Opinion
No. CV 03 0399404 S
July 8, 2003
RULING ON APPLICATION FOR PROTECTION FROM FORECLOSURE
STATEMENT OF THE CASE
This is an action instituted by the plaintiff Home Loan Investment Bank, F.S.B. seeking to foreclose a mortgage executed by the defendants Neola Wood and James E. Wood. The defendants have filed an application for protection from foreclosure under the provisions of General Statutes §§ 49-31d et seq. The plaintiff has objected to this motion. For the following reasons, the application is denied and the objection is sustained.
The following facts are not in dispute. On February 20, 2001, the defendants, Neola Wood and James E. Wood, executed a note in the principal amount of $144,000 to the plaintiff, Home Loan and Investment Bank, F.S.B. As security for the note, the defendants executed a mortgage on property located at 80 Norland Avenue, Bridgeport, Connecticut. Record title of this property is held solely in the name of Neola Wood. On January 10, 2003, the plaintiff commenced this action to foreclose upon the defendants' mortgage based upon their default in payment on the note.
On January 21, 2003, the defendants filed an application for protection from foreclosure and request for stay of the foreclosure action, together with the financial affidavit of James E. Wood, pursuant to General Statutes § 49-31f, the foreclosure moratorium act. On January 4, 2003, the plaintiff filed an objection to the application on the ground that the defendants do not qualify for protection from foreclosure and restructuring of the mortgage debt. The parties have filed memoranda in support of their positions.
Section 49-31f (a) provides: "[A] homeowner who is underemployed or unemployed against whom a foreclosure action is brought may make application, together with a financial affidavit, to the court having jurisdiction over the foreclosure action for protection from foreclosure if: (1) The mortgage being foreclosed encumbers the residential real property, which property has served as his principal residence, for a period of not less than two years, (2) such homeowner has not had a foreclosure action commenced against him in the preceding seven-year period and (3) such homeowner has not received an emergency mortgage assistance loan and has not applied for emergency mortgage assistance for two years before the application under the provisions of sections 8-265cc to 8-265ii, inclusive."
DISCUSSION
Under § 49-31f (a), to qualify for protection from foreclosure, an applicant must demonstrate that he or she is (1) a homeowner, (2) who is unemployed or underemployed, (3) whose property being foreclosed upon was his or her principal residence for at least two years before suit, (4) who had no other foreclosure action filed against him or her during the previous seven years, and (5) who received no emergency mortgage assistance during the previous two years. Additionally, Section 49-31f (a) requires that the homeowner submit a financial affidavit along with his or her application.
The court's threshold inquiry, therefore, is to determine whether either of the defendants qualify as a "homeowner" within the meaning of General Statutes § 49-31d (2). The court notes that under the provisions of § 49-31d (2), the phrase "ownership interest" and the term "own" are synonymous, as the legislature chose to use them interchangeably in its definition of "homeowner": "`Homeowner' means a person who has an ownership interest in residential real property secured by a mortgage which is the subject of a foreclosure action, and who has owned and occupied such property as his principal residence for a continuous period of not less than two years immediately preceding the commencement of such foreclosure action." (Emphasis added.)
The plaintiff argues that James E. Wood does not have the requisite ownership interest to qualify as a "homeowner" under the statute. Citing Webster's Dictionary's definition of "ownership," the plaintiff asserts that "ownership" presupposes legal title, which, as evidenced by the warranty deed, is vested solely in Neola Wood's name. According to the plaintiff, James E. Wood's status as a mortgagor is legally insufficient to bestow upon him an ownership interest within the meaning of the statute. In response, the defendants argue that James E. Wood's equitable interest in the property, as derived from his status as mortgagor, is sufficient to qualify as an ownership interest in the mortgaged property.
Although the definition of the term "owner" may vary depending on the context or circumstances, generally, "when we have construed `owner' in the context of real estate, we have defined the term with reference to title. When we say, a man has the title to . . . [property], we mean, he is the owner of it; and vice versa. (Internal quotation marks omitted.) Warner v. Leslie-Elliott Constructors, Inc., 194 Conn. 129, 137, 479 A.2d 231 (1984). "Ownership is an essential incident of title and according to the commonly approved usage of the language (General Statutes § 1-1), an owner is one that owns; one that has the legal or rightful title whether the possessor or not. Webster, Third New International Dictionary. Consolidated Diesel Electric Corp. v. Stamford, 156 Conn. 33, 38, 238 A.2d 410 (1968); see Julian v. Liberty Mutual Ins. Co., 43 Conn. App. 281, 284-85, 682 A.2d 611 (1996) (dictionary definitions of title involve ownership of property)." (Internal quotation marks omitted.) Lunn v. Cummings Lockwood, 56 Conn. App. 363, 372, 743 A.2d 653 (2000).
Further, "the fact that the legislature so frequently specifically defines `owner' as more encompassing than one who has title suggests the understanding that the word `owner' when not so expanded will be limited to one who has title." Warner v. Leslie-Elliott Constructors, Inc., supra, 194 Conn. 137. See, e.g., General Statutes § 20-419 (6), § 52-557f (3), § 8-169p (f) § 8-291 (d), § 14-1 (a) (56), § 15-102 (d), § 38a-363 (d), § 47a-1 (e). Had the legislature intended to broaden the scope of the phrase "ownership interest" or the term "owned," as set forth in § 49-31d (2), it had at its disposal numerous variations.
