The defendant partnership appealed to this court from the trial court's denial of its motion to open a judgment of strict foreclosure of certain of the defendant's real property. Held that the defendant failed to demonstrate that the trial court abused its discretion or committed legal error in refusing to open the judgment of strict foreclosure when the debt so far exceeded the value of the property.
Argued December 11, 1990
Decision released January 29, 1991
Action to foreclose a mortgage on certain real property, and for other relief, brought to the Superior Court in the judicial district of Stamford-Norwalk and tried to the court, Ryan, J.; judgment of strict foreclosure; thereafter, the court, Flynn, J., granted the plaintiff's motion to open the judgment and to extend the law days, and rendered judgment of strict foreclosure; subsequently, the court, Flynn, J., denied the named defendant's motion to open the judgment and to extend the law days, and the named defendant appealed to this court. Affirmed; remanded with direction.
Thomas W. Bucci, with whom, on the brief, was Mark J. Rosen, for the appellant (named defendant).
Gregory W. Nye, with whom was Robert G. Skelton, for the appellee (plaintiff).
The dispositive issue in this appeal is whether the trial court improperly denied the named defendant's motion to open and modify a judgment of strict foreclosure pursuant to General Statutes 49-15. We affirm the judgment of the trial court.
The named defendant is the sole defendant in this appeal, and we will refer to it as the defendant in this opinion.
The following facts are not disputed. On February 14, 1989, a judgment of strict foreclosure was rendered for the plaintiff with a law day of September 6, 1989, set for the defendant. Subsequently, the defendant filed a petition in the Bankruptcy Court which stayed all proceedings. Pursuant to the plaintiff's motion, the Bankruptcy Court lifted the automatic stay on February 20, 1990, when it found the defendant's plan of reorganization unsatisfactory.
On March 19, 1990, the trial court rendered a new judgment of strict foreclosure based on the same terms as its prior judgment with the defendant's law day set for April 9, 1990. On April 4, 1990, the defendant moved to open the judgment and extend the law day because it was submitting a new reorganization plan to the Bankruptcy Court. The trial court denied this motion on April 5, and this appeal ensued.
A motion to open a judgment of strict foreclosure is addressed to the discretion of the trial court; General Statutes 49-15; and, unless that discretion was abused or was based on some error of law, the denial of the motion must stand. Melillo v. Spiro, 187 Conn. 333, 334, 445 A.2d 921 (1982); New Haven Savings Bank v. Gurland, 3 Conn. App. 508, 509, 489 A.2d 1070 (1985).
General Statutes 49-15 provides in part: "Any judgment foreclosing the title to real estate by strict foreclosure may, at the discretion of the court rendering the same, upon the written motion of any person having an interest therein, and for cause shown, be opened and modified . . . upon such terms as to costs as the court deems reasonable . . . ."
The defendant's property at the time of the 1989 judgment had a fair market value of $4,800,000 and a debt of $5,545,783 with interest accruing at the rate of $1998 per diem. The fair market value of the property at the time of the 1990 judgment had declined to $3,133,000 with the debt having risen to $6,341,369. The defendant has failed to demonstrate that the trial court abused its discretion or committed legal error in setting the defendant's law day when the debt so far exceeded the value of the property.
"`On an application for a foreclosure the court will ascertain the sum that is due on the mortgage, and enquire into the value of the mortgaged premises, and will limit a time for redemption having regard to the value of the [mortgaged] premises when compared with the debt.'" Brand v. Woolson, 120 Conn. 211, 214, 180 A. 293 (1935), quoting 2 Swift's Digest, 197; Busca v. Nicotra Corporation, 213 Conn. 264, 267, 567 A.2d 377 (1989).