Smith v. GMAC Mortgage Corp., 49 Conn. Sup. 43 (CT 7/8/2004)

Decision Date08 July 2004
Docket NumberFile No. CV-03 0399542S.
CourtConnecticut Supreme Court
PartiesROBERT F. SMITH, JR., ET AL. <I>v.</I> GMAC MORTGAGE CORPORATION.

Gallagher Law Firm, for the plaintiffs.

Tyler, Cooper & Alcorn, for the defendant.

LEVIN, J.

General Statutes § 49-8 (c) provides that when a mortgagee fails, after request, to release a mortgage that has been paid, the mortgagee "shall be liable for damages to any person aggrieved . . . up to a maximum of five thousand dollars . . . ." The issue before the court on the parties' cross motions for summary judgment is whether this limit may be multiplied where there is more than one aggrieved person. The court holds that it may not.

The facts are not in dispute. On December 14, 2000, the plaintiffs, Robert F. Smith, Jr., and Jeanette L. Mockalis, obtained a home equity line of credit from the defendant, GMAC Mortgage Corporation, and executed an open-end mortgage securing the line of credit. The mortgage was recorded on the land records. On December 26, 2001, the plaintiffs paid off the loan and provided the defendant with a signed copy of their request to release the mortgage securing the line of credit. The defendant deposited the plaintiffs' check, but did not provide them with a release of the mortgage.

On January 13, 2003, the plaintiffs filed a two-count complaint. The first count is based on § 49-8 (c) and seeks $10,000 in damages, $5000 for each of the plaintiffs. The second count alleges a violation of the Connecticut Unfair Trade Practices Act and is not now before the court.

The defendant has moved for partial summary judgment on the first count of the complaint on the ground that pursuant to § 49-8 (c), "the plaintiffs together are entitled to a total sum of $5,000 plus a reasonable attorney's fee to be established by the court plus costs." The defendant has stipulated that it failed "to execute and deliver a release of the mortgage alleged in the complaint after receiving full payment . . . and a request for release." It argues, however, that its liability for statutory damages is limited to $5000. The plaintiffs have also moved for partial summary judgment on the ground that each of them is aggrieved, and, therefore, entitled to the maximum statutory amount of $5000, or a total of $10,000, plus costs and attorney's fees.

"Practice Book § [17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.. . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. Practice Book § [17-46]." (Citations omitted; internal quotation marks omitted.) Lombardo's Ravioli Kitchen, Inc. v. Ryan, 268 Conn. 222, 237, 842 A.2d 1089 (2004). Here, there are no issues of fact; the issue is purely one of statutory construction, a question of law. See Grondin v. Curi, 262 Conn. 637, 649, 817 A.2d 61 (2003).

Preliminarily, it is helpful to review the statutory antecedents to § 49-8 (c). The origin of § 49-8 (c) dates back to the nineteenth century when mortgagors could file "a petition in chancery to redeem the mortgaged premises.. . ." (Citations omitted.) Gordon v. Tobias, Superior Court, judicial district of New Haven, Docket No. 438895 (June 28, 2001) (Blue, J.), aff'd, 262 Conn. 844, 817 A.2d 683 (2003). They could also assert "a common law cause of action [for damages] in the nature of a breach of contract based upon [their] covenant or agreement contained in the mortgage." Skorpios Properties, Ltd. v. Waage, 172 Conn. 152, 155, 374 A.2d 165 (1976). "In 1869, the legislature created an additional, statutory remedy. Upon payment, a mortgagor could deliver a written request for a release, and, upon the willful neglect or refusal to do so for thirty days, the mortgagee would forfeit the sum of five dollars per week. [Public Acts 1869, chap. 16.]" (Internal quotation marks omitted.) Gordon v. Tobias, supra, Superior Court, Docket No. 438895.

The provision that the person failing, upon payment and written request, to release a mortgage pay "to any person aggrieved five dollars for each week" of such failure remained in the statute until 1969. General Statutes (Rev. to 1958) § 49-8. In 1969, the legislature raised the penalty to fifty dollars per week "but not exceeding in the whole the sum of one thousand dollars." Public Acts 1969, No. 595. In 1979, the legislature increased the weekly payment to $100 "but not exceeding in the whole the sum of five thousand dollars . . . ." Public Acts 1979, No. 79-10. The 1979 act also confirmed that a common law action for damages survived, as the court had held previously in Skorpios Properties, Ltd. v. Waage, supra, 172 Conn. 156. In 1989, the legislature increased the weekly payment to $200 and removed the cap of $5000 as the maximum statutory amount. Public Acts 1989, No. 89-347, § 18. In 1995, the legislature reimposed the $5000 cap. Public Acts 1995, No. 95-102, § 1 (c).

As amended in 1995, subsection (c) of § 49-8 now provides: "The mortgagee or plaintiff or the plaintiff's attorney, as the case may be, shall execute and deliver a release within sixty days from the date a written request for a release of such encumbrance (1) was sent to such mortgagee, plaintiff or plaintiff's attorney at the person's last-known address by registered or certified mail, postage prepaid, return receipt requested or (2) was received by such mortgagee, plaintiff or plaintiff's attorney from a private messenger or courier service or through any means of communication, including electronic communication, reasonably calculated to give the person the written request or a copy of it. The mortgagee or plaintiff shall be liable for damages to any person aggrieved at the rate of two hundred dollars for each week after the expiration of such sixty days up to a maximum of five thousand dollars or in an amount equal to the loss sustained by such aggrieved person as a result of the failure of the mortgagee or plaintiff or the plaintiff's attorney to execute and deliver a release, whichever is greater, plus costs and reasonable attorney's fees."1 (Emphasis added.)

In an effort to access readily what it considers legislative history helpful to its cause, the defendant invokes State v. Courchesne, 262 Conn. 537, 816 A.2d 562 (2003), in which the Supreme Court eschewed the "plain meaning rule" of statutory construction, the rule that courts will not look to sources of legislative intent beyond the text of the statute in question where the meaning of the statute is plain and unambiguous. The rule in Courchesne, however,2 was promptly overturned by the General Assembly in Public Acts 2003, No. 03-154, which provides: "The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered."

"Since it is competent for the legislature to provide rules for the construction of statutes, a statute governing the construction of statutes will be given effect." 82 C.J.S. 390, Statutes § 308 (1999); see, e.g., General Statutes §§ 1-1 through 1-1g. Therefore, pursuant to Public Act 03-154, the court first determines whether the meaning of § 49-8 (c) is plain and unambiguous. "The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation." Carmel Hollow Associates Ltd. Partnership v. Bethlehem, 269 Conn. 120, 134 n.19, 848 A.2d 451 (2004).

The plaintiffs focus on the words "any person" in the phrase "any person aggrieved" in § 49-8 (c) and argue that those words connote that any one of several persons may seek the statutory payment provided by the statute, each one to the maximum of $5000. The defendant, on the other hand, argues that all mortgagors must be treated as one for purposes of the $5000 limit and that as a group they are entitled to payment "up to a maximum of five thousand dollars . . . ."

"In interpreting statutes that contain the word `any,' we have recognized that `any' can have a variety of meanings. . . . The word `any' can be used to denote `all,' `every,' `some' or `one.'" (Citations omitted.) Industrial Risk Insurers v. Hartford Steam Boiler Inspection & Ins. Co., 258 Conn. 101, 117, 779...

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