Associates Financial Services of America, Inc. v. Sorenson

Decision Date16 September 1997
Docket NumberNo. 16187,16187
Citation700 A.2d 107,46 Conn.App. 721
CourtConnecticut Court of Appeals
PartiesASSOCIATES FINANCIAL SERVICES OF AMERICA, INC. v. Samuel P. SORENSON et al.

Ronald D. Japha, with whom, on the brief, were Abraham I. Gordon and Richard S. Scalo, Bridgeport, for appellant (substitute plaintiff).

Beecher A. Larson, Botsford, with whom was Robert Solari, Norwalk, for appellee (defendant Northern State Financial, LLC).

Before HEIMAN, SCHALLER and SPEAR, JJ.

SCHALLER, Judge.

In this foreclosure action, the substitute plaintiff, Ford Consumer Finance Company (Ford Finance), 1 appeals from the judgment rendered following the trial court's granting of summary judgment in favor of the defendant Northern State Financial, LLC (Northern). Ford Finance claims that (1) General Statutes (Rev. to 1993) § 12-157 2 is unconstitutional on its face because it fails to provide proper notice and an opportunity to be heard, 3 and (2) the trial court improperly granted summary judgment. We affirm the judgment of the trial court.

The record discloses the following facts and procedural history. By way of a note dated April 13, 1990, Samuel P. Sorenson promised to pay to the order of the plaintiff, Associates Financial Services of America, Inc. (Associates), the sum of $100,537.42 plus interest. To secure the note, Sorenson mortgaged a single family residence at 45 Glendale Avenue, Bridgeport. For several years thereafter, Sorenson failed to pay the property taxes owed to the city of Bridgeport. On June 29, 1993, the city auctioned the Glendale Avenue property at a tax sale pursuant to § 12-157. Robert Solari and Beecher Larson purchased the property and obtained title via a tax collector's deed. No one redeemed the property and the tax collector's deed was recorded on June 30, 1994. Solari and Larson conveyed the property to Northern on July 11, 1994, by way of a quit claim deed.

Sorenson ceased making payments on the note on May 1, 1994. Associates filed a substitute complaint on February 22, 1995, against Sorenson and Northern, seeking to foreclose its mortgage on the Glendale Avenue property. 4 Northern moved for summary judgment, arguing that it was entitled to judgment as a matter of law because the conveyance of the premises through a tax sale extinguished Associates's mortgage. The trial court granted Northern's motion and this appeal followed.

I

Ford Finance first claims that § 12-157 is unconstitutional because it fails to provide proper notice and an opportunity to be heard in violation of the procedural due process protections provided in the fourteenth amendment to the federal constitution. 5 We disagree.

"In order to prevail on its procedural due process claim, the plaintiff must show that (1) its property interest is cognizable under the due process clause, (2) it has been deprived of its property interest, and (3) the deprivation of the property interest has occurred without due process of law." Dutch Point Credit Union, Inc. v. Caron Auto Works, Inc., 36 Conn.App. 123, 130, 648 A.2d 882 (1994). Here, the mortgagee possessed a substantial property interest in the subject property. Moreover, because the sale of the property resulted in the passage of title, free of all liens on the property, the mortgagee was deprived of its property interest. We conclude, however, that the deprivation of the mortgagee's property interest did not occur without due process of law.

A

We first address Ford Finance's claim that the statutory scheme is unconstitutional because it fails to provide proper notice. In Mennonite Board of Missions v. Adams, 462 U.S. 791, 795, 103 S.Ct. 2706, 2709, 77 L.Ed.2d 180 (1983), the United States Supreme Court held that "prior to an action which will affect an interest in life, liberty or property protected by the Due Process Clause of the Fourteenth Amendment, a State must provide notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." (Internal quotation marks omitted.) In Mennonite Board of Missions, the Supreme Court found that a state statute that allowed for the sale of real property where the payment of taxes was delinquent after a specified period of time was unconstitutional. The statute in that case required only notice by publication and notice to the owner by mail. The statute did not provide for notice to lienholders and, as a result, property could be sold free of all liens and encumbrances without notice to a mortgagee. Unlike the statute in Mennonite Board of Missions, § 12-157 requires that notice be posted on a signpost in the town where the real estate is located, that the town clerk record notice on the land records, that notice be published in a local newspaper for at least three consecutive weeks, and that notice be sent by mail to the owner, mortgagee, lienholder, or any other party having an interest in the property. We conclude that the notice provided by § 12-157 is reasonably calculated to apprise all interested parties of the tax sale and is, therefore, proper.

