City Sav. Bank of Bridgeport v. Dessoff

• Decision Date: 30 April 1985
• Docket Number: No. 2346,2346
• Citation: 3 Conn.App. 644,491 A.2d 424
• Court: Connecticut Court of Appeals
• Parties: CITY SAVINGS BANK OF BRIDGEPORT v. Andreas DESSOFF et al.

Page 424

491 A.2d 424

3 Conn.App. 644

CITY SAVINGS BANK OF BRIDGEPORT v. Andreas DESSOFF et al.

No. 2346.

Appellate Court of Connecticut.

Argued Feb. 6, 1985.

Decided April 30, 1985.

Richard G. Kent, Bridgeport, with whom, on the brief, was Sperry A. DeCew, New Canaan, for appellant (named defendant).

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

Before DUPONT, C.P.J., and HULL and SPALLONE, JJ.

HULL, Judge.

The named defendant, Andreas Dessoff, ¹ appeals ² from a judgment of foreclosure by sale of a mortgage on his condominium and from the subsequent order of the court opening that judgment and setting new law days for strict foreclosure. Dessoff raises four issues by this appeal: (1) That the trial court erred in failing to rule on his equitable special defense that tender of all past and currently due installments prior to institution of a foreclosure action is a bar thereto; (2) that this special defense is valid as a matter of law; (3) that the trial court erred in refusing to clarify its memorandum of decision by ruling on the above-mentioned special defense and by failing to make requested findings of fact subordinate to such a ruling; and (4) that the trial court erred in opening its judgment for the purpose of setting new law days for strict foreclosure. We find that the court erred in failing to rule on Dessoff's claimed defense. Because that defense is unmeritorious, however, this was harmless error. As to the remainder of Dessoff's claims, there is no error.

On April 26, 1978, Dessoff signed a note in favor of the plaintiff which was secured by a mortgage on his condominium. Under the terms of that note, Dessoff was to pay $470.19 monthly to the plaintiff by the fifteenth day of the month. Dessoff failed to make the agreed-upon payments in December, 1980, January, 1981, and February, 1981. Consequently, on February 25, 1981, the plaintiff sent Dessoff a letter which stated, in part: "This is your final opportunity to bring your account up to date and avoid costly legal fees. If the above mentioned mortgage account is not brought completely up to date on or before March 7, 1981, your account will be referred to our attorney for immediate collection and possible foreclosure proceedings. Payments other than the total amount due will be returned and foreclosure will be commenced."

Dessoff did not reply to this letter and on March 20, 1981, Attorney Joseph F. Sgueglia, Jr., representing the plaintiff, sent Dessoff a letter stating that his account had "been turned over to my office for collection." As a result of this letter and a subsequent telephone conversation with Sgueglia, Dessoff wired two checks to the plaintiff on March 27, 1981. The total amount of these checks equalled the four installments due for December, 1980, and January through March, 1981. Upon receipt, the plaintiff forwarded these checks to Sgueglia with directions that they should be returned to Dessoff. Sgueglia did so and shortly thereafter this action was commenced.

Having admitted all of the factual allegations of the complaint in his answer, Dessoff raised three special defenses on the basis of two theories: (1) That during his telephone conversation with Sgueglia, Dessoff made an agreement with him under which the plaintiff would forbear from foreclosing if certain conditions were met; ³ and (2) that Dessoff had "an equitable defense to the foreclosure action." This second theory, hereinafter referred to as Dessoff's equitable defense, was not made any more specific until he filed his post-trial brief. That brief states that Dessoff's equitable defense was that his tender of March 27, 1981, constituted a bar to the foreclosure. The trial court ruled that Dessoff had no defense to the foreclosure because Sgueglia had no authority to enter into any agreement, nor was there any consideration to support such an agreement, had one been made. The court failed to make a finding of whether or not Dessoff had, in fact, tendered any payments to the bank. The court did not refer to Dessoff's equitable defense at all, and, upon a motion for clarification, the court declined to make any findings with regard to the agreement or tender, and declined to rule on the equitable defense. Dessoff then filed the present appeal from the court's judgment of foreclosure by sale. That appeal was later amended when the court opened its judgment, upon a motion of the plaintiff, to amend it by setting law days for strict foreclosure. As a result of that strict foreclosure, the plaintiff is now in possession of the property.

Dessoff's first claim of error is that the court erred in failing to rule on his equitable defense. We agree. Practice Book § 3060B requires the trial court to "include in its decision its conclusion as to each claim of law raised by the parties." Practice Book § 285A further provides that "[i]f a party intends to raise any claim of law which may be the subject of an appeal, he must either state the same distinctly to the court before his argument is closed or state it in a written trial brief." Thus, although this defense was less than clear when originally pleaded, the theory upon which it is based was made clear in Dessoff's post-trial brief. ⁴ Consequently, we conclude that this defense was "raised" within the meaning of Practice Book § 3060B and that the trial court erred in failing to rule upon it.

Our decision would ordinarily mandate that we remand the case in order for the trial court to decide the issue. We decline to do so for two reasons. First, Dessoff's second issue upon appeal is the validity of his equitable defense as a matter of law. Second, "[u]nder circumstances where the record presents the entire proceedings before the trial court, the question is essentially one of law, and we are in no different position than we would be in had the trial court answered it, we have considered, on its merits, the question thus left undecided. Cochran v. McLaughlin, 128 Conn. 638, 644, 24 A.2d 836 [1942]." Alderman v. Hanover Ins. Group, 155 Conn. 585, 590-91, 236 A.2d 462 (1967). Such is the case here.

On its merits, Dessoff's claim that his tender ⁵ of the past and currently due installments barred the subsequent foreclosure action fails, for that tender did not occur prior to the plaintiff's effective election to accelerate the maturity of the mortgage pursuant to its rights thereunder. ⁶

"The general...