Dime Savings Bank of New York v. Grisel

650 A.2d 1246, 650 A.2d 410, 36 Conn. App. 313, 1994 Conn. App. LEXIS 424
CourtConnecticut Appellate Court
DecidedDecember 13, 1994
Docket13224
StatusPublished
Cited by13 cases

This text of 650 A.2d 1246 (Dime Savings Bank of New York v. Grisel) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dime Savings Bank of New York v. Grisel, 650 A.2d 1246, 650 A.2d 410, 36 Conn. App. 313, 1994 Conn. App. LEXIS 424 (Colo. Ct. App. 1994).

Opinion

Foti, J.

The plaintiff appeals from the judgment of the trial court approving a foreclosure by sale of property owned by the named defendant et al.1 The plain[315]*315tiff alleges that the trial court acted improperly by failing (1) to follow the mandates of General Statutes § 49-25,2 (2) to find the actions of the committee of sale improper in its refusal to reopen the bidding process, and (3) to disapprove of the foreclosure sale because it resulted in an inequity. We reverse the judgment in part.

The following facts are relevant to this appeal. The plaintiff commenced this action to foreclose its mortgage on property located in Chaplin. A judgment of foreclosure by sale was rendered on April 19,1993. The value of the property was found to be $170,000 and the debt was found to be $139,728.72. The foreclosure sale was ordered to take place at the premises on July 10, 1993, at noon. A committee of sale was appointed and an appraiser was also appointed to prepare an appraisal, which was to be filed with the clerk of the court by June 1,1993. The court further ordered that [316]*316bidders be required to deposit $17,000 in the form of a bank check or certified check with the committee. The plaintiff was excused from that requirement.

On the date of the sale, the committee began the auction at noon. Although approximately twenty-two people arrived to inspect the property, only Gary R. DeMayo registered with the committee as a bidder and submitted his deposit check. His was the only bid, at $30,000. There being no other bids, the committee accepted DeMayo’s bid, closed the bidding and concluded the sale. At approximately 12:10 p.m., the plaintiff’s attorney arrived and requested that he be permitted to submit a bid on behalf of the plaintiff. The committee refused the request. At that time, the successful bidder, DeMayo, was in the process of executing a bond for deed with the committee.

On January 3,1993, a hearing was held on the committee’s motions seeking approval of the sale, deed and report, along with an allowance for committee’s fees and expenses. The plaintiff, prior to this hearing, filed an objection to the committee’s motions. The plaintiff noted that its attorney had arrived late because he was unable to locate the property, that the bid accepted was inadequate compared to the value of the property that had previously been found to be $170,000, and that the plaintiff was prepared to bid $101,000 in the event a resale was ordered.

The trial court confirmed the sale. No current appraisal report had been filed with the court at that time. The record is clear that the trial court did not have such an appraisal, as ordered pursuant to § 49-25, on the date that the sale was confirmed.3

[317]*317I

The plaintiff first claims that the trial court failed to obtain an appraisal of the subject property as required by § 49-25, thereby having no basis for determining the fairness of the single bid accepted by the committee. DeMayo concedes that the trial court did not have the benefit of the appraisal report required by § 49-25, but argues that there was, nonetheless, sufficient evidence by which the court could determine whether to approve the sale. DeMayo points to two previous appraisals indicating values of $180,000 and $170,000. He notes that the house had a dirt cellar containing various animals, that the attic contained bats, and that, despite extensive efforts to attract buyers, only one bid of $30,000 was submitted. From this, he concludes that a property is worth only what a prospective purchaser is willing to pay for it, and that the court was justified in determining that the actual value of the property was closer to $30,000 than to $170,000. We do not agree with DeMayo’s reasoning that, under these circumstances, the sale price was determinative of value and the appraisal required pursuant to § 49-25 need not have been utilized by the court.

As a preliminary matter, we note that this claim by the plaintiff was not raised before the trial court. As a general rule, we will not consider a claim on appeal that was not distinctly raised at the trial level. Sarad[318]*318jian v. Saradjian, 25 Conn. App. 411, 419, 595 A.2d 890 (1991). The plaintiff, however, asks that we review this claim under the plain error doctrine. “Plain error is reserved for instances where the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. . . . Our Supreme Court has stated that a trial court’s failure to follow the mandatory provisions of a statute prescribing trial procedures . . . constitutes plain error.” (Citation omitted.) State v. Robins, 34 Conn. App. 694, 706, 643 A.2d 881 (1994). The plain error doctrine is properly invoked in this case.

Section 49-25 provides in relevant part that in a foreclosure by sale “the court shall appoint one disinterested appraiser who shall, under oath, appraise the property to be sold .... Upon motion of the owner of the equity of redemption, the court shall appoint a second appraiser in its decree. ...” While an appraisal under the statute is not conclusive as to the value of the property for purposes of fixing the amount of a deficiency; Cronin v. Gager-Crawford Co., 128 Conn. 688, 692, 25 A.2d 652 (1942); it serves to assist the court in determining whether to approve the sale as one that fairly realized the value of the property. Bryson v. Newton Real Estate & Development Corp., 153 Conn. 267, 274, 216 A.2d 176 (1965). While the trial court is not bound to accept the appraised value; Dan-bury Savings & Loan Assn., Inc. v. Hovi, 20 Conn. App. 638, 641, 569 A.2d 1143 (1990); it may assist the trial court in the exercise of its discretion, in accepting or rejecting a proposed sale. See Fidelity Trust Co. v. Irick, 206 Conn. 484, 490, 538 A.2d 1027 (1988).

The trial court in a foreclosure matter acts as a court of equity and has full authority to refuse to confirm a sale on equitable grounds where an unfairness has taken place or where the price bid was inadequate. Id.; see also Citicorp Mortgage, Inc. v. Burgos, 227 Conn. [319]*319116, 121-23, 629 A.2d 410 (1993). The court must exercise its discretion and equitable powers with fairness not only to the foreclosing mortgagee, but also to subsequent encumbrancers and the owners. Farmers & Mechanics Savings Bank v. Sullivan, 216 Conn. 341, 354, 579 A.2d 1054 (1990). The appraisal procedure provided by § 49-25 performs the function of giving the trial court guidance on the question of whether to approve the sale. New England Savings Bank v. Lopez, 227 Conn.

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Bluebook (online)
650 A.2d 1246, 650 A.2d 410, 36 Conn. App. 313, 1994 Conn. App. LEXIS 424, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dime-savings-bank-of-new-york-v-grisel-connappct-1994.