No. HHD-CV-10-6008816 S
November 3, 2011
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (#120)
This is a foreclosure action in which the defendant, DEEK Investment Limited Partnership, has moved for summary judgment claiming that the plaintiff's right to foreclose the subject mortgage is barred by the applicable statute of limitations. In the complaint, DEEK is alleged to claim an interest in the property which is subordinate to the mortgage being foreclosed.
The undisputed facts establish that the defendant, Barbara Shefrin, by a note dated April 24, 1990, promised to pay Connecticut National Bank the principal sum of $304,000. By mortgage deed dated the same date, the defendant Shefrin, to secure the note, mortgaged certain property to the Bank. The Bank assigned the note and mortgage to the plaintiff in 1992. Shefrin has made no payments on the note from January 1, 1993 through and including the date when this action was brought. As a result of such default, the plaintiff has had a right under the mortgage to commence an action to foreclose the mortgage at all times between January 15, 1993 and February 15, 2010.
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law." (Internal quotation marks and citation omitted.) The Episcopal Church v. Gauss, 302 Conn. 408, 421 (2011).
DEEK claims that the applicable statute of limitations is General Statutes § 52-575. That statute provides, in relevant part,: "No person shall make entry into any lands or tenements but within fifteen years next after his right or title to the same first descends or accrues or within fifteen years next after such person or persons have been ousted from possession of such land or tenements; and every person, not entering as aforesaid, and his heirs, shall be utterly disabled to make such entry afterwards; and no such entry shall be sufficient, unless within such fifteen-year period, any person or persons claiming ownership of such lands and tenements and the right of entry and possession thereof against any person or persons who are in actual possession of such lands or tenements, gives notice in writing to the person or persons in possession of the land or tenements of the intention of the person giving the notice to dispute the right of possession of the person or persons to whom such notice is given and to prevent the other party or parties from acquiring such right, and the notice being served and recorded as provided in sections 47-39 and 47-40 shall be deemed an interruption of the use and possession and shall prevent the acquiring of a right thereto by the continuance of the use and possession for any length of time thereafter, provided an action is commenced thereupon within one year next after the recording of such notice. The limitation herein prescribed shall not begin to run against the right of entry of any owner of a remainder or reversionary interest in real estate, which is in the adverse possession of another, until the expiration of the particular estate preceding such remainder or reversionary estate." DEEK argues that although this statute pertains to adverse possession it has been applied to foreclosures by analogy and cites Arnold v. Hollister, 131 Conn. 34 (1944). There the Court did indicate that the applicable statute of limitations for a foreclosure action is the adverse possession statute but noted that it was recognized only by analogy. The Court also stated that: "This is an equitable proceeding to foreclose a mortgage, and the Statute of Limitations does not apply ex proprio vigore; it is recognized in this type of case only by analogy . . . Equity ordinarily will refuse a remedy when the statute applying to similar actions at law has run. . . . But just as it may give a remedy after the statute has run, so it may dismiss an action or laches within the statute's period." (Citations omitted.) Id., 38. The Court in Arnold did not apply the adverse possession statute to defeat the plaintiff's claim for foreclosure where the plaintiff did not have any right or title in the mortgage which would entitle him to demand or enforce an interest payment until the surviving life tenant died in 1934. Therefore the Court held that the period prior to that death would not be counted against the plaintiff as laches in bringing the foreclosure action. In Arnold the demand note and mortgage were executed in 1911. As of 1934, when the foreclosure action was brought, no payments of principal or interest had been made since the date of the note and mortgage.
More recently, in Federal Deposit Insurance Corporation v. Owen, 88 Conn.App. 806, cert. denied, 275 Conn. 902 (2005), where the defendant claimed that this foreclosure action was barred by the statutes of limitations applicable to the note, the court held that: "[T]he rule in Connecticut, as far back as the early nineteenth century, is that a statute of limitations does not bar a mortgage foreclosure . . . Repeatedly reaffirmed and generally known, it has taken on the aspect of a rule of property and in all probability many mortgages in this State are now held, after any action upon the debt secured has been barred, in reliance upon it . . . [T]he rule is in harmony with the accepted principle that the statute of limitations does not destroy the debt but merely bars the remedy . . . [a] mortgage is enforceable whether or not any person is personally liable for that performance . . . Because the statute does not speak to the continued existence of the mortgage debt, it does not supersede the bank's continuing access to equitable foreclosure proceedings." (Internal quotation marks and citations omitted.) Id., 815. In support of its holding, the Court cited Markham v. Smith, 119 Conn. 355, 358 (1935), where the Court stated: "In a long line of decisions, from Belknap v. Gleason, 11 Conn. 160, to Downey v. Moriarty, 81 Conn. 442, 71 A. 581, this court has held that the barring of a debt secured by a mortgage by the running of the statute of limitations does not prevent a foreclosure of the mortgage."
Consequently, a statute of limitations, if applicable at all to a foreclosure action, is only applicable by analogy as the Court in Arnold held. In any event, a foreclosure action being an equitable proceeding, the court, as noted in Arnold, can still allow a remedy where the analogous statute of limitations has run. "In fact, in an equitable proceeding, a court may provide a remedy even though the governing statute of limitations has expired, just as it has discretion to dismiss for laches an action initiated within the period of the statute . . . Although courts in equitable proceedings often look by analogy to the statute of limitations to determine whether, in the interests of justice, a particular action should be heard, they are by no means obliged to adhere to those time limitations." (Internal citations omitted.) Dunham v. Dunham, 204 Conn. 303, 326-7 (1987).
Here, even if the court assumes that General Statutes § 52-575 applies, it appears that the statute of limitations began to run, at the latest on April 24, 2010, pursuant to the terms of the note and mortgage themselves. The note provides that any delay by the plaintiff in enforcing his rights under the note and mortgage do not constitute a waiver of those rights. The note provides that the failure to exercise any option or rights which arise as a result of an event of default "shall not constitute a waiver of the right to exercise such option or such other right at a later time so long as such Event of Default shall remain uncured." Note, paragraph 7. In addition, the note also provides that "if not sooner paid, all amounts owing under this Note shall be due and payable in full on April 24, 2010." Note, paragraph 2(b). The mortgage also provides that "the Grantee's failure to exercise any rights hereunder upon any default shall not be deemed to be a waiver or relinquishment of its rights to do so with respect to said default or upon any subsequent default." Mortgage, paragraph 13. Lastly, even accepting DEEK's argument that the statute of limitations began to run in 1993, the court, in light of the terms of the note and mortgage which provide that any delay in the enforcement of the creditor's rights thereunder does not waive those rights, can, as a matter of equity, refuse to apply the statute of limitations to bar enforcement of those rights.
Therefore the motion for summary judgment is denied.