Opinion
No. CV 09 6001697
April 27, 2010
ORDER
Plaintiff's motion for protective order #143 is granted. Defendants' objection #149 is overruled.
The defendants', Groton Estates, LLC, and Constance Belfonti in her capacity as Executrix of the Estate of Richard Belfonti, answer special defenses and revised counterclaims (April 8, 2010), as presently alleged, deal with post-default matters. The defendants' answer to the complaint neither admits nor denies that Groton Estates, LLC is in default of the note, mortgage and assignment. (See Defendants' Answer to Paragraph 35 of the Plaintiff's Complaint.) The special defenses and revised counterclaims, as presently alleged, do not allege that any conduct or statements and/or actions of the plaintiffs or its agents occurred prior to the default of the loan which the defendants said was forthcoming in a May 26, 2009 letter. (See Paragraph 7 of the Defendants' Revised Counterclaim Dated April 8, 2010.)
The defendant's further allege no conduct or statements by the plaintiff and/or its agents prior to the default in payment of the June 2009 installment.
Furthermore, the discovery sought after by the defendants is not relevant to the issue before the court in determining whether a receiver of rents is necessary or the defendants' motion for a temporary injunction. The post-default conduct and/or statements are not germane to the court's determination.
The Appellate Court, in Antonino v. Johnson, opined:
"An action of foreclosure is peculiarly equitable and the court may entertain all questions which are necessary to be determined in order that complete justice may be done between the parties." Hartford Federal Savings Loan Ass'n. v. Tucker, 196 Conn. 172, 175, 491 A.2d 1084, cert. denied, 474 U.S. 920, 106 S.Ct. 250, 88 L.Ed.2d 258 (1985). "The application for a receiver is addressed to the sound legal discretion of the court, to be exercised with due regard to the relevant statutes and rules, and such exercise is not to be disturbed lightly nor unless abuse of discretion or other material error appears." Chatfield Co. v. Coffey Laundries. Inc., 11 Conn. 497, 501, 150 A. 511 (1930).
Our courts have considered a number of equitable factors when deciding whether to appoint a receiver of rents, including: (1) whether waste or loss is occurring; Hartford Federal Savings Loan Ass'n. v. Tucker, supra, 196 Conn. 175; (2) the risk to the foreclosing party that he will recover less than the full amount of his debt, that is, whether the deficiency is certain or only threatened; e.g., Prudential Ins. Co. of America v. Calabrese, Superior Court, judicial district of Waterbury, Docket No. CV 95 0127550 (August 11, 1995) ( 15 Conn. L. Rptr. 13); and (3) whether there are provisions in lending documents that allow or require the appointment of a receiver in the event of the mortgagor's default; Jewett City Saving Bank v. Weiss, Superior Court, judicial district of Windham, Docket No. CV 96 00053937 (November 21, 1996) (holding that when mortgage deed permits appointment of receiver and there is likely deficiency after foreclosure, court may grant motion to appoint receiver); see also Cross v. O'Neil, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV 02 0189033 (December 6, 2002) ( 33 Conn. L. Rptr. 449), Webster Bank, N.A. v. Belinda Co., Superior Court, judicial district of New Britain, Docket No. CV 05 4004042 (February 16, 2006).
Antonino v. Johnson, 113 Conn.App. 72 (2009), 966 A.2d 261 (2009).
The order is limited to the operative pleadings of the parties as of April 19, 2010.