Northeast Sav., F.A. v. Hopkins

• Decision Date: 24 July 1990
• Docket Number: No. 8490,8490
• Citation: 22 Conn.App. 396,578 A.2d 136
• Court: Connecticut Court of Appeals
• Parties: NORTHEAST SAVINGS, F.A. v. Jean HOPKINS et al.

Page 136

578 A.2d 136

22 Conn.App. 396

NORTHEAST SAVINGS, F.A. v. Jean HOPKINS et al.

No. 8490.

Appellate Court of Connecticut.

Argued April 3, 1990.

Decided July 24, 1990.

Jeffrey A. Nirenstein, with whom, on the brief, was Judith F. Machuga, for appellant (named defendant).

Kevin J. Burns, for appellee (plaintiff).

Before DUPONT, C.J., and DALY and NORCOTT, JJ.

DALY, Judge.

This is an appeal by the named defendant, Jean Hopkins, trustee, (hereinafter defendant) from the judgment of the trial court approving a foreclosure by sale of property owned by the defendant. The defendant claims that the court (1) should not have denied her "motion to reopen the foreclosure by sale and to extend the law day," ¹ and (2) should not have approved the committee's sale and deed. We affirm the judgment of the trial court.

The plaintiff, Northeast Savings, F.A., instituted this foreclosure action against the defendant, ² seeking to foreclose its second mortgage on the defendant's property in Meriden. On March 16, 1989, the court, M. Hennessey, J., granted a motion for foreclosure by sale filed by the defendant Yale-New Haven Hospital. On that date, the court also found that the debt secured by this mortgage was $40,236.48, plus costs. The sum included attorney's fees. The court appointed a committee and three appraisers pursuant to General Statutes § 49-25, and ordered a foreclosure by sale to take place on August 5, 1989. The property was subsequently found to have a value of $195,000 after the three appraisals placed a value of $197,000, $175,000 and $195,000.

Before the sale, the defendant filed a "motion to reopen the judgment of foreclosure by sale and to extend law day" on July 13, 1989. Included with this motion was an affidavit of the defendant in support of her motion. The court, Gaffney, J., denied the motion on July 27, 1989.

On the sale date, four registered bidders and approximately sixteen additional persons attended the auction. After clarification that the property was being sold subject to the first mortgage of $56,886.60, plus per diem interest charges, also held by the plaintiff, as well as other liens, the bidding proceeded to a high bid of $68,500. That bid aggregated to a selling price of $128,782.04.

Following the committee's motions to accept its report and approve the sale and deed, the defendant and another defendant, Michael J. Hopkins, subsequently filed a motion to reject the committee sale. The court heard oral argument on these motions, including reference by the defendant to two letters dated August 30, 1989, from Fairbank Mortgage Company concerning a refinancing plan for the property. The trial court, McWeeney, J., subsequently approved the committee sale. Following appeal, the trial court's reasons for approving the sale were articulated in response to the defendant's motion for articulation. Practice Book § 4051.

I

The defendant first claims that the court abused its discretion when it denied her "motion to reopen the foreclosure by sale and to extend the law day." We conclude that although this motion was timely filed and the trial court had jurisdiction to hear this motion, ³ we need not review this claim because the defendant has not presented an adequate record for review. See State v. Cates, 202 Conn. 615, 625, 522 A.2d 788 (1987); United Church of Christ v. West Hartford, 9 Conn.App. 448, 456, 519 A.2d 1217 (1987), aff'd, 206 Conn. 711, 539 A.2d 573 (1988). Although there is some indication in the record that this motion was argued before Judge Gaffney, the trial court that denied the motion, the defendant filed no transcript of this proceeding. In addition, the defendant filed no motion for articulation of the court's denial of her motion.

II

The defendant next claims that the court should not have approved the committee sale. We disagree.

First, the defendant argues that the court failed to consider appropriately the following three factors: (1) her ability to pay the debt; (2) the value of the mortgaged property as compared with the amount of the debt; and (3) the depressed real estate market that rendered it difficult to sell the property privately in a short period of time. The defendant relies primarily on the following language in Metropolitan Life Ins. Co. v. Bassford, 120 Conn. 384, 389, 180 A. 692 (1935), to support her claim that the court must consider these three factors: "Under the practice in this State, the determination of the time to be allowed for redemption by the owner of the equity rests in the legal discretion of the court. The court will have regard for the value of the mortgaged premises as compared with the amount of the debt, and exercise its discretion in view of all the circumstances of the case so as to prevent a sacrifice of the property. 2 Swift's Digest, 197. It may properly consider economic conditions which render it difficult to dispose of the property...."

The record does not support the defendant's claim that the court failed to consider appropriately these three factors. In its articulation, the court, McWeeney, J., specifically indicated that it had considered the existence of a poor real estate market and concluded that a subsequent sale would incur greater expenses and might not realize any greater net proceeds. It also considered the value of the mortgaged premises as compared to the debt in view of all of the circumstances when it concluded that the amount received from the committee sale essentially satisfied the amount of the debt. In addition, the court specifically indicated that it had considered the defendant's evidence of the refinancing plan from Fairbank Mortgage Company, but concluded that "[i]n view of the previous unsuccessful attempts by the appellants to resolve this situation and the conditional nature of the 'commitment'; there was no substantial basis to justify the expense and delay involved in rejecting the committee's report and sale." The defendant also argued that the court should not have found that the "commitment" to refinance the premises was conditional. On the basis of our review of the record, we conclude that this finding was not clearly erroneous. See Practice Book § 4061. The trial court has appropriately considered these equities and has not abused its discretion.

The defendant also argues that the trial court abused its discretion in confirming the committee sale because the bid price of $68,500 was not adequate. "Because the trial court has control of the foreclosure proceedings, it can, in the exercise of its discretion, accept or reject a proposed sale." Fidelity Trust Co. v. Irick, 206 Conn. 484, 490, 538 A.2d 1027 (1988). " ' "[A] court of equity in a foreclosure suit would have full authority to fix the terms and time of the foreclosure sale and to refuse to confirm sales upon equitable grounds where they were found to be unfair or the price bid was inadequate ..." ' Id., quoting Honeyman v. Jacobs, 306 U.S. 539, 543, 59 S.Ct. 702, 83 L.Ed. 972 (1938)." Danbury Savings...