Maresca v. DeMatteo

• Decision Date: 08 April 1986
• Docket Number: No. 3889,3889
• Citation: 6 Conn.App. 691,506 A.2d 1096
• Court: Connecticut Court of Appeals
• Parties: Roseann MARESCA v. Lisa Marie DeMATTEO et al.

Page 1096

506 A.2d 1096

6 Conn.App. 691

Roseann MARESCA v. Lisa Marie DeMATTEO et al.

No. 3889.

Appellate Court of Connecticut.

Submitted on Briefs Dec. 13, 1985.

Decided April 8, 1986.

Victor P. Fasano, New Haven, filed a brief, for appellant (named defendant).

Gwen B. Dreilinger and Jack M. Bassett, Avon, filed a brief, for appellee (plaintiff).

Before HULL, BORDEN and DALY, JJ.

DALY, Judge.

This action was brought to foreclose a mortgage given by the named defendant to the plaintiff. In addition to the foreclosure and possession of the mortgaged premises, the plaintiff sought a deficiency judgment against the named defendant.

A judgment of strict foreclosure was rendered on January 3, 1984, in favor of the plaintiff, Roseann Maresca. The amount of the debt was fixed at $69,441.91, plus attorney's fees, costs and interest from the date of judgment at the rate of 19 percent as provided by the note. The named defendant's law day of April 24, 1984, passed without any redemption. The final law day for all of the defendants, April 30, also passed without redemption and title vested in the plaintiff on May 1, 1984. The following encumbrancers with liens subsequent to the plaintiff's mortgage also failed to redeem their interests: the defendants Peter Shanley and Michael Fisher with a mortgage of $6900 dated January 27, 1983; the defendant Frank Scopetta with a mortgage of $10,000 dated January 25, 1983; and the defendant Yale-New Haven Hospital, Inc., with a judgment lien in the amount of $358.16 plus costs dated March 24, 1983. ¹ The plaintiff filed for a deficiency judgment on June 1, 1984, and, thereafter, formal proceedings took place culminating in a supplemental judgment dated December 31, 1984. Based on an appraisal valuing the premises at $74,000, that judgment assessed a deficiency in favor of the plaintiff in the amount of $5685.29, plus a $150 appraiser's fee and a $100 attorney's fee.

The named defendant has appealed from the judgment raising the following errors: (1) the motion for the deficiency judgment was untimely; (2) the deficiency judgment was barred by the usury statutes; (3) prior tax and water liens should not have been deducted from the determined value of the premises; (4) the awarding of interest at the rate of 19 percent to April 30, 1984, was usurious; and (5) the awarding of additional appraiser's and attorney's fees in the supplemental judgment was improper.

General Statutes § 49-14(a) provides in relevant part: "At any time within thirty days after the time limited for redemption has expired, any party to a mortgage foreclosure may file a motion seeking a deficiency judgment...." The named defendant contends that her law day, plus thirty days, would have been May 24, 1984, and, therefore, that the plaintiff's motion for deficiency judgment dated June 1, 1984, was untimely. ²

"[General Statutes § 49-14] is solely a provision for appraisal and deficiency proceedings following foreclosure. The initial determination of strict foreclosure has already taken place, as it must before the statute comes into play." (Emphasis in original.) Society for Savings v. Chestnut Estates, Inc., 176 Conn. 563, 568, 409 A.2d 1020 (1979). " 'The plain object [of the 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,' and we therefore refer to it as a 'provision for fixing the actual value of the property as of the date of foreclosure, and for making that valuation a conclusive basis for determining the ... amount of any claimed deficiency.' ... Justice to all parties as well as the purpose of the statute dictates that the value of the property shall be appraised as of the date when title becomes absolute in the mortgagee." People's Holding Co. v. Bray, 118 Conn. 568, 571, 173 A. 233 (1934); Staple v. Hendrick, 89 Conn. 100, 103, 93 A.5 (1915); City Savings Bank of Bridgeport v. Miko, 1 Conn.App. 30, 33, 467 A.2d 929 (1983).

As General Statutes § 49-14(a) would not be triggered until title became absolute in the plaintiff as of May 1, 1984, the motion was timely filed.

The defendant further claims that the deficiency judgment was barred by the usury statute. General Statutes § 37-4 prohibits the loaning of money to any person at an interest rate greater than 12 percent per year and General Statutes § 37-8 prohibits actions to recover "principal or interest of any loan prohibited" by § 37-4. General Statutes § 37-9(3), however, provides that the provisions of § 37-4 do not affect "any bona fide mortgage of real property for a sum in excess of five thousand dollars...." The defendant claims that the exemption from the usury statute provided by § 37-9(3) does not apply to a deficiency judgment, which is an unsecured claim for the balance of the money owed on the promissory note. The defendant argues, therefore, that the 19 percent interest rate on the principal balance is usurious as to any deficiency judgment, and that the provisions of General Statutes §§ 37-4 and 37-8 bar a deficiency judgment in this case.

Although the...