Federal Deposit Insurance v. Retirement Management Group, Inc.

623 A.2d 517, 31 Conn. App. 80, 1993 Conn. App. LEXIS 188
CourtConnecticut Appellate Court
DecidedApril 20, 1993
Docket10668
StatusPublished
Cited by47 cases

This text of 623 A.2d 517 (Federal Deposit Insurance v. Retirement Management Group, Inc.) 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
Federal Deposit Insurance v. Retirement Management Group, Inc., 623 A.2d 517, 31 Conn. App. 80, 1993 Conn. App. LEXIS 188 (Colo. Ct. App. 1993).

Opinion

Freedman, J.

The defendants1 appeal from the deficiency judgment rendered by the trial court pursuant to General Statutes § 49-14 in this mortgage foreclosure action. The defendants claim that (1) the trial court lacked jurisdiction to render the deficiency judgment because the motion for a deficiency judgment was not filed by a party within the time period set forth in § 49-14 (a),2 (2) the trial court could not permit a substitute plaintiff to enter the case after title to the real property had vested in another party pursuant to the judgment of strict foreclosure, (3) the substitute plaintiff failed to prove that it was the owner of the claim that was the subject of the judgment of strict foreclosure, and (4) the trial court improperly limited the deficiency proceeding to a determination of the value of the property at the time title passed, excluding evidence concerning the mortgage holder’s delay in pursuing the judgment of strict foreclosure. We affirm the judgment of the trial court.

[82]*82On or about August 31,1990, the Connecticut Bank and Trust Company, N.A. (CBT), commenced this action alleging, inter alia, the nonpayment of two promissory notes and seeking to foreclose certain mortgages that CBT held on real property located in Bran-ford. Shortly after the return of this matter to the Superior Court on October 2, 1990, the defendants informed CBT of their willingness to consent to a judgment of strict foreclosure. CBT proceeded to secure defaults and filed its motion for judgment of strict foreclosure on November 14,1990. The defendants filed a disclosure of no defenses and consent to entry of strict foreclosure on December 18, 1990.

On January 6, 1991, the Federal Deposit Insurance Corporation (FDIC) was named as CBT’s receiver. On that day, FDIC, acting as CBT’s receiver, transferred virtually all of CBT’s assets to the New Connecticut Bank and Trust Company, N.A. (New CBT).

On January 28, 1991, a hearing was conducted on CBT’s motion for strict foreclosure. At the hearing, CBT moved to substitute FDIC as the plaintiff, alleging that FDIC was the holder of the notes and mortgages. That assertion was, however, incorrect since CBT’s assets, including the notes and mortgages that are the subject of this action, had been assigned by FDIC to New CBT. Nonetheless, FDIC was substituted as plaintiff without objection. Thereafter, the court rendered a judgment of strict foreclosure, determined the amount of the debt and set February 20, 1991, as the first law day.

On February 19, 1991, FDIC filed a motion to substitute New CBT as the plaintiff. Thereafter, on February 27, 1991, title to the property vested in FDIC pursuant to the judgment of strict foreclosure. At that time, the motion to substitute New CBT as the plaintiff had not yet been heard.

[83]*83A motion for deficiency judgment was filed on March 14, 1991. In its body, the motion recited that the plaintiff was New CBT, the assignee of FDIC, the receiver for CBT.

On June 26, 1991, the trial court, over the defendant’s objection, granted the motion to substitute New CBT as plaintiff for purposes of the deficiency proceeding. The trial court then began hearing evidence regarding the motion for deficiency judgment. Further evidence was taken on June 27 and July 9, 1991. On July 11,1991, FDIC dissolved New CBT and appointed itself as receiver of New CBT. On September 3,1991, FDIC moved to be substituted in its capacity as receiver of New CBT as the plaintiff in place of New CBT. On September 12, 1991, the court granted the motion to substitute FDIC as plaintiff and rendered a deficiency judgment against the defendants in the amount of $1,276,752.06. This appeal followed.

General Statutes § 49-1 provides that “[t]he foreclosure of a mortgage is a bar to any further action upon the mortgage debt, note or obligation against the person or persons who are liable for the payment thereof who are made parties to the foreclosure . . . .” General Statutes § 49-14 furnishes an exception to § 49-1 by providing that, “[a]t 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 defendants assert that because the motion for a deficiency judgment was filed by New CBT on March 14,1991, when New CBT was not yet a party to the proceedings, no party to the proceedings sought a deficiency judgment within thirty days after the time limited for redemption had expired, and, therefore, the trial court lacked the authority to grant a deficiency judgment in this action. We disagree.

[84]*84The defendants correctly point out that strict compliance with the procedural requirements of § 49-14 is required in order to permit the trial court to render a deficiency judgment in a mortgage foreclosure action. See Simsbury Bank & Trust Co. v. Ray Carlson Lumber Co., 154 Conn. 216, 224 A.2d 544 (1966); People’s Holding Co. v. Bray, 118 Conn. 568, 173 A. 233 (1934). Our rules of practice, however, permit the substitution of parties as the interests of justice require. General Statutes §§ 52-108, 52-109; Practice Book §§ 100, 101; see also United States Trust Co. v. DiGhello, 179 Conn. 246, 247 n.1, 425 A.2d 1287 (1979); Hagearty v. Ryan, 123 Conn. 372, 195 A. 730 (1937); Wickes Mfg. Co. v. Currier Electric Co., 25 Conn. App. 751, 760-61, 596 A.2d 1331 (1991). These rules are to be construed so as to alter the harsh and inefficient result that attached to the mispleading of parties at common law. See Hagearty v. Ryan, supra, 375-76. General Statutes § 52-108 and Practice Book § 100 provide that “no action shall be defeated by the nonjoinder or misjoinder of parties.” General Statutes § 52-109 and Practice Book § 101 allow a substituted plaintiff to enter a case “[w]hen any action has been commenced in the name of the wrong person as plaintiff . . . .” Both rules, of necessity, relate back to and correct, retroactively, any defect in a prior pleading concerning the identity of the real party in interest. In the context of analogous rules of federal civil procedure, it has been observed that “[wjhere the change is made on the plaintiffs side to supply an indispensable party or to correct a mistake in ascertaining the real party in interest, in order to pursue effectively the original claim, the defendant will rarely be unfairly prejudiced by letting the amendment relate back to the original pleading.” F. James & G. Hazard, Civil Procedure (2d Ed. 1977) § 5.7, pp. 167-68. “As long as [the] defendant is fully apprised of a claim arising from specified conduct and [85]*85has prepared to defend the action, his ability to protect himself will not be prejudicially affected if a new plaintiff is added, and he should not be permitted to invoke a limitations defense. . . . Thus, an amendment substituting a new plaintiff [will] relate back if the added plaintiff is the real party in interest.” 6A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 1501, pp. 154-57; see also Health Research Group v. Kennedy, 82 F.R.D. 21 (D.D.C.

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Bluebook (online)
623 A.2d 517, 31 Conn. App. 80, 1993 Conn. App. LEXIS 188, Counsel Stack Legal Research, https://law.counselstack.com/opinion/federal-deposit-insurance-v-retirement-management-group-inc-connappct-1993.