Opinion
No. CV 07 4015043S
October 8, 2008
MEMORANDUM OF DECISION
The plaintiffs in this administrative appeal are mother, Elsa Gonzalez (Elsa), and her daughter, Jessica Gonzalez (Jessica). They appeal from a July 2, 2007 final decision of a hearing officer for the department of social services (DSS) upholding the DSS' placement of a lien on their residence in Waterbury, Connecticut.
On May 7, 2007, a DSS employee wrote to Elsa informing her that "[t]he State of Connecticut has recorded a lien against your interest in [494 Highland Avenue, Waterbury] . . . to secure the claim of the State for all amounts which have been paid or which may hereafter be paid to or on behalf of any person for whose support you are liable . . . If you are aggrieved by the placement of this lien, you may request a Fair Hearing in writing within sixty (60) days of the date of this letter . . ." (Return of Record, ROR, Item 3G).
On May 8, 2007, Jessica requested a hearing stating: "I am sending this letter as an APPEAL for this matter as my mother's name appears on my house papers, but she is NOT the owner. I, and my husband Ismael Ortiz are the owners, and have Bank statements, witnesses, and plenty of proof to support this." (ROR, p. 40.) On May 31, 2007, Elsa wrote: "I Elsa Gonzalez am requesting a hearing regarding lien on property of 494 Highland Ave." (ROR, p. 43.)
The hearing took place on May 31, 2007, with Elsa, Jessica and her husband Ismael present. None of these parties was represented by an attorney. Elsa was assisted by a Spanish interpreter as she does not speak English. A DSS employee testified that he had performed a title search on the property. He found that the property had been purchased on March 5, 1997 for $95,000 with both Elsa and Jessica as grantees. (ROR, Volume II, transcript, p. 61.) Elsa still lived there, as did her husband, Jose, and as of April 2007 she was still a co-owner with Jessica. (ROR, transcript, p. 62.) Both Elsa and Jose were receiving funds from DSS. ( Id., p. 63.)
This is disputed in the record. Apparently after 1997 Elsa moved to Puerto Rico and returned to Waterbury in 2005. Her husband suffered a heart attack and Elsa and Jose remained thereafter in Connecticut. ( Id., p. 69.)
The hearing officer then asked Elsa why she was disputing the placement of the lien on the residence. She replied: "In reality the property is not mine. When I bought the property, my daughter was a minor. So — she said that her daughter was single. And the bank the (unintelligible) because the loan it was best that Miss Gonzalez and Mrs. Gonzalez both appear on the loan. How is it possible that I still work on (unintelligible) how can I buy a property and how can I pay a mortgage about a thousand or more, I don't know . . . I'm just on the record because of my name. I don't understand why they even wanted it, because I'm — I don't have any income. My daughter was single." ( Id., pp. 64, 66.)
Next, Jessica answered questions posed by the hearing officer. She stated that the property had been purchased in 1997. ( Id., p. 66.) She was asked if it was correct that her mother Elsa was listed, and still listed, as an owner of the property on the Waterbury land records. Jessica replied: "Probably. It's no longer listed as that because me and my husband are refinancing the house." ( Id., p. 67.)
The hearing officer noted that as of April 2007, Elsa's name was still on the land records as a co-owner. "Have you officially changed anything with the town?" Jessica replied: "Yes. Her name is no longer in our (unintelligible). It's now under my name and my husband's name." ( Id.) She was unsure whether the title change had occurred in April or May 2007. ( Id., p. 68.) Jessica's husband Ismael offered to find the date of the title change in papers that he had brought to the hearing. ( Id.) Again concerned with the actual date of the change in title, the hearing officer stated that he was not interested in when Jessica and Ismael began planning for the title change, because "it's only when the actual documents were signed that is really relevant." ( Id., p. 72.) Ismael then states that the title change was on May 9 or 10 and offered to supply copies to the hearing officer. ( Id., p. 73.)
The hearing officer then returned to the purchase in 1997. Jessica stated that an attorney processing the paperwork for them in 1997 recommended that title be taken with both Elsa and Jessica as co-owners. ( Id., p. 74.) Elsa "at that time . . . did have some income. And that's when she said (unintelligible) on loan versus one. It would be helpful for us to get approved for a loan if the banks know that there was a short gap on the monthly payment for the home . . . [but Elsa stopped working] — we're probably talking about seven years." ( Id., pp. 75, 76.)
To the question of whether she was helping with the cost of the mortgage as well, Jessica replied: "In the beginning when she worked. Because I let them stay with me. Then they would give me $200 to help with the — with the bills and all that because I was pretty young when I first bought the home . . . [Jose was not working at the time]." ( Id., p. 76.)
The hearing officer considered again the date on which Elsa was removed from the title. She deeded her share of the property to Jessica and Ismael. ( Id., p. 77.) The hearing officer then discussed with the DSS employee the fact that the lien was placed on May 7, 2007 and the title change apparently took place on May 9, 2007. ( Id., p. 80.) The hearing officer informed Ismael that he would leave the record open until June 14, 2007 to receive from him documents relating to the date of the transfer of the title from Elsa to Jessica and him. ( Id., p. 81.)
