Opinion
KNLCV156024104S
04-05-2017
Nationstar Mortgage, LLC v. David A. Wigfield
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION FOR SUPPLEMENTAL JUDGMENT (#146)
Hon. John J. Nazzaro, J.
The plaintiff, Nationstar Mortgage, LLC, moves for supplemental judgment on the ground that the mortgaged premises were not redeemed from the mortgage, the premises have been sold by Kimberly C. McGee (McGee), and that McGee submitted for approval a conveyance of the premises to the plaintiff, but none of the proceeds of the sale have been brought into court. The defendant argues that the plaintiff's motion for supplemental judgment is directed at a deceased individual, David A. Wigfield, and, therefore, cannot have any legal effect. Furthermore, the defendant asserts that the estate of the decedent is insolvent. The plaintiff contends that orders entered into in a foreclosure action are not entered against the named parties only, but are entered as to all parties who may have acquired an interest in the property subsequent to the recording of the notice of lis pendens relative to the property and action. This motion was argued before the court on February 6, 2017.
DISCUSSION
The lis pendens statute is applicable in foreclosure actions. See Ghent v. Meadowhaven Condominium, Inc., 77 Conn.App. 276, 284-85, 823 A.2d 355 (2003). General Statutes § 52-325(a) provides in relevant part: " [e]ach person . . . whose interest is thereafter obtained, by descent or otherwise, shall be deemed to be a subsequent purchaser or encumbrancer, and shall be bound by all proceedings taken after the recording of such notice, to the same extent as if he were made a party to the action." " The sole purpose of the lis pendens in [a lien foreclosure] action is to give constructive notice to persons who may subsequently acquire an interest in the property, and cause them to be bound by the proceedings." Ghent v. Meadowhaven Condominium, Inc., supra, 77 Conn.App. 284-85. Moreover, the lis pendens statute is not unconstitutional under principles of procedural due process, despite the fact that the statute provides for a hearing only after notice of lis pendens has been filed and it does not allow property owners to substitute security for lis pendens. Williams v. Bartlett, 189 Conn. 471, 476-77, 480-81, 457 A.2d 290, appeal dismissed, 464 U.S. 801, 104 S.Ct. 46, 78 L.Ed.2d 67 (1983). The Connecticut Bar Association, Standards of Title (2002), standard 13.7B(c) provides in relevant part: " [I]f the mortgagor dies subsequent to or during the pendency of a foreclosure action, the mortgagor's heirs or devisees may be substituted for the deceased mortgagor, but the plaintiff is not obliged to move for their substitution as party's defendant, provided the plaintiff recorded a lis pendens at any time prior to the mortgagor's death . . . " (Emphasis added.) " The heirs or devisees of the mortgagor who died pendente lite are deemed to be persons who acquire their interest in the property described in the lis pendens subsequent to the recording of the lis pendens, and are then bound by all proceedings taken in the foreclosure action as if they had been made parties to the action. Section 52-325(a)." Connecticut Bar Association, Standards of Title, supra, standard 13.7, comment two.
In the present case, the plaintiff recorded the lis pendens on May 14, 2015, and the complaint was filed on May 27, 2015. (Plaintiff's Exhibit A, Notice of Lis Pendens, May 14, 2015.) On February 5, 2016, during the pendency of the foreclosure action, the defendant died. (Plaintiff's Exhibit B.) The orders entered in this foreclosure action are not entered solely against the named defendant, but rather, are also entered as to the defendant's heirs or beneficiaries who may have acquired an interest in the property. See § 52-325(a). Here, title to the defendant's real estate passed to his heirs or devisees at the time of his death, and, consequently, those heirs and devisees are bound by the proceedings as the lis pendens was recorded prior to the defendant's death. See Ziulkowski v. Kolodziej, 119 Conn. 230, 233, 175 A. 780 (1934); see also Connecticut Bar Association, Standards of Title, supra, standard 13.7B(c). Accordingly, this court concludes the plaintiff is not obliged to substitute heirs or devisees as party defendants as the lis pendens was recorded at the commencement of the plaintiff's cause of action, prior to the defendant mortgagor's death.
The defendant's argument that General Statutes § 52-599 requires the plaintiff in this case to apply to the court to substitute the decedent's fiduciary within one year after receiving notice of the defendant's death is similarly unavailing. Contrary to the defendant's assertion, § 52-599 does not apply to this action as " fiduciaries are not appropriate parties to a foreclosure." 1 D. Caron & G. Milne, Connecticut Foreclosures: An Attorney's Manual of Practice and Procedure (7th Ed. 2017), § 5-3:1.1, pp. 213-17. A mortgagee is not required to name the executor of an estate in order to foreclose a mortgage, provided no deficiency judgment is sought. Connelly v. Fannie Mae, 251 F.Supp.2d 1071, 1076 (D.Conn. 2003). Moreover, the Connecticut Appellate Court has stated, " [i]t has long been well settled law that an administrator does not have title to real property but that title passes to the heirs subject to the right of administration." (Citations omitted; internal quotation marks omitted.) Tax Collector of City of New Haven v. Miley, 34 Conn.App. 634, 639, 642 A.2d 747 (1994). " The rule applies whether the fiduciary is an executor or administrator." Claydon v. Finizie, 7 Conn.App. 522, 524, 508 A.2d 845 (1986).
Here, because executors and administrators are not proper parties to a foreclosure action, the executor of the defendant's estate does not have interest in the subject property for purposes of this foreclosure action. Accordingly, the plaintiff's supplemental judgment is governed by § 52-325(a), and the defendant's beneficiaries obtained title to the subject property at the time of the defendant's death and during the pendency of this foreclosure action. Therefore, in the opinion of this court, the plaintiff need not move to substitute as a defendant any heirs or beneficiaries of the defendant.
CONCLUSION
For reasons set forth above, the plaintiff's motion for supplemental judgment is granted.
It is so ordered.