that the definitions provided `shall apply in this chapter,' and does not purport to provide a global definition of `consumer contracts.' (Emphasis added.) We find no reason under the facts and circumstances of this case to look beyond § 42-150bb to define its scope or to limit its application." (Footnote omitted.)
The Plaintiff also argues that the amount of fees is limited by the provisions of § 42-150aa. The Rizzo court rejected such a claim as well and stated: "[`W]e conclude That the legislature clearly intended the phrase, `The terms governing the size of the fee for the commercial party,' to refer to the attorneys fees provisions in the parties' contract, and not to § 42-150aa." Rizzo Pool Co. v. Del Grosso, 240 Conn. 58, 76 (1997).
Lastly, the Plaintiff claims that in order to recover attorneys fees the contract must contain a provision for reciprocal fees. However in Rizzo the court noted the legislative history which indicated that the purpose of § 42-150bb was to make attorneys fees clauses reciprocal. Quoting Senator Alfred Santaniello, "`a clause for the benefit of the creditor will automatically allow attorneys fees to the prevailing debtor who successfully prosecutes or defends an action or counterclaim based upon the contract or lease.' 22 S.Proc., Pt. 8, 1979 Sess., p. 2542." Id., p. 75. See also, In Re: Gifford, 256 B.R. 661, 664 (D.Conn. 2000).
Since the Defendant, Beth L. Knight, has successfully defended this matter which resulted in its withdrawal as to her, and the note and mortgage here provide for the collection of reasonable attorneys fees upon the debtor's default (see exhibits attached to Plaintiff's Motion for Summary Judgment as to Defendant Beth L. Knight), she is entitled to an award of attorneys fees. Fraser v. ETA Assn., Inc., 41 Conn. Sup. 417, 420 (1990) (parties entitled to attorneys fees pursuant to § 42-150bb include defendants in cases that are withdrawn).
Where a contract provides for an award of attorneys fees such a clause requires an evidentiary showing of reasonableness. Rizzo Pool Co. v. Del Grosso, 240 Conn. 58, 77 (1997). Therefore the court will schedule a hearing to determine the reasonable attorneys fees due Beth Knight.
The Defendant, Beth L. Knight's motion for an award of attorneys fees is granted subject to a determination of the amount of fees. The Plaintiff's objection is overruled.
Jane S. Scholl