Opinion
No. CV 06 4004491S
April 21, 2008
MEMORANDUM OF DECISION
The plaintiff, Bruce Bochicchio, as administrator for the Estate of Michael Bochicchio, brought this action for a declaratory judgment, seeking that the court declare a mortgage obtained by the defendant, Porzio Law Offices, LLC, invalid as against him. On March 30, 2005, during the course of contentious divorce proceedings, Donna Bochicchio executed a promissory note and mortgage deed in favor of the defendant, in the amount of $50,000. The property encumbered by the mortgage deed, 66 Harwinton Road, Harwinton, Connecticut, was held by Donna Bochicchio and Michael Bochicchio as joint tenants. On June 15, 2005, Michael Bochicchio shot both Donna Bochicchio and Julie M. Porzio, the attorney representing Donna Bochicchio. Donna Bochicchio was killed in the attack and Julie Porzio sustained serious injuries. Michael Bochicchio then shot himself, and died a few hours later.
The defendant recorded the mortgage on January 19, 2006, on the Harwinton land records, and filed a claim for $50,000 on both the Estate of Donna Bochicchio as well as the Estate of Michael Bochicchio. It is undisputed that the Estate of Michael Bochicchio is insolvent. The plaintiff contends in his complaint "that the real property was not owned by Donna Bochicchio after her death on June 15, 2005, because said real property was held in survivorship and the recording of a mortgage on real property in which the grantor no longer has an interest is a nullity and of no legal effect." The defendant contends that the mortgage is valid against the Estate of Michael Bochicchio.
The court concluded hearings on this matter on April 3, 2008. At the hearings, the plaintiff presented the following documentary evidence: 1) a certified copy of the decree granting administration of the Estate of Michael Bochicchio to Bruce Bochicchio; 2) a certified copy of the quitclaim deed for 66 Harwinton Road, Harwinton, Connecticut, listing Donna Bochicchio and Michael Bochicchio as joint tenants; 3) a certified copy of the death certificate of Donna Bochicchio, establishing the time she was pronounced dead as 9:34 a.m. on June 15, 2005; 4) a certified copy of the death certificate of Michael Bochicchio, establishing the time he was pronounced dead as 6:30 p.m. on June 15, 2005; 5) a certified copy of the mortgage deed from Donna Bochicchio to the defendant, signed on March 30, 2005; and 6) certified copies of financial affidavits of Donna Bochicchio, produced in connection with the underlying divorce action. The court has considered all of the evidence submitted in addition to the arguments of the parties, and makes the following findings and conclusions.
Standard
"The purpose of a declaratory judgment action . . . is to secure an adjudication of rights where there is a substantial question in dispute or a substantial uncertainty of legal relations between parties." Mannweiler v. LaFlamme, 232 Conn. 27, 33, 653 A.2d 168 (1995). "The sole function of a trial court in a declaratory judgment action is to ascertain the rights of the parties under existing law." (Emphasis omitted.) Preston v. Connecticut Siting Council, 21 Conn.App. 85, 89, 571 A.2d 157, cert. denied, 215 Conn. 805, 574 A.2d 221 (1990).
"It is the well established rule that `[t]he mere fact that a party sees fit to institute an action for a declaratory judgment in no way operates to alter or shift the ordinary rules as to the burden of proof by choosing the procedure of such an action . . .'" Scott v. General Iron Welding Co., 171 Conn. 132, 139, 368 A.2d 111 (1976). Accordingly, the burden of proof rests with the plaintiff.
"[W]hile the declaratory judgment procedure may not be utilized merely to secure advice on the law . . . or to establish abstract principles of law . . . or to secure the construction of a statute if the effect of that construction will not affect a plaintiff's personal rights . . . it may be employed in a justiciable controversy where the interests are adverse, where there is an actual bona fide and substantial question or issue in dispute or substantial uncertainty of legal relations which requires settlement, and where all persons having an interest in the subject matter of the complaint are parties to the action or have reasonable notice thereof." (Citations omitted.) Milford Power Company, LLC v. Alstom Power, Inc., 263 Conn. 616, 625-26, 822 A.2d 196 (2003).
