Opinion
Nos. CV00-0162387S, CV00-0162388S, CV00-0162389S, CV00-01623905, CV00-01623915
June 5, 2001
MEMORANDUM OF DECISION CT Page 7816
On November 21, 2000, the plaintiffs, Northern Homes Distributors, Inc., Robert E. Ghent and Arlene V. Ghent, filed a one-count petition for discharge of lis pendens and damages against the defendants, Meadowhaven Condominium, Inc. and Eugene Melchionne pursuant to General Statutes §§ 49-8 and 49-13. The plaintiffs allege the following. On June 19, 1996, Meadowhaven Condominium, Inc., through its attorney, Eugene Melchionne, filed a foreclosure action against the plaintiffs to recover condominium common expense assessments allegedly due and owing to Meadowhaven Condominium, Inc. Thereafter, Attorney Melchionne filed a notice of lis pendens on the plaintiffs' property in the Waterbury land records. On October 19, 1997, the plaintiffs fully paid the debt arising out of the foreclosure action and Attorney Melchionne issued a satisfaction of judgment in connection therewith. On October 20, 1997, the plaintiffs, through their attorney, William F. Hickey III, requested in writing the release of the lis pendens from Attorney Melchionne. The defendants failed to release the lis pendens and thereafter, on December 19, 1997, the sixty day statutory delivery period expired.
General Statutes § 49-8 (c) provides: "The mortgagee or plaintiff or the plaintiff's attorney, as the case may be, shall execute and deliver a release within sixty days from the date a written request for a release of such encumbrance (1) was sent to such mortgagee, plaintiff or plaintiff's attorney at the person's last-known address by registered or certified mail, postage prepaid, return receipt requested or (2) was received by such mortgagee, plaintiff or plaintiff's attorney from a private messenger or courier service or through any means of communication, including electronic communication, reasonably calculated to give the person the written request or a copy of it. The mortgagee or plaintiff shall be liable for damages to any person aggrieved at the rate of two hundred dollars for each week after the expiration of such sixty days up to a maximum of five thousand dollars or in an amount equal to the loss sustained by such aggrieved person as a result of the failure of the mortgagee or plaintiff or the plaintiff's attorney to execute and deliver a release, whichever is greater, plus costs and reasonable attorney's fees."
General Statutes § 49-13 (c) provides in relevant part: "[I]f the court finds the mortgage has been satisfied but no release given as evidence of such satisfaction, or if the court finds that a bona fide offer and tender of payment of the foreclosure judgment or mortgage has been made and refused, or if the court finds the attachment, lis pendens or other lien has become of no effect, the court may render a judgment reciting the facts and its findings in relation thereto and declaring the mortgage, foreclosure judgment, attachment, lis pendens or other lien invalid as a lien against the real estate, and may order payment of any balance of indebtedness due on the mortgage or foreclosure judgment to the clerk of the court to be held for the benefit of the mortgagee or the persons interested and to be paid to the mortgagee by the clerk of the court upon application of the mortgagee or persons interested following the execution of a release of mortgage."
Specifically, Meadowhaven Condominium, Inc., through its attorney, Eugene Melchionne, previously filed the following action: Meadowhaven Condominium, Inc. v. Northern Homes Distributors, Inc., Docket No. 133983. On August 25, 1997, the court, Kulawiz, J., entered a judgment of strict foreclosure in connection with the prior action.
On January 29, 2001, the defendants filed a motion for summary judgment with a supporting memorandum of law, an affidavit of Attorney Melchionne and copies of various lis pendens, notices of judgments of strict foreclosure, satisfactions of judgments and correspondences between the parties. On February 14, 2001, the plaintiffs filed an objection to the defendants' motion for summary judgment. Additionally, the plaintiffs filed a cross motion for summary judgment with a supporting memorandum of law, an affidavit of Attorney William Hickey III, an affidavit of debt and copies of various lis pendens, satisfactions of judgments and correspondences between the parties.
A "motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried."Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). "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 seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. . . ." (Citations omitted; internal quotation marks omitted.) Miles v. Foley, 253 Conn. 381, 385-86, 752 A.2d 503 (2000) "The test is whether a party would be entitled to a directed verdict on the same facts." (Internal quotation marks omitted.) Sherwood v. Danbury Hospital, 252 Conn. 193, 201, 746 A.2d 730 (2000)
In the present case, the defendants argue that there are no issues of material fact and that, as a matter of law, the plaintiffs cannot obtain relief under General Statutes §§ 49-13 or 49-8. The defendants argue that no condition invalidating the original lis pendens exists and that the plaintiffs caused their own damages by failing to record the satisfaction of judgment in accordance with General Statutes § 49-21. The defendants further argue that the plaintiffs failed to avail themselves of other remedies by waiting until the "last minute" to pay the required redemption amounts.
General Statutes § 49-21 provides: "When, in any action of foreclosure, any defendant has paid the debt and costs and the title to the mortgaged premises has become absolute in such defendant, or any person claiming under him, in accordance with the provisions of sections 49-19 and 49-20, the plaintiff or person receiving such payment, either in person or by his agent or attorney, shall sign and deliver to the defendant a certificate of satisfaction of the judgment of foreclosure stating the name and residence of the defendant. The certificate shall be filed by him forthwith with the clerk of the court in which the judgment was rendered. A certified copy of the certificate of satisfaction of judgment, and of the judgment, or of a certificate of judgment of strict foreclosure or of a certificate of judgment of strict foreclosure by sale shall be forthwith filed by the defendant for record in the land records of the town where such premises are situated." (Emphasis added.)