Jessica then states: "What else should we — should we be sending you bills (unintelligible) of them paid at the home, any other documents that we should be . . ." The hearing officer replies: "Actually I just need the documents as to when the property was transferred, if that is in existence, in terms of the actual documentation and the title or whatever — the warrantee deed, whatever is registered with the town or City of Waterbury to show a change of — a change of ownership." ( Id., p. 84.)
On June 13, 2007, the hearing officer was furnished with an open-end mortgage deed from Home Loan Center, Inc., dated May 10, 2007. The mortgage showed that the owners of the property were Jessica and Ismael. The record was then closed.
The hearing officer rendered his final decision on July 2, 2007. (ROR, Volume I, Item 1.) The findings of fact made by the hearing officer may be summarized as follows:
1. Elsa is a recipient of SAGA benefits.
2. Jose, her husband, is a recipient of AABD benefits.
3. Elsa and Jose live at 494 Highland Avenue in Waterbury, with their daughter, Jessica and their son-in-law, Ismael.
4. Elsa is a legally liable relative for her husband, who is currently receiving assistance from DSS.
5. On March 5, 1997, Jessica purchased the Highland Avenue property for $94,200 with Elsa listed as co-owner and co-signer of the mortgage.
6. Elsa is a legal owner of the Highland Avenue property.
7. On May 7, 2007, the DSS placed a lien affecting the property on the Waterbury land records.
8. On May 7, 2007, the DSS sent Elsa a notice of its claim and lien pursuant to statute to secure the state's claim for any benefits paid or hereafter paid to any person "for whose support you are liable."
9. On May 10, 2007, Jessica and Ismael refinanced the mortgage through Home Loan Center.
10. At the time DSS placed the lien on the land records, Elsa remained a legal owner of the property.
11. The DSS has properly placed a lien on Elsa's property.
12. The amount secured by the lien has yet to be fully determined. ( Id., pp. 1-3.)
Based on these findings of fact, the hearing officer concluded that: (1) Elsa was a legal owner with Jessica; (2) That both Elsa and Jose, her husband, were recipients of DSS benefits; and, (3) That the DSS properly placed a lien on Elsa's property "to recover the amount of [these benefits]."
He continued:
In this case, [Elsa is liable for repayment of DSS assistance]. [Elsa's] daughter and [Elsa] purchased the property in question . . . on March 5, 1997. At that time, both were listed on the warranty deed, and they each co-signed for the mortgage . . . The property records with the City of Waterbury continued to list both [Elsa] and her daughter as owners as of May 7, 2007 when the Department placed a lien on the property.
At the time of purchase, [Jessica] was single and, per her testimony, the bank wanted her mother's name listed on the mortgage and as a co-owner, because she was also employed. The fact that [Elsa] is listed as a co-owner, and as a co-signer of the original mortgage note makes her an owner of the property. She could be held legally liable for payment of the mortgage and the taxes on the property.
Agency policy directs that, if the assistance unit [Elsa herein] is the record owner of an asset, the unit is considered the legal owner unless it establishes otherwise, with clear and convincing evidence. The evidence presented at the hearing does not establish that [Elsa] was only the record owner of the property . . .
[Elsa's] daughter and her husband refinanced the property on May 10, 2007 under their two names only, without [Elsa]. The Department's lien was recorded with the City of Waterbury on May 7, 2007, before the completion of the refinancing. The new mortgage does not affect the Department's right to place the lien on the property. The Department of Social Services is upheld in the placement of the lien on [Elsa's] real property . . .
( Id., pp. 5-6.) This appeal followed.
The plaintiffs are aggrieved by the decision upholding the placement of the lien. Cantor v. Dept. of Income Maintenance, 40 Conn.Sup. 554, 556 531 A.2d 608 (1985), aff'd, 12 Conn.App. 435, 531 A.2d 606 (1987).
The court has set forth in detail the proceedings before the DSS because it concludes that there were two errors made by the hearing officer in this matter. First, the ultimate issue before the hearing officer was the distinction between "record owner" and "legal owner." As seen above, the hearing officer correctly found that at the time the lien was placed on the land records (May 7, 2007), Elsa was an owner. It was only after May 10, 2007, that Elsa divested herself of the title to the premises.
The DSS Uniform Policy Manual § 4000.01 defines "record owner" as follows: "The record owner of an asset is the person who has apparent ownership interest as shown on a title, registration, or other document."
The DSS Uniform Policy Manual § 4000.01 defines "legal owner" as follows: "The legal owner of an asset is the person who is legally entitled to enjoy the benefit and use of the asset."