Discussion
The plaintiff argues that upon the death of Donna Bochicchio, any interest that she had in the property passed to Michael Bochicchio through survivorship, and that "the recording of a mortgage on real property in which the grantor no longer has an interest is a nullity and of no legal effect." The defendant counters by raising General Statutes § 47-14e, which provides, in relevant part: "[a] mortgage or lease executed by less than all of the joint tenants is a severance only to the extent that, upon the death of any joint tenant joining in the mortgage or lease, the mortgage or lease will continue to encumber the interest accruing to the surviving joint tenant or tenants by reason of that death." (Emphasis added.) It contends that by virtue of this statute, the mortgage continued to encumber Donna Bochicchio's interest accruing to Michael Bochicchio upon her death. It is true that by operation of § 47-14e, that a mortgage would be valid as against Michael Bochicchio by virtue of the death of his wife. General Statutes § 47-14e; see also Federal National Mortgage Assn. v. Costa, Superior Court, judicial district of Waterbury, Docket No. CV 01 29150 (May 17, 1996, Kulawiz, J.) (16 Conn. L. Rptr. 586). The issue in this case, however, is whether it is also valid as against the administrator of his estate. The plaintiff contends that because the mortgage was recorded more than seven months after the deaths of Donna Bochicchio and Michael Bochicchio, it is invalid as against the plaintiff.
The defendant has interpreted part of the plaintiff's argument to be based upon General Statutes § 47-10, and has claimed that § 47-10 is further evidence that the deed is good as against the Estate of Michael Bochicchio. General Statutes § 47-10 provides, in relevant part: "No conveyance shall be effectual to hold any land against any other person but the grantor and his heirs, unless recorded on the records of the town in which the land lies." (Emphasis added.) A mortgage is considered a conveyance of land. Second National Bank v. Dyer, 121 Conn. 263, 267, 184 A. 386 (1936).
Section 47-10 is inapplicable in this instance, as the statute limits the parties against whom such a conveyance is effectual to the grantor and his heirs. Michael Bochicchio owned the property as a joint tenant of Donna Bochicchio, thus, he does not fall into the categories delineated by § 47-10.
The defendant has cited Haskell v. Bissell, 11 Conn. 174, 176 (1836), where the court found, "[i]n this state, a grantee or mortgagee, by omitting to record his deed, does not thereby lose the estate conveyed to him, unless some other person acquires some interest in, or lien upon the property, without knowledge of the prior conveyance. As soon as the deed is recorded, it becomes effectual against any subsequent conveyance or attachment. That such is the law, when the deed is recorded in the life-time of the grantor, is well settled. Is there any difference between the effect of a deed recorded in the life-time of the grantor, and one executed in his life-time and recorded afterwards, as it regards those creditors who have acquired no specific lien upon the property? We can discover no sufficient reason for any such distinction." Haskell v. Bissell, 11 Conn. 174, 176 (1836). Under this analysis, the court held that a mortgage, recorded three years after its execution and after the death of the mortgagor, was valid as against the administrator of the mortgagor's insolvent estate.
The plaintiff's argument relies upon Sanford v. DeForest, 85 Conn. 694, 84 A. 111 (1912), which expressly overruled Haskell v. Bissell. Sanford v. DeForest, supra, 85 Conn. 701 ("The principles applied in the present case, as well as in other cases . . . are in conflict with the law as stated in Haskell v. Bissell, 11 Conn. [174], and that case is overruled"). There, the court found that a mortgage, recorded nearly two years after its execution and after the death of the mortgagor, was invalid as against the administrator of the insolvent estate. The court based its opinion on the "well-established law of this State applicable to the duties and powers of executors and administrators in the settlement of insolvent estates of deceased persons, and upon certain principles enunciated in recent decisions of this court regarding the effect of unreasonable, though not fraudulent, delay in the recording of deeds." Sanford v. DeForest, 85 Conn. 694, 697-98, 84 A. 111 (1912). Noting the "analogy between executors and administrators and trustees of insolvent estates and receivers of corporations," the court relied upon In re Wilcox Howe Co., 70 Conn. 220, 234, 39 A. 163 (1898), where "a mortgage, not duly recorded, was not valid against the receiver of a corporation." Id., 699. The court also stated its reliance upon Newtown Savings Bank v. Lawrence, 71 Conn. 358, 41 A. 1054 (1899), where it was held that a mortgage, not recorded, was invalid against a trustee in insolvency. Id.
