Opinion
No. CV 06-5006171 S
August 19, 2009
MEMORANDUM OF DECISION ON PLAINTIFF'S MOTION TO OPEN JUDGMENT OF FORECLOSURE BY SALE, VACATE SALE, AND SET A NEW SALE DATE #134
On March 3, 2008, the court (Crawford, J.) modified a previously entered judgment of foreclosure by sale and set a new sale date of June 14, 2008. On June 14, 2008, the sale occurred and the plaintiff, a judgment creditor, was the highest bidder at $48,500.
On June 23, 2008 the committee filed a motion for possession alleging that the committee has sold the subject property to the plaintiff, that it has entered into a bond for deed with the plaintiff, that the defendant is still in possession of the subject premises, that the plaintiff desires to obtain possession in connection with his acquisition of the title, and therefore the plaintiff requests that the court order the defendant to deliver up the property to the plaintiff.
On September 8, 2008, the court (Hadden, J.T.R.) granted the committee's motion to approve the sale, approve the committee deed and approve the committee report and motion for payment of fees and expenses. The committee deed was signed by the court, and forwarded to the committee to be sent to the plaintiff who was the successful bidder.
The approved committee deed was sent to the plaintiff on September 26, 2008. On October 27, 2008, the plaintiff paid the committee its approved fees and expenses of $2,715.20. The plaintiff's letter of October 27, 2008 to the committee, which included two checks in payment of the fees and expenses, stated "As discussed at this time my client is not accepting delivery of the deed. As a convenience, I will hold the deed in case the situation changes unless you instruct otherwise." On March 9, 2009, the plaintiff returned the committee deed to the committee and stated "As we indicated when you initially sent it, my client declines to accept delivery of the deed."
Before the court at this time is the plaintiff's motion filed on June 23, 2009 to open the judgment of foreclosure by sale, to set aside/vacate sale, and to set a new sale date. The motion is based on equitable principles, and several trial court and Appellate Court decisions are cited in the memorandum in support of the motion wherein the purchaser of property at a sale being conducted pursuant to a judgment of foreclosure by sale was allowed, after the sale had been approved by the court, to withdraw his successful bid and have his deposit returned. See Citicorp Mortgage, Inc. v. Burgas, 227 Conn. 116, 121-23 (1993); Citifinancial Mortgage Co., Inc. v. Skyers, 2003 WL 1227638 at *3 (February 27, 2003), Litton Loan Services, LP v. Casano, 2004 WL 1489566 at *2-3 (June 16, 2004).
The plaintiff in this case refers to two alleged factual situations which it claims support the argument that equitable principles should cause the court to grant the motion in question. The first claim is that the City of Meriden recorded a certificate of lien anti-blight program on the Meriden land records on April 25, 2008, shortly after the plaintiff had filed its notice of lis pendens, and shortly before the sale date, that the City's lien took precedence over the plaintiff's judgment lien, and currently totals over $51,000, increasing daily by $100, and that the plaintiff was unaware of the lien until approximately September 2008. The second factual claim made by the plaintiff is that the premises are in much worse condition than the plaintiff realized. The plaintiff allegedly was not allowed to inspect the property before he submitted his bid and he believed that they could be rehabilitated for $25,000-$50,000. However, after he inspected the premises, on or about the time the sale was confirmed by the court, he discovered that it would cost $10,000 to clean up the premises and $50,000-$75,000 to rehabilitate the premises in order to sell them.
A review of the court file discloses that the committee report, which was approved by the court on September 8, 2008, states that a "fact sheet — notice to bidders" was prepared for the date of the sale. Attached to the report is a "fact sheet — notice to bidders" which sets forth all of the relevant information with respect to the property being offered for sale, and the details concerning how the sale will be conducted.
The fact sheet includes a statement that "the property is being sold `as is,' subject to no contingencies whatsoever." The fact sheet also states that the committee makes no warranties, express or implied, concerning the property's condition, and no adjustments will be made for any defects that may be discovered after this date. It also states that committee makes no representations of any kind as to the environmental condition of the property. " All bids are to be made based on the bidder's own information and knowledge of the property, learned through his or her efforts, and not on any representations or comments made by the committee." This last sentence is underlined.
The fact sheet also states that any additional information regarding the property is included as Attachment B. Attachment B includes a list of claims that have been filed with respect to the subject property, including a specific description of the City of Meriden's Certificate of Lien/Anti-Blight Program in the amount of $2,600.00 and accruing at the rate of $100.00 per day against the property, dated and recorded February 25, 2008, which appears under the heading "Title Rundown as of 6/11/08."
It is well established that a foreclosure action constitutes an equitable proceeding. City Savings Bank v. Lawler, 163 Conn. 149, 155, 302 A.2d 252 (1972); First New Haven National Bank v. Rowan, 2 Conn.App. 114, 118, 476 A.2d 1079 (1984). "`[A] court of equity in a foreclosure suit would have full authority to fix the terms and time of the foreclosure sale and to refuse to confirm sales upon equitable grounds where they were found to be unfair or the price bid was inadequate.' . . ." (Citations omitted.) Fidelity Trust Co. v. Irick, 206 Conn. 484, 490, 538 A.2d 1027 (1988), quoting Honeyman v. Jacobs, 306 U.S. 539, 543, 59 S.Ct. 702, 83 L.Ed 972 (1938). In an equitable proceeding, the trial court may examine all relevant factors "to ensure that complete justice is done." Reynolds v. Ramos, 188 Conn. 316, 320, 449 A.2d 182 (1982). "The determination of what equity requires in a particular case, the balancing of the equities, is a matter for the discretion of the trial court." Kakalik v. Bernardo, 184 Conn. 386, 395, 439 A.2d 1016 (1981).
After due consideration of the factual claims of the plaintiff made with reference to its motion seeking to have the court open the judgment of foreclosure by sale, set aside/vacate the sale, and set a new sale date, the court declines to grant the motion. The motion is denied.