Opinion
No. CV 08-5015666
December 8, 2008
MEMORANDUM OF DECISION ON PLAINTIFF'S MOTION FOR DEFICIENCY JUDGMENT
FACTS:
The plaintiff, Webster Bank, National Association, brought this foreclosure action against the defendant, James J. Murphy, alleging that the defendant secured a note given by the plaintiff with a mortgage on real property located at 6 Wildes Way, Burlington, Connecticut, and that the defendant failed to make the required payments on the note. On June 10, 2006, the court entered the judgment of strict foreclosure, setting the law day on July 28, 2008. The defendant did not redeem the property prior to the law day, and on July 29, 2008, title vested in the plaintiff.
On August 29, 2008, the plaintiff made a motion for deficiency judgment. On September 18, 2008, the defendant filed an objection to the plaintiff's motion on the ground that the plaintiff filed it 31 days after the period for redemption ended, exceeding the thirty-day time limitation provided by Conn. Gen. Stat. § 49-14(a). The plaintiff filed a reply to the defendant's objection, arguing for "equitable tolling" of the time period prescribed by statute.
ISSUE
The issue in this case is whether the court should grant a motion for deficiency judgment in this strict foreclosure case, where the plaintiff filed the motion one day after the thirty-day time period allowed by Conn. Gen. Stat. § 49-14(a) following the close of the redemption period.
DISCUSSION
Conn. Gen Stat. § 49-14(a) provides in part 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." While the plaintiff admits that its motion for deficiency judgment was filed late, it argues for equitable tolling of the time allowed for filing. The plaintiff argues that "extraordinary circumstances" prevented the filing of the motion, and prior to missing the deadline, the plaintiff was diligent in pursuing its cause of action. The plaintiff's counsel suffered a death in her family and was therefore out of the state for several days proceeding the last day for filing the motion. At oral argument, the plaintiff's counsel stated that she passed the assignment on to an associate in her firm with ample time for the motion to be filed, but that the associate miscalculated the date by which the motion needed to be filed. Therefore, the miscalculation of the date by the associate caused the motion to be filed late.
"Connecticut courts have noted that [e]quitable tolling permits a plaintiff to avoid the bar of the statute of limitations if despite all due diligence he is unable to obtain vital information bearing on the existence of his claim . . . This doctrine embraces . . . what is sometimes called the `discovery rule,' which holds that the statute begins to run only after discovery of the facts constituting the violation . . ." (Internal quotation marks omitted.) H.J. Kelly Associates v. Meriden, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 03-0285781 (January 17, 2008, Taylor, J.). "The doctrine of equitable tolling applies in certain situations to excuse untimeliness in filing a complaint." Gager v. Sanger, 95 Conn.App. 632, 638-40, 897 A.2d 704 (2006).
The plaintiff relies on Baldayaque v. United States, 338 F.3d 145 (2nd Cir. 2003), to support its contention that the inaction of the plaintiff's attorneys rises to the level of the "extraordinary circumstances" required by federal courts in granting equitable tolling. The court in Baldayaque considered the actions of the plaintiff's former attorney to constitute "extraordinary circumstances." That case is actually distinct from the present case. The attorney in Baldayaque refused to file a motion requested by his client, did no legal research on his client's case, and never spoke directly with or met his client, in violation of several Rules of Professional Conduct. Id., n. 8-9. Finally, the court distinguished the attorney's behavior from cases where the attorneys "made simple mistakes about the rules applied to the deadlines for filing of habeas petitions. Such mistakes are ordinary" and therefore not subject to equitable tolling. Id., n. 7.
It is also not clear that the two-part test in Baldayaque requiring extraordinary circumstances and due diligence applies to a mortgage foreclosure case. In Baldayaque, the plaintiff sought to toll the one-year time limitation on a motion for which the Second Circuit had specifically created the two-part test. See Green v. United States, 260 F.3d 78, (2nd Cir. 2001) ("a district court may grant an extension of time to file a motion pursuant to [ 28 U.S.C. § 2255] only if (1) the moving party requests the extension upon or after filing an actual [ § ]2255 motion, and (2) "rare and exceptional" circumstances warrant equitably tolling the limitations period"). In the present case, there is no precedent for equitable tolling to be applied to the thirty-day limitation for filing a motion for deficiency judgment.
In Federal Deposit Ins. Co. v. Hillcrest Associates, 233 Conn. 153, 659 A.2d 138 (1995), the Connecticut Supreme Court decided that the thirty-day time limitation for filing a motion for deficiency judgment does not invoke subject matter jurisdiction, thereby allowing a party to waive the requirement. The court went on to state that "[t]his conclusion . . . does not mean, however, that [the time limitation] can be ignored with impunity . . . [I]f the mortgagee files an untimely motion for a deficiency judgment, it would be improper for the court to render such a judgment unless the mortgagor had, either expressly or by its conduct, consented thereto." Id., 173. The plaintiff in the present case does not argue that the defendant consented to a late filing.
The present case does not involve a situation where the plaintiff was unable to obtain information necessary to pursue its claim. The case is also dissimilar to Baldayaque v. United States, supra, 338 F.3d 145, in that the miscalculation of the date was nothing more than an ordinary mistake. Finally, the defendant did not consent or waive the thirty-day time limitation imposed by § 49-14(a). Therefore, the plaintiff's motion for a deficiency judgment is denied on the ground that it was untimely filed.