The controlling question in [ Newtown Savings Bank v. Lawrence, supra, 71 Conn. 358,] was whether, notwithstanding the failure to record the mortgage deed, the plaintiff had a valid mortgage title as against the trustee in insolvency. In holding that it had not, we said that the rights of creditors to avail themselves of this property by attachment had been suspended by the appointment of the trustee; that by the insolvency proceedings the property was placed in the hands of the law, which, through the medium of the trustee and of the Court of Probate, furnished another method for appropriating the property in question for the payment of [the mortgagor's] creditors, and one by which all the previous rights of creditors to take the property by attachment could be enforced; and that the trustee appointed, became the agent of the law and the representative of the creditors of the insolvent.
The steps which the law requires to be taken by executors and administrators and the Court of Probate in the settlement of the insolvent estates of deceased persons are insolvency proceedings, having the same object as the statutory insolvent proceedings conducted under a trustee in insolvency, namely, the equal distribution among the insolvent's creditors of what the law regards as his estate available for the payment of his debts; and the principles, which . . . we applied to trustees in insolvency and to receivers of corporations, are equally applicable to executors and administrators in the settlement of the insolvent estates of deceased persons.
Sanford v. DeForest, supra, 85 Conn. 700.
The court agrees that Sanford v. DeForest is controlling in this case. The defendant attempts to distinguish Sanford on several grounds. First, the defendant points out that in Sanford, the court's reason for holding the mortgage invalid was that the mortgagee held it for two years without recording it in order to accommodate the mortgagor. The defendant argues that here, the mortgage was not recorded due to a protracted divorce trial, coupled with the shooting of Julie Porzio. This distinction is not relevant to the analysis as set forth in Sanford, which focused on the administrator's rights and responsibilities under the law as opposed to emphasizing the reason for the delay in recording. See Sanford v. DeForest, supra, 85 Conn. 699-700.
The defendant also distinguishes Sanford on the grounds that, in that case, the mortgagor was insolvent during his lifetime, whereas the insolvency of the Estate of Michael Bochicchio occurred after his death. This distinction is immaterial. "[I]n our own statutes, the term `insolvent estates' is used to include estates of living and deceased insolvents, and in chapter 28 of the General Statutes we find, under the title `claims against insolvent estates,' a series of provisions covering the appointment of commissioners to receive and decide upon the claims of creditors, the limitation of time for exhibiting claims, the character of claims which are allowable, the consequence of failure to seasonably exhibit claims, the commissioners' report of claims presented, allowed and disallowed, and the proceedings to be taken when a creditor has security for his claim. In all these provisions the term "insolvent estate" is used to include estates of deceased, as well as of living, debtors, and the result is that substantially the entire statutory proceedings relating to the distribution of insolvent estates among creditors apply indiscriminately to both classes of estates." New Milford Security Co. v. Windham County National Bank, 90 Conn. 323, 327-28, 97 A. 428 (1916). The estate is, admittedly, insolvent, and therefore Sanford is applicable.
The final factor that the defendant cites to distinguish Sanford is that the case involved an administrator of the mortgagor was seeking to have the mortgage declared invalid for the benefit of the mortgagor's creditors. Here, it is the administrator of Michael Bochicchio who is seeking to have the mortgage declared invalid, not to benefit the mortgagor's creditors — in this case Donna Bochicchio's creditors — but to benefit Michael Bochicchio's creditors. "The duty of an administrator is to the heirs and creditors of the estate." Jaser v. Fischer, 65 Conn.App. 349, 356, 783 A.2d 28 (2001). The duty of the administrator to Michael Bochicchio's creditors regarding the mortgage is no different than the duty involved in Sanford.
The mortgage at issue is invalid as against the administrator of the Estate of Michael Bochicchio. Accordingly, the court finds in favor of the plaintiff.