This does not resolve the issue, however. Under Uniform Policy Manual § 4010.05(A): "General Principles-1. If the assistance unit [Elsa herein] is the record owner of an asset, the unit is considered the legal owner unless it establishes otherwise, with clear and convincing evidence; 2. If it is established to the Department's satisfaction that the legal owner and the record owner of an asset are two different persons, the Department considers the asset the property of the legal owner." In other words, the mere fact that Elsa was a co-grantee on the 1997 deed until 2007, does not mean that she was the "legal owner" of the asset. Biondi v. Dept. of Social Services, Superior Court, judicial district of New Britain, Docket No. CV 01 0511997 (May 14, 2002, Schuman, J.); Lantiere v. Dept. of Social Services, Superior Court, judicial district of New Britain, Docket No. CV 0504695 (June 26, 2001, Wiese, J.) (discussing whether the plaintiff was a "legal owner" or merely a "record owner" because a constructive trust had allegedly been created).
The DSS has set forth in its procedures accompanying Policy Manual § 4010.05 a suggested protocol to assist a hearing officer in determining whether an owner of property is a legal as opposed to record owner. These steps include the following: "1. If the assistance unit is the record owner of an asset, presume that it is also the legal owner of the asset; 2. If the assistance unit claims that it is not the legal owner of an asset, consider all evidence the unit presents; 3. If the assistance unit alleges that it is the record owner, but not the legal owner of an asset, inform the unit that it must present clear and convincing evidence proving that this is the case; 4. [Ask the unit a series of questions relative to physical possession of the asset, purchase price details, who is benefitting from the asset, why the asset is in the unit's name, relationship between unit and claimed legal owner]; 5-18. [Was] there . . . an expressed agreement between the record owner and the alleged legal owner, whereby the record owner agreed to hold the asset for the benefit of the legal owner? [A series of questions follow so as to determine whether this was an express or implied trust.]"
As seen from the transcript quoted above, the hearing officer did follow the appropriate procedure to a certain extent. He found out the familial relationship between the record owner (Elsa) and the claimed legal owner (Jessica), the reason for placing Elsa on the deed and mortgage, that Elsa and Jose now lived at the residence; the initial payments that Elsa made toward household expenses while she was employed; and the household income in general.
The hearing officer did not adequately explore the financial contribution by Elsa in purchasing the property nor did he inquire whether there was an agreement between Elsa and Jessica that gave rise to a trust between the two parties. The hearing officer did not advise the plaintiffs as required by the stated DSS procedure that they "must present clear and convincing evidence" to rebut the presumption that Elsa was not the legal owner. Without making additional inquiries, the hearing officer lacked substantial evidence to conclude, as he did in findings of fact 6 and 10 (ROR, Final Decision, p. 3) that Elsa was the legal owner of the property. Goldstar Medical Services, Inc. v. Dept. of Social Services, 288 Conn. 790, 833 (2008) (must be substantial evidence in the administrative record to support agency's findings of fact).
In finding of fact #5 (ROR, Final Decision, p. 3), the hearing officer states that Jessica purchased the property with Elsa being placed on the deed and mortgage as a co-owner. At the hearing in this court on September 19, 2008, the plaintiffs' attorney indicated that he had evidence of a relative, not Elsa, that assisted with the down payment in 1997.
One of the questions to be asked by the hearing officer as set forth in the procedural guidelines to § 4010.05 (#6, bullet 2) is "Is the alleged legal owner maintaining the asset?" Here Ismael offered the hearing officer documents to prove that he was covering these expenses and also testified that he was re-financing to obtain funds for renovation of the property. (ROR, transcript, p. 72.)
The second error that the hearing officer made was to cut off the opportunity for the plaintiffs to present additional evidence regarding the "legal/record owner" issue. As seen above, when the hearing officer held the record open for two weeks, he stated (ROR, transcript, p. 84) that his only interest was in the new deed and not any other additional information, even though such information was offered. Cf. Gust v. Dept. Of Social Services, Superior Court, judicial district of New Britain, Docket No. CV 06 4012310 (October 17, 2007, Cohn, J.) [44 Conn. L. Rptr. 311] (the plaintiffs were informed that the record was left open for them to furnish additional evidence of ownership of bank account).
Especially in light of the fact that the plaintiffs were self-represented before the agency, and Elsa was not English speaking, these errors require a new hearing. Harrison v. Dept of Income Maintenance, 204 Conn. 672, 681 529 A.2d 188 (1987); Rodolfo-Masera v. Rowe, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 92 505549S (December 3, 1993, Holzberg, J.) [10 Conn. L. Rptr. 496].
"This court has always been solicitous of the rights of pro se litigants and, like the trial court, will endeavor to see that such a litigant shall have the opportunity to have his case fully and fairly heard so far as such latitude is consistent with the just rights of any adverse party." Conservation Commission v. Price, 193 Conn. 414, 421, n. 4, 479 A.2d 187 (1984).
The court, pursuant to § 4-183(j)(3), remands the case to the DSS for a second hearing.