First Bank v. Simpson

507 A.2d 997, 199 Conn. 368, 1986 Conn. LEXIS 778
CourtSupreme Court of Connecticut
DecidedApril 15, 1986
Docket12600
StatusPublished
Cited by70 cases

This text of 507 A.2d 997 (First Bank v. Simpson) is published on Counsel Stack Legal Research, covering Supreme Court of Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
First Bank v. Simpson, 507 A.2d 997, 199 Conn. 368, 1986 Conn. LEXIS 778 (Colo. 1986).

Opinion

Shea, J.

The sole issue on this appeal is whether the holder of a second mortgage is barred from instituting an action on the underlying obligation where it did not pursue a deficiency judgment in a foreclosure action instituted by the first mortgagee. The plaintiff, First Bank, brought this action against the defendants, David A. Simpson, Helen D. Simpson, and D. Bruce Simpson, for collection of a promissory note that had been secured by five second mortgages. On cross motions for summary judgment, the trial court found in favor of the plaintiff. The defendants appealed. We find no error.

On March 17, 1983, the defendants executed a promissory note in favor of the plaintiff in the amount of $73,100. As security for the note, the defendants gave the plaintiff second mortgages on each of five condominium units they owned in North Branford. On December 23,1982, the first mortgagee of each of the five condominium units, Branford Savings Bank, instituted a series of foreclosure actions against the defendants. Branford Savings Bank joined First Bank, the second mortgagee, as a codefendant in each of the actions. Branford Savings Bank obtained a judgment of strict foreclosure and law days for redemption were established. Neither First Bank nor any of the other defendants exercised a right to redeem the property and title to the mortgaged premises became absolute in Branford Savings Bank. On September 16, 1983, First Bank instituted the present action.

Because none of the facts was in dispute, the plaintiff and the defendants filed motions for summary judgment. The defendants conceded that the note was genuine and admitted that they had declined to tender payment to the plaintiff after demand had been made. Nevertheless, the defendants claimed that they were entitled to judgment as a matter of law under [370]*370General Statutes §§ 49-11 and 49-14,2 which, they argued, require that the judgment of strict foreclosure in favor of Branford Savings Bank operate as a bar to any further action on the debts owed to any party to the foreclosure proceedings. The trial court denied the defendants’ motion for summary judgment and found in favor of the plaintiff. The defendants have appealed, claiming that the trial court erred in concluding that the provisions of General Statutes §§ 49-1 and 49-14 do not bar the plaintiffs action on the underlying note.

Under General Statutes § 49-1, a judgment of strict foreclosure extinguishes all rights of the foreclosing mortgagee on the underlying note, except those enforceable through the use of the deficiency judgment procedure delineated in General Statutes § 49-14. General Statutes § 49-14 provides, in relevant part, that [371]*371“[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.” Public Acts 1979, No. 79-110.3 Under the statute, a hearing must be held on the motion where the court “shall hear the evidence, establish a valuation for the mortgaged property and shall render judgment for the plaintiff for the difference, if any, between such valuation and the plaintiffs claim.” Practice Book § 528. Such a deficiency judgment, in light of § 49-1, is, therefore, the only available means of satisfying a mortgage debt when the security is inadequate to make the foreclosing plaintiff whole. Simsbury Bank & Trust Co. v. Ray Carlson Lumber Co., 154 Conn. 216, 219, 224 A.2d 544 (1966); see generally note, “Connecticut Mortgage Foreclosure: Deficiency Judgment and Problems of Subsequent Encumbrancers,” 2 Conn. L. Rev. [372]*372413 (1969); note, “An Act Concerning the Foreclosure of Mortgages,” 32 Conn. B.J. 200 (1958).

We agree with the defendants’ interpretation of the statutes to the extent that § 49-1 would prohibit a foreclosing first mortgagee, such as Branford Savings Bank, which had failed to avail itself of the deficiency-judgment procedure of § 49-14, from instituting any further action against the defendants. We cannot, however, construe these statutes to have the same effect with reference to further action on the underlying obligation by a nonforeclosing second mortgagee, such as First Bank.

The defendants’ argument is refuted by the express language of §§ 49-1 and 49-14. General Statutes § 49-1 provides that “the foreclosure of a mortgage is a bar to any further action upon the mortgage debt, note or obligation . . . .’’(Emphasis added.) We construe the term “mortgage debt” to refer to the mortgage of the plaintiff who initiated the foreclosure action. The defendants urge us, however, to interpret this provision as barring First Bank from bringing suit on its underlying obligation merely because it was joined as a party to the foreclosure proceedings. The judgment of strict foreclosure clearly vested absolute title in the foreclosing first mortgagee and extinguished any interest of the plaintiff in the foreclosed property. City Lumber Co. of Bridgeport, Inc. v. Murphy, 120 Conn. 16, 25, 179 A. 339 (1935). A note and the mortgage securing it are, however, separate instruments executed for different purposes. Little v. United Investors Corporation, 157 Conn. 44, 48, 245 A.2d 567 (1968). Although First Bank’s interest in the property was extinguished by the judgment of foreclosure, it did not initiate the foreclosure proceedings, and, therefore, is not prevented from proceeding independently against the defendants on the underlying note. “[T]he provisions of § 49-1, by which a foreclosure is made to bar any [373]*373further action on the note, clearly are applicable only to foreclosing plaintiffs and have no effect upon the debts of nonforeclosing subsequent encumbrancers.” Caron, Connecticut Foreclosures (Sup. 1984) p. 37.

In the hearing contemplated under § 49-14 to obtain a deficiency judgment, the court, after hearing the party’s appraisers, determines the value of the property and calculates any deficiency. This deficiency judgment procedure presumes the amount of the debt as established by the foreclosure judgment and merely provides for a hearing on the value of the property. The terms of the statute provide that if a deficiency is established, the court shall render “judgment for the plaintiff’ and that the “plaintiff in any further action upon the debt, note or obligation, shall recover only the amount of such judgment.” (Emphasis added.) We must construe “plaintiff” to refer to the plaintiff in the foreclosure action, and not, as the defendants contend, to be merely a reference to “any party” seeking a deficiency judgment. “[General Statutes §] 49-14 is . . . by its terms applicable only to claims by foreclosing plaintiffs.” Caron, Connecticut Foreclosures (1981) p. 138. The deficiency judgment procedure of § 49-14 is, therefore, inapplicable to First Bank.

The defendants claim that by interpreting § 49-14 as inapplicable to nonforeclosing second mortgagees, undue prejudice can result to mortgagors in a situation where there is sufficient equity in the property to satisfy the second mortgage, as well as all prior encumbrances. They assert that had First Bank sought a deficiency judgment it would have enabled the defendants to realize a greater price on the subsequent sale of the property.

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Bluebook (online)
507 A.2d 997, 199 Conn. 368, 1986 Conn. LEXIS 778, Counsel Stack Legal Research, https://law.counselstack.com/opinion/first-bank-v-simpson-conn-1986.