In response, the plaintiffs do not claim that there are material issues of fact but argue, however, that the defendants are not entitled to judgment as a matter of law. The plaintiffs argue that they have a valid cause of action under § 49-13 for an order discharging the lis pendens which has been satisfied and otherwise become of no effect. The plaintiffs further argue that they are entitled to damages under § 49-8 because the defendants, after receiving a written request, failed to release the lis pendens. The plaintiffs finally argue that § 49-21 does not provide for the filing of a certificate of satisfaction by the owner of the equity of redemption where the debt is satisfied.
In support of this argument, the plaintiffs cite Tilden v. Paramount Finance Co., 111 Conn. 504, 150 A. 703 (1930). However, the plaintiffs' reliance on Tilden is misplaced. In Tilden, the plaintiff brought an action to determine his interest in certain real estate. The real estate at issue was encumbered by numerous mortgages held by various entities. The court held that the certificate of title was legally invalid because it conflicted with a previous foreclosure judgment and findings of fact. Moreover, the court held that the plaintiff's attorney lacked statutory authority to file the certificate of title.
In the present case, the plaintiffs filed an action for damages and a discharge of lis pendens. The lis pendens at issue stems from a prior foreclosure action brought against the plaintiff to collect condominium common expense assessments. There is no evidence that the satisfaction of judgment conflicted with the foreclosure judgment so as to render it invalid and incapable of being properly filed, therefore, Tilden is not controlling because it is distinguishable.
"[T]he purpose of [a notice of lis pendens] is to bind any subsequent purchaser or encumbrancer as if he were made a party to the action described in the lis pendens. . . . [T]he lis pendens procedure provides security for payment of the claim pending final resolution of the case." (Internal quotation marks omitted.) Corsino v. Telesca, 32 Conn. App. 627, 632-33, 630 A.2d 154, cert. denied, 227 Conn. 931, 632 A.2d 703 (1993) "A notice of lis pendens is appropriate where the pending action will in some way, either directly or indirectly, affect the title to or an interest in the real property itself. . . . A lis pendens is a creature of statute and a person invoking its provisions must comply with the statutory requirements . . . Nevertheless, the provisions of the statute should be liberally construed to implement reasonably and fairly its remedial intent of giving notice of claims pertaining to the real property which is the subject of the litigation." (Citations omitted; internal quotation marks omitted.) First Constitution Bank v. Harbor Village Ltd. Partnership, 37 Conn. App. 698, 703, 657 A.2d 1110, cert. denied, 235 Conn. 902, 665 A.2d 901 (1995). Moreover, Connecticut courts have "often stated that we will not exalt form over substance." Brown v. Rosen, 36 Conn. App. 206, 210, 650 A.2d 568 (1994).
After viewing the evidence in the light most favorable to the plaintiffs, it is clear that the defendants' motion for summary judgment should be granted. There is no dispute that Attorney Melchionne, on behalf of Meadowhaven Condominium, Inc., delivered a certificate of satisfaction of judgment to the defendants in the prior action and filed it with the clerk of the court. The next statutorily prescribed step pursuant to § 49-21 is for the defendants in the prior action to file a certified copy of the certificate of satisfaction of judgment and of the judgment on the land records. The plaintiffs, having been the defendants in the prior action, failed to take this step.
A certificate of satisfaction of judgment, if properly recorded on the land records, would relate back to the original lis pendens and would provide notice that the property is free of the subject lien. The statutory purpose of providing notice of the status of claims relating to the subject property would have been served had the plaintiffs followed the procedure set out in § 49-21. First Constitution Bank v. Harbor Village Ltd. Partnership, supra, 37 Conn. App. 703. As a matter of law, therefore, the plaintiffs are not entitled to damages pursuant to § 49-8 or a discharge of lis pendens pursuant to § 49-13. To hold otherwise would be to promote form over substance, a practice not adhered to by our courts. Brown v. Rosen, supra, 36 Conn. App. 210 (1994)
Although not controlling, the Connecticut Standards of Title provides guidance on this matter. "When a defendant owner redeems, whether it be in a strict foreclosure or foreclosure by sale, no transfer of title occurs. All that occurs is that the owner has satisfied the judgment and has thereby avoided what otherwise would have been the effect of the decree, viz, an extinguishment of the equity of redemption. In view of this fact, errors in the satisfaction of judgment or in the certificate of judgment of either strict foreclosure or foreclosure by sale are of no consequence. The recorded satisfaction of judgment, bearing the signature of the plaintiff or the plaintiff's attorney, establishes that the underlying obligation of the plaintiff has been paid and that the property is now free of the mortgage or lien that previously secured it. In such a case the title remains subject to all liens and encumbrances affecting the property other than the mortgage or lien that was foreclosed. No separate release of that mortgage is necessary." (Emphasis added.) Connecticut Standards of Title, Standard 19.7, Comment 1 (1999).
In sum, the defendants' motion for summary judgment is granted because no genuine issue of material fact exists and the defendants are entitled to judgment as a matter of law. In accordance with the above memorandum, the plaintiffs' cross motion for summary judgment is denied.
THOMAS G. WEST, J.