Opinion
No. CV 03 0403879 S
July 28, 2004
RULING ON THE MOTION FOR AWARD OF INTERIM COMMITTEE FEES AND COSTS AND ON THE DEFENDANT'S OBJECTION TO THE MOTION
This action was instituted by the plaintiff, Mortgage Electronic Registration Systems, Inc. to foreclose a mortgage executed by the defendant Ethan Book. Pending before the court is the committee's motion for an award of interim fees and costs and the defendant's objection to the motion. The thrust of the objection is that the fees and expenses were incurred within the period of the automatic appellate stay of Practice Book § 61-11(a) ("Except where otherwise provided by statute or other law, proceedings to enforce or carry out the judgment or order appealed from shall be automatically stayed until the time to take an appeal has expired"). The notice of appeal was filed on June 14, 2004, and the committee is seeking the recovery of fees and costs incurred before this date. Thus, the defendant's specific argument is that contrary to Practice Book § 61-11(a), the committee performed services pursuant to the order of sale, but prior to the expiration of the appeal period.
The defendant, Ethan Book, has standing to object to the committee's motions because although the plaintiff may be ordered to pay the committee's fees and disbursements under General Statutes § 49-25, the plaintiff will add these expenses to the debt asserted against the defendant and these expenses will also reduce the proceeds available for distribution to the parties from any foreclosure sale. See Hartford Federal Savings Loan Assn. v. Tucker, 13 Conn.App. 239, 245-46, 536 A.2d 962, cert. denied, 207 Conn. 805, 540 A.2d 373 (1988).
The court appreciates that the defendant's argument has some facial basis but what he fails to appreciate is that the committee was under court order to perform services in preparation for the sale. Neither this court nor the appellate courts have addressed the interface between orders of foreclosure by sale and the provisions of Practice Book § 61-11(a), but obviously to the extent that there is a conflict between a specific court order and a practice book rule for which the court has the authority to waive, the court's order prevails. See generally, Practice Book § 61-11(a) (the automatic stay applies "[e]xcept where otherwise provided by statute or other law"); Practice Book § 61-11(c) (when "the due administration of justice so requires, the judge may at any time after a hearing, upon motion or sua sponte, order that the stay be terminated").
The Appellate Court in Willow Funding Co., L.P. v. Grencom Associates, 63 Conn.App. 832, 838, 779 A.2d 174 (2001), has held that a judgment of foreclosure by sale is an appealable order even in the absence of the scheduling of the sale date. Arguably, a judgment of foreclosure by sale is not a final judgment and is interlocutory in nature because the order does not affect the right of redemption. See generally, id., 837 ("Rights to redemption are not cut off by a foreclosure sale"). Stated differently, a judgment of foreclosure by sale does not provide authority to divest the legal or physical rights possessed by the owner of the equity of redemption. On the other hand, as implicitly held by the Appellate Court in Willow Funding and thus controlling here, a judgment of foreclosure by sale may so definitively affect the owner's contractual rights or interests under the mortgage note as to be a final decision for purposes of appeal. Our Supreme Court has not yet had the opportunity to address these issues.
In this instance, the court issued a judgment of foreclosure by sale on March 8, 2004, ordering a sale of the mortgaged property on May 8, 2004. As a result of this judgment and the court's standing orders on foreclosures by sale, the committee was required to perform duties pursuant to its court-ordered appointment. The committee was required to comply with these orders, notwithstanding the provisions of Practice Book § 61-11(a), as these provisions must be deemed modified and waived as a result of the explicit orders of the court.
The appeal period was also confounded in this particular case because of the defendant's penchant for incessantly filing meritless motions for reconsideration and motions to reargue. Some of these motions affected the appeal period, whereas some of them clearly did not. The court did not reach the plaintiff's claim that these motions were being filed in bad faith, but they all were found meritless and were denied by the court. As a result, the appeal period expired well before the defendant's filing of the notice of appeal. The appeal was timely only because the court, in the exercise of its discretion taking into account the defendant's pro se status, extended the time to appeal. The committee's affidavit filed in support of the motion for interim fees and expenses indicates that much of the committee's time was spent reviewing the various motions and objections filed by the parties, communicating with the parties regarding same, and evaluating how to proceed in light of these filings, the court's rulings on them and the court's orders of sale. Ultimately, the committee filed a motion for advice seeking judicial direction about the exact status of the case, the court's orders, and the automatic stay.
Consequently, assuming arguendo that some of the committee's actions are considered violative of the automatic stay, the court nevertheless has the equitable discretion to authorize the committee to receive payment for its fees and expenses under the particular circumstances presented here. See generally, Hartford Federal Savings Loan Assn. v. Tucker, 13 Conn.App. 239, 250, 536 A.2d 962, cert. denied, 207 Conn. 805, 540 A.2d 373 (1988) ("A committee of sale, as an arm of the court, should not have to act at its own peril in undertaking its obligations under a judgment of foreclosure by sale. Absent fraud or fault on the part of a committee of sale, the committee should be compensated for its efforts and reimbursed for its expenses associated with those acts in furtherance of its obligations, whether or not such acts eventually culminate in a completed sale."). The committee reasonably performed services and incurred fees in compliance with orders of the court without fraud or fault on its part and should be compensated and reimbursed.
Therefore, the committee's motion for interim fees and expenses is granted and the defendant's objection to the motion is overruled. The committee is awarded $1,750 for fees (the court finding this amount reasonable under the circumstances at the rate of $175 an hour), and $1,895.36 for expenses, all to be paid by the plaintiff within 35 days from the date of the notice of this order. See General Statutes § 49-25. The defendant may seek appellate review of this order as may be authorized or allowed by the Practice Book within 20 days from the date of the notice of this order. Any such appeal shall not affect this court's order of payment, so that the plaintiff is required to make the payment notwithstanding any appeal unless otherwise ordered by the Appellate Court.
The court further orders that the defendant Ethan Book is precluded from filing any motions to vacate, reconsider or reargue this ruling. The filing of any such motions shall subject the defendant to sanctions.
So ordered this 28th day of July 2004.
STEVENS, J.