Nat'l City Real Estate Servs., LLC v. Tuttle

• Decision Date: 03 February 2015
• Docket Number: No. 36324.,36324.
• Citation: 155 Conn.App. 290,109 A.3d 932
• Parties: NATIONAL CITY REAL ESTATE SERVICES, LLC v. Julian D. TUTTLE et al.
• Court: Connecticut Court of Appeals

155 Conn.App. 290

109 A.3d 932

NATIONAL CITY REAL ESTATE SERVICES, LLC

v.Julian D. TUTTLE et al.

No. 36324.

Appellate Court of Connecticut.

Argued Dec. 3, 2014.

Decided Feb. 3, 2015.

Thomas E. Minogue, Shelton, for the appellants (named defendant et al.).

John J. Ribas, with whom, on the brief, was Jeffrey M. Knickerbocker, for the appellee (substitute plaintiff).

Donald F. Salomone, self-represented, the appellee (successful bidder).

BEACH, PRESCOTT and BISHOP, Js.

Opinion

PER CURIAM.

At issue in this appeal is whether, following a judgment of foreclosure by sale rendered in favor of the substitute plaintiff, PNC Bank, N.A.,¹ with respect to property owned by the defendants Julian Tuttle and Janice Tuttle,² the trial court abused its discretion by approving a sale of the property in an amount substantially lower than its fair market value. Having carefully considered the facts and circumstances surrounding the court's approval of the sale, we conclude that the court did not abuse its discretion and, accordingly, affirm the judgment of the trial court.

The record reveals the following relevant facts and procedural history. The defendants defaulted on a note that they had executed in October, 2001, in the principal amount of $108,660. The note was secured by a mortgage on real property owned by the defendants at 233235 Monroe Turnpike in Monroe.

The present foreclosure action was commenced in December, 2009. On March 12, 2012, the court granted the plaintiff's motion for summary judgment as to liability and, on January 22, 2013, rendered judgment of foreclosure by sale. At that time, the court found that the fair market value of the subject property was $490,000, and that the debt owed to the plaintiff was $135,245.72. The court set a sale date of May 25, 2013, and appointed Attorney Kathleen M. Dunn to act as the committee overseeing the foreclosure sale. The defendants did not appeal from the judgment of foreclosure.

The foreclosure sale was conducted on May 25, 2013, at the property. It was raining heavily at the time of the sale. The defendants, who continued to occupy the premises, did not provided access to allow the sale to be conducted inside or for inspection of the interior by potential bidders.³ Of the three bidders who had preregistered with the committee, only two appeared at the sale. The opening bid was $157,639.63. A total of forty-two bids were made. Donald F. Salomone placed the winning bid of $210,500, which was accepted by the committee.

On May 30, 2013, the committee filed a motion for acceptance of the committee report and for approval of the sale. The defendants filed an objection to the committee's motion on June 12, 2013. They argued that the closing bid was unfair and inadequate because it was $289,500 (42.9 percent) less than the fair market value of the property as determined by the court at the time of the foreclosure judgment, and because the low sale price unfairly deprived the defendants of substantial equity that they needed to satisfy subsequent encumbrancers and other creditors. They also argued that the low sale price provided an unwarranted windfall to Salomone. Subsequent encumbrancer JPMorgan Chase Bank, N.A. (JPMorgan); see footnote 2 of the opinion; also filed an objection, noting that the final bid was less than 43 percent of the fair market value as determined by the court, and arguing that approval of the sale would be inequitable.

The plaintiff filed a memorandum of law in support of the committee's motion seeking approval of the sale. The plaintiff argued that this court has recognized only limited grounds upon which a trial court properly could refuse to approve a sale; see First National Bank of Chicago v. Maynard, 75 Conn.App. 355, 361, 815 A.2d 1244 (“generally recognized that the grounds [that] would warrant a court's refusal to approve a [foreclosure] sale are fraud, misrepresentation, surprise or mistake” [internal quotation marks omitted] ), cert. denied, 263 Conn. 914, 821 A.2d 768 (2003) ; none of which were applicable to the present sale. The plaintiff further argued that in LaSalle Bank, N.A. v. Randall, 125 Conn.App. 31, 6 A.3d 175 (2010), this court upheld the approval of a foreclosure sale at which the winning bid was less than 40 percent of the fair market value as determined by the court at the time of the foreclosure judgment.

The successful bidder, Salomone, also filed a memorandum of law in support of approval of the sale. In addition to the arguments made by the plaintiff, Salomone noted that the most recent court-appointed appraisal of the property, conducted on May 18, 2013, in accordance with General Statutes § 49–25, listed the fair market value of the property at $360,000, substantially less than the $490,000 appraisal.

The court, Hon. Richard P. Gilardi, judge trial referee, heard oral argument on the committee's motion on July 15, 2013.⁴ After listening to the defendants' arguments that the sale price was too low, and thus inequitable, the court asked the defendants' counsel, “what's to say if there's another sale that they're going to get [a higher bid]?” In response, counsel stated that “that's the chance that everybody's going to take,” and then he returned to his argument that the final bid was well below fair market value. When the defendants' counsel was asked by the court to distinguish the present case from LaSalle Bank, N.A., which was cited by the plaintiff, he erroneously suggested that the disparity between the sale price and the fair market value in the present case was greater than the disparity in that case. The plaintiff's counsel later corrected the defendants' counsel, however, explaining that in LaSalle Bank, N.A., the court had approved a sale that had generated less than 40 percent of the foreclosed property's fair market value, which actually was a lower percentage than the 42.9 percent difference in the present case. The plaintiff's counsel also argued that the defendants had not challenged the manner in which the sale was conducted, that any further delay to hold another sale would only prejudice the plaintiff further, and that there was no evidence that another sale would yield a better outcome for the defendants.

The court granted the committee's motion for approval of the sale without explanation on November 15, 2013. This appeal followed. On January 3, 2014, the defendants filed a motion for articulation asking the trial court to state the factual and legal bases for its decision approving the sale. The court issued an articulation on February 7, 2014. Ultimately, the court concluded as follows: “In the present case, the court balanced the equities and determined equity favored approval of the sale.... As was indicated, the defendants have submitted no factual or legal claims that the procedure of the foreclosure committee and the equitable process of the court was flawed. In summary, the [defendants] did not offer any substantive argument to preclude this court's approval of the committee recommendation.” (Citation omitted.) The defendants did not seek review of the court's articulation or ask for further clarification of the court's ruling. See Practice Book §§ 66–5 and 66–7.

The defendants claim on appeal that the court abused its discretion by approving the foreclosure sale. On the basis of the record before us, we disagree.

“[T]he applicable standard of review applied to a court's approval of a committee sale is the abuse of discretion standard.... [A]n action of foreclosure is peculiarly equitable and ... the court exercises discretion in ensuring that justice [is] done.... In approving the committee sale, [t]he court must exercise its discretion and equitable powers with fairness not only to the foreclosing mortgagee, but also to ... the owners [of the foreclosed property].... Most importantly, the court possesses the authority to refuse to confirm sales upon equitable grounds where [the sales are] found to be unfair or the price bid was inadequate.” (Citation omitted; internal quotation marks omitted.) Rockville Bank v....