Opinion
No. HHB CV 07-5003830-S
June 2, 2009
MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION FOR DEFICIENCY JUDGMENT
Pending before the court is the plaintiff's motion for a deficiency judgment, pursuant to General Statutes § 49-14, following a judgment of strict foreclosure with respect to property located at 165 Booth Street in New Britain, CT. The court held a hearing on May 26, 2009, at which time the plaintiff appeared by counsel but the defendant, Barbara Casella, did not. For the following reasons, the Motion is granted.
The court finds as follows: On June 25, 2007, the court entered a judgment of strict foreclosure in favor of the plaintiff on its mortgage, and set the law day for July 23, 2007. In that judgment, the court found the original debt secured by the mortgage to be $21,629.88; awarded attorneys fees of $1,500.00; awarded an appraiser's fee of $300.00 and a title search fee of $225.00. The defendant failed to redeem, and title to the premises vested in the plaintiff on July 24, 2007. Per diem interest from the date of judgment to the date of title vesting amounted to $160.16. On November 15, 2007, the plaintiff moved for a deficiency judgment. Statutory interest on the deficiency from the date of judgment to today amounts to $4,420.56. That totals to $28,235.60, and the court finds that amount to be the plaintiff's claim for the purposes of this proceeding.
In the meantime, on August 6, 2007, a judgment of strict foreclosure was also entered in favor of a prior mortgage holder with respect to the same property in the case of Aurora Loan Services v. Barbara Untiet, n/k/a Barbara Casella, Superior Court, judicial district of New Britain, Docket No. CV 07-6000909. The defendant and subsequent encumbrancers, including the plaintiff in the instant case, failed to redeem in that matter, too. Consequently, as of October 17, 2007, title belongs to Aurora Loan Services. Thus, in fact, plaintiff obtained no proceeds from the foreclosure of this property.
In a deficiency judgment proceeding, however, court is required to apply a calculation prescribed by statute to determine if plaintiff is eligible for a deficiency judgment. Under the statute, the court is required to establish a value for the claim, a value for the mortgaged property, and render a judgment for the plaintiff for the difference, if any. General Statutes § 49-14(a). The burden is on the plaintiff to prove the property was worth less than the claim:
"`[T]he plain object [of the deficiency judgment statute] is to require a mortgage creditor, who appropriates the property in part payment only of his debt, to apply the actual value of the security to the debt before collecting any claimed deficiency' . . ." People's Holding Co. v. Bray, 118 Conn. 568, 571, 173 A. 233 (1934), quoting Staples v. Hendrick, 89 Conn. 100, 103, 93 A.5 (1915); Maresca v. DeMatteo, 6 Conn.App. 691, 694, 506 A.2d 1096 (1986). Implicit in the purpose of the statute is the initial prerequisite that the plaintiff provide the court with sufficient evidence to demonstrate that she is entitled to a deficiency judgment. Indeed, this court has held, in a deficiency judgment proceeding, that "the trier may not decide an issue which is wholly unsupported by the evidence." New Haven Savings Bank v. West Haven Sound Development, 190 Conn 60, 71-72, 459 A.2d 999 (1983).
Eichman v. J J Bldg. Co., Inc., 216 Conn. 443, 450, 582 A.2d 182 (1990).
As noted above, the court finds the claim to be $28,235.60. Based on the information presented at hearing, and based on information on file in the case, the court further finds as follows: At the time the judgment was entered in this case, the property was appraised at $175,000.00. Plaintiff continues to rely on that appraisal for the purposes of calculating the value of the property for the purposes of these proceedings. Additionally, the complaint showed prior encumbrances exceeding that value. The court found that the debts exceeded the fair market value in 2007, and ordered a strict foreclosure accordingly. Those prior encumbrances should be subtracted from the fair market value to find a value in a deficiency judgment proceeding as well. American Mortgage Corp. v. Hope, 41 Conn.App. 324, 330, 675 A.2d 912 (1996). Therefore, absent objection, the court continues to find that the prior encumbrances exceed the fair market value of the property. Thus, the value of the property is less than the claim, making plaintiff eligible for a deficiency judgment for the amount of the claim.
For all of the foregoing reasons, a deficiency judgment shall enter in favor of the plaintiff, Webster Bank, National Ass'n, and against the defendant, Barbara Jane P. Casella, in the amount of $28,235.60.