§ 49-13 — Petition for discharge of mortgage or ineffective attachment, lis pendens or lien.

Connecticut § 49-13

• Jurisdiction: Connecticut
• Title 49: Mortgages and Liens
• Ch. 846: Mortgages

Text

(a) When the record title to real property is encumbered (1) by any undischarged mortgage, and (A) the mortgagor or those owning the mortgagor's interest therein have been in undisturbed possession of the property for at least six years after the expiration of the time limited in the mortgage for the full performance of the conditions thereof, and for six years next preceding the commencement of any action under this section, or (B) the promissory note or other written evidence of the indebtedness secured by the mortgage is payable on demand and seventeen years have passed without any payment on account of such note or other written evidence of indebtedness, or (C) the mortgage does not disclose the time when the note or indebtedness is payable or disclose the time for full performance of the conditions of the mortgage and ten years have passed without any payment on account of the promissory note or other written evidence of indebtedness, or (D) the note or evidence of indebtedness has been paid or a bona fide offer and tender of the payment has been made pursuant to section 49-8, or (E) the mortgage has become invalid, and in any of such cases no release of the encumbrance to secure such note or evidence of indebtedness has been given, or (2) by a foreclosed mortgage and the mortgagor has made a bona fide offer and tender of payment of the foreclosure judgment on or before the mortgagor's law day and the mortgagee has refused to accept payment, or (3) by an attachment, lis pendens or other lien which has become of no effect, the person owning the property, or the equity in the property, may bring a petition to the superior court for the judicial district in which the property is situated, setting forth the facts and claiming a judgment as provided in this section. The plaintiff may also claim in the petition damages as set forth in section 49-8 if the plaintiff is aggrieved by the failure of the defendant to execute the release prescribed in said section. (b) The petition shall be served upon all persons interested in the mortgage, attachment, lis pendens or other lien in the manner provided by law for process in civil actions and, in any action where the parties who may have an interest in the property and should be made parties thereto cannot be located by and are unknown to the petitioner in the action, the petitioner or the petitioner's attorney shall annex to the petition in the action an affidavit stating that the petitioner does not know who the interested parties are or where they reside, or, if the party interested in the property is a corporation whose corporate existence has been legally terminated, or the corporation is no longer in existence or doing business, and the petitioner or the petitioner's attorney states that fact in an affidavit, the court to which the action is brought or the clerk, assistant clerk or any judge thereof may make such order relative to the notice which shall be given in the cause as the court, clerk, assistant clerk or judge deems reasonable. (c) Such notice having been given according to the order and duly proven, the court may proceed to a hearing of the cause at such time as it deems proper, and, if no evidence is offered of any payment on account of the debt secured by the mortgage within a period set out in subsection (a) of this section, or of any other act within such a period as provided in said subsection (a) in recognition of its existence as a valid mortgage, or if the court finds the mortgage has been satisfied but no release given as evidence of such satisfaction, or if the court finds that a bona fide offer and tender of payment of the foreclosure judgment or mortgage has been made and refused, or if the court finds the attachment, lis pendens or other lien has become of no effect, the court may render a judgment reciting the facts and its findings in relation thereto and declaring the mortgage, foreclosure judgment, attachment, lis pendens or other lien invalid as a lien against the real estate, and may order payment of any balance of indebtedness due on the mortgage or foreclosure judgment to the clerk of the court to be held for the benefit of the mortgagee or the persons interested and to be paid to the mortgagee by the clerk of the court upon application of the mortgagee or persons interested following the execution of a release of mortgage. (d) Upon deposit of the balance of indebtedness with the clerk, such judgment shall issue, which judgment shall, within thirty days thereafter, be recorded in the land records of the town in which the property is situated, and the encumbrance created by the mortgage, foreclosure judgment, attachment, lis pendens or other lien shall be null and void and totally discharged. The town clerk of the town in which the real estate is situated shall, upon the request of any person interested, record a discharge of such encumbrance in the land records. See Sec. 7-34a re town clerks' fees.

Legislative History

(1949 Rev., S. 7123; 1959, P.A. 425; 1969, P.A. 595, S. 2; 1971, P.A. 536; P.A. 78-280, S. 2, 127; P.A. 79-602, S. 72; P.A. 95-102, S. 4; P.A. 03-74, S. 1; P.A. 09-213, S. 5.) History: 1959 act added provision re invalidity of mortgage as lien against real estate when title remains encumbered by undischarged mortgage and mortgagor or those owning his interest have been in possession of property for 60 years after time limited in mortgage for performance of its conditions; 1969 act clarified provisions re passage of 17 years, re failure to give release and re attachments, lis pendens or other liens of no effect and deleted provision added by 1959 act; 1971 act added provisions re foreclosure and clarified provisions re court action; P.A. 78-280 replaced “county” with “judicial district”; P.A. 79-602 divided section into Subsecs. and restated provisions but made no substantive changes; P.A. 95-102 changed requirement of undisturbed possession from 17 to 6 years and made technical changes; P.A. 03-74 amended Subsec. (a)(1)(C) by changing time period from 17 years to 10 years and made technical changes; P.A. 09-213 amended Subsec. (d) to replace requirement that town clerk “endorse on the record of the encumbrance or lien the words ‘discharged by judgment of the Superior Court’, and list the volume and page number in the land records where the judgment is recorded” with requirement that town clerk “record a discharge of such encumbrance in the land records”. Does not declare mortgage invalid, merely gives court right to declare it invalid under proper circumstances; section is not a statute of limitations. 131 C. 38. Plaintiff held entitled to have mortgage declared invalid. 134 C. 420. Cited. 140 C. 474. Statute does not apply to those who recognize existence and validity of encumbering mortgage. 156 C. 49. When release of lis pendens is inequitable. 162 C. 26. Procedure used by defendant in seeking to have lis pendens discharged and the granting by the court of defendant's motion does not meet the essential conditions prescribed. 165 C. 675. Cited. 188 C. 477; 223 C. 419. It is 6 years of undisturbed possession that is crucial to obtaining relief under section, not 6 years of possession by one owner; therefore tacking prior owner's period of possession to party's period of possession is permitted to fulfill the 6-year requirement. 81 CA 808. The time referenced in Subsec. (a)(1)(A) is the maturity date specified in the confines of the mortgage. 173 CA 686. Cited. 16 CS 257. Subsec. (c): Because plaintiffs' properties were not encumbered by the notices of lis pendens, they could not properly invoke court's authority under Subsec. to discharge the lis pendens as liens against the properties. 77 CA 276.