Opinion
No. CV 92-0128795 S
September 20, 2004
MEMORANDUM OF DECISION ON DEFENDANTS' MOTION FOR LITIGATION EXPENSES
This is an action to foreclose three judgment liens on property of the defendant. On January 14, 2002, this court, confirming the report of an Attorney Trial Referee, entered a final judgment of foreclosure by sale, with a sale date of March 2, 2002. The enforcement of that judgment was stayed by the defendant Judith Becker's appeal to the Appellate Court. The Appellate Court affirmed the Superior Court judgment on July 29, 2003, and remanded the case for the purpose of setting a new sale date. Farhad Moasser v. James A. Becker et al., 78 Conn.App. 305 (2003). The defendant Judith Becker then filed with the Connecticut Supreme Court a Petition for Certification for Review from the Appellate Court which was denied on September 8, 2003. Farhad Moasser v. James A. Becker et al., 266 Conn. 910 (2003).
The original 2002 judgment included an award of litigation expenses and attorneys fees in favor of the plaintiff, incurred through March 5, 2001, which was the date of plaintiff's final trial brief submitted to the Attorney Trial Referee. Since that date, plaintiff has continued to incur attorneys fees and litigation expenses in connection with the appeals and the remand to this court which has not yet been asked to set a new date for the foreclosure sale. By his "Motion for Litigation Expenses" dated May 4, 2004 plaintiff is seeking an award for additional attorneys fees incurred between March 5, 2001 and April 30, 2004 in the amount of $48,647.48.
Plaintiff, citing Connecticut General Statutes Section 52-400c, claims entitlement to such an award because those fees were incurred in the enforcement of rights pursuant to a postjudgment procedure that is held on a claim or defense that the court determines was made for the purpose of harassment or solely for the purpose of delay. But awards of attorneys fees in foreclosure actions, such as this case, are more specifically governed by Section 52-249 of the Connecticut General Statutes, which provides:
(a) The plaintiff in any action of foreclosure of a mortgage or lien, upon obtaining judgment of foreclosure, when there has been a hearing as to the form of judgment or the limitation of time for redemption, shall be allowed the same costs, including a reasonable attorneys fee, as if there had been a hearing on an issue of fact. The same costs and fees shall be recoverable as part of the judgment in any action upon a bond which has been substituted for a mechanic's lien.
(b) In any foreclosure judgment when a lis pendens had been recorded after a title search of real property, the court shall determine a reasonable fee to be paid for the search and tax it as part of the costs.
It has been held that Section 52-249 "mandates" an award of reasonable attorneys fees when there has been a hearing as to the form of judgment of foreclosure or the limitation for the time for redemption, and that the award of attorneys fees under those circumstances is a question of law to be decided by the court, and not by an Attorney Trial Referee. Original Grasso Construction Co. v. Shepard, 70 Conn.App. 404, 419 (2002). Furthermore, the award of attorneys fees must be made " upon obtaining judgment of foreclosure." (Emphasis in original.) Id. 70 Conn.App. at 418.
In this matter, the case has been remanded by the Appellate Court to re-enter a new judgment of foreclosure by sale, which would clearly be "a judgment of foreclosure" and would both establish the form of judgment (foreclosure by sale) and the new sale date which would be a limitation of the defendants' time for redemption. The plaintiff's request for an additional award of attorneys fees should therefore be addressed to the court at the time that the court acts on the motion to re-enter judgment of foreclosure by sale and to set a new sale date.
Accordingly, the plaintiff's Motion for Litigation Expenses dated May 4, 2004 is denied without prejudice to being renewed in conjunction with a motion to set a new sale date.
BY THE COURT:
Alfred J. Jennings, Jr., Judge