For example, "owner" is defined in § 20-419 (6) as "a person who owns or resides in a private residence and includes any agent thereof." In that statute, the legislature explicitly chose to broaden the concept of "owner" to include one who "owns or resides." Here, however, the legislature defines "homeowner" as one who "owned and occupied" the property, thereby making an express distinction between residence and ownership. Another example is the legislature's definition of "owner" in §§ 8-169p (f) and 8-291 (d): "`Owner' means any holder, as appears in the land records of the municipality, of (1) title to real property and (2) any mortgage or other secured or equitable interest in such property . . ." (Emphasis added.)
In these provisions, the legislature expanded the term "owner" to include titleholders and mortgagors, something it clearly did not do with respect to the foreclosure moratorium act. Instead, the legislature left the phrase "ownership interest" and the term "own" undefined, and, as noted above, "the fact that the legislature so frequently specifically defines `owner' as more encompassing than one who has title suggests the understanding that the word `owner' when not so expanded will be limited to one who has title." Warner v. Leslie-Elliott Constructors, Inc., supra, 194 Conn. 137.
Thus, the court concludes that the term "homeowner," as defined in § 49-31d (2), is limited to one who has legal title, and, as Neola Wood is the sole record owner of the property in this foreclosure action, James E. Wood, a mortgagor, does not have the requisite ownership interest to qualify as a homeowner under the foreclosure moratorium act.
Because Neola Wood is the sole homeowner in this foreclosure action, the court must next determine whether she qualifies as either an "unemployed person" or an "underemployed person" within the meanings of General Statutes §§ 49-31d (1) and (6), respectively. The defendants concede that Neola Wood has not been employed since 1994, and she does not qualify, therefore, as an "underemployed person." The definition of an "underemployed person" set forth in § 49-31d (6) presupposes that the homeowner has "earned" income within the two years preceding the commencement of the foreclosure action. Thus, the question presented is whether Neola Wood qualifies as an "unemployed person," which is defined as "a person who is unemployed for purposes of chapter 567." General Statutes § 49-31d (1).
Under General Statutes § 49-31d (6), underemployed person "means a person whose earned income during the twelve-month period immediately preceding the commencement of the foreclosure action is (A) less than fifty thousand dollars and (B) less than seventy-five per cent of his average annual earned income during the two years immediately preceding such twelve-month period." (Emphasis added.)
Citing Shawmut Mortgage Co. v. Wheat, supra, 245 Conn. 744, the plaintiff argues that Neola Wood, as a person who has not been employed since 1994, does not qualify as an "unemployed person" as defined by § 49-31d (1). The defendants argue that she qualifies as an "unemployed person" because she is currently too ill to seek employment and is eligible to collect social security benefits.
In Shawmut Mortgage Co. v. Wheat, supra, 245 Conn. 745, the sole issue was whether the defendant, an elderly woman who had never been employed, was an "unemployed person" within the meaning of the foreclosure moratorium act. The court concluded "that in order to fall within the definition of an "unemployed person" under the . . . act, an individual must have been employed previously"; id., 753; and held, therefore, that "the defendant, as an individual who never previously has been employed, is not an `unemployed person' within the meaning of § 49-31d (1) . . ." Id., 754-55. In the present case, the defendants contend that Shawmut is a narrow holding, limited to the facts of that case, i.e., a housewife who had never been employed, and that because Neola Wood had once been employed, she qualifies as an "unemployed person" pursuant to § 49-31d (1). In its argument, however, the plaintiffs ignore the Shawmut court's justification for its holding.
The Shawmut court notes that "[t]he decision to identify unemployed persons as `persons unemployed for purposes of [the unemployment act],' indicates that both the [foreclosure moratorium] act and the unemployment act were intended to benefit the same class of persons." Shawmut Mortgage Co. v. Wheat, supra, 245 Conn. 752. The unemployment act, according to the court, is "intended to aid only persons experiencing temporary employment-related losses of earned income." (Emphasis added.) Id., 751. The court states that "the purpose of the unemployment act is to provide temporary monetary benefits to workers experiencing short-term unemployment; "(emphasis added) id.; and that "the conditional and temporary nature of the benefits indicates that the legislature intended to benefit only temporarily unemployed workers when it enacted the unemployment act." (Emphasis added.) Id.
Likewise, the foreclosure moratorium act "was designed as a temporary mortgage moratorium for unemployed workers; (emphasis in original; internal quotation marks omitted) id., 752; and was intended "only to help persons who are experiencing temporary economic difficulties." (Emphasis in original.) Id., 753. In fact, "the legislature had in mind only persons who are experiencing temporary employment-related losses or decreases in earned income as beneficiaries when it enacted the [foreclosure moratorium] act." (Emphasis added.) Id.
In the present case, according to the defendants, Neola Wood "has not worked in many years, is of an age where she can collect Social Security Benefits, and . . . is too ill currently to work . . ." (Defendants' Supplemental Memorandum, p. 4.) Like the plaintiff in Shawmut Mortgage Co. v. Wheat supra, 245 Conn. 753, Neola Wood "presently is not experiencing a temporary employment-related decrease in earned income," and she does not qualify, therefore, as an "unemployed person" within the meaning of the foreclosure moratorium act.
CONCLUSION
Therefore, for the foregoing reasons, the defendants' application for protection from foreclosure is hereby denied.
So ordered this 8th day of July 2003.
STEVENS, J.