B

We next address Ford Finance's claims that § 12-157 is unconstitutional because it fails to provide for a hearing or judicial review of the valuation and sale. Although our appellate courts have never addressed the constitutionality of § 12-157, that issue has been raised and addressed in the Superior Court. Pace Motor Lines v. Biagiarelli, Superior Court, judicial district of Fairfield, Docket No. 318117S, 1996 WL 383398 (June 24, 1996) (Levin, J.). 6 In Pace Motor Lines, the court offered the following analysis that we find to be persuasive: "[T]he procedural due process requirement for a hearing applies only where a governmental body or official has engaged, or should have engaged, in factfinding. Mathews v. Eldridge, 424 U.S. 319, 344, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (procedural due process rules shaped by risk of error inherent in truthfinding process). In a tax sale pursuant to General Statutes § 12-157, the tax collector does not find facts, other than the fact of nonpayment of taxes. See W. Legg, 'Tax Sales and the Constitution,' 20 Okla. L.Rev. 365, 374 (1967). He merely follows the statutory procedure laid out for the sale of real property. The power to sell land for delinquent taxes is strictly construed; the tax collector must substantially, if not strictly, comply with all statutory provisions. 85 C.J.S., Taxation §§ 745, 746, 798, 799 (1954); 72 Am.Jur.2d, State and Local Taxation § 931 (1974). Where a governmental official or body executes a ministerial duty, there is no need for a hearing. Connecticut Health Facilities v. Zoning Board of Appeals, 29 Conn.App. 1, 6-7, 613 A.2d 1358 (1992). Indeed, in connection with the tax sale, the tax collector is vested with no discretion save for the authority, albeit 'for any reason,' to 'adjourn such sale from time to time....' General Statutes (Rev. to 1993) § 12-157. That, however, is merely incidental to the ministerial duty to conduct a fair sale in a responsible manner, in accordance with the dictates of Townsend Savings Bank v. Todd, 47 Conn. 190 [1879]. See also Blossom v. Railroad Co., 70 U.S. (3 Wall.) 196, 209, 18 L.Ed. 43 (1865); Weinfield v. Cocke, 60 S.W.2d 842, 844 (Tex.Civ.App.1933), aff'd, 127 Tex. 353, 92 S.W.2d 1017 (1936); Mower v. Bohmke, 9 Utah 2d 52, 55, 337 P.2d 429 (1959).

"Even if the tax collector were to misuse his authority and to subvert the fairness of the tax sale, that would not render General Statutes § 12-157 violative of procedural due process. Rather, the plaintiffs' remedy would be a common law action, such as an action for a declaratory judgment and injunction. General Statutes § 52-483; see also Newton v. Schott, 87 Conn. 142, 87 A. 271 (1913) (action to set aside tax levy and sale of real estate and deed); Townsend Savings Bank v. Todd, supra, 47 Conn. 190 (action for ejectment); see also Curtis Building Co. v. Tunstall, 36 Pa.Commw. 233, 236 n. 2, 387 A.2d 1370 (1978) (if statutory remedy inadequate, action in equity to enjoin tax sale would lie; statute not unconstitutional). As the United States Supreme Court has observed, 'there is an important difference between a challenge to an established state procedure as lacking in due process and a property damage claim arising out of the misconduct of state officers. In the former situation the facts satisfy the most literal reading of the Fourteenth Amendment's prohibition against "State" deprivations of property; in the latter situation, however, even though there is action "under color of" state law sufficient to bring the amendment into play, the state action is not necessarily complete. For in a case such as this the law of [the state] provides, in substance, that the plaintiff is entitled to be made whole for any loss of property occasioned by the unauthorized conduct of [a state official].' Parratt v. Taylor, 451 U.S. 527, 542, 101 S.Ct. 1908, [1916] 68 L.Ed.2d 420 (1981), quoting then Judge, later Justice, Stevens writing for the panel in Bonner v. Coughlin, 517 F.2d 1311, 1319 (7th Cir.1975), modified en banc, 545 F.2d 565 (7th Cir.1976), cert. denied, 435 U.S. 932, 98 S.Ct. 1507, 55 L.Ed.2d 529 (1978)." Pace Motor Lines v. Biagiarelli, supra.

We conclude that § 12-157 does not violate due process because it fails to provide for a hearing or judicial review.

II

Ford Finance next claims that the trial court improperly granted summary judgment in favor of Northern because the trial court improperly failed to consider certain allegations contained in the affidavit of Associates' vice president. We are unpersuaded.

"The standards governing our review of a trial court's decision to grant a motion for summary judgment are well established. Practice Book § 384 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted...

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