Opinion
No. CV 05-4016481
October 25, 2007
MEMORANDUM OF DECISION
In this foreclosure action in which a judgment of strict foreclosure has been entered in favor of the plaintiff Wachovia Bank against the defendants J. Martin Hennessey and Maureen F. Hennessey and in which the clerk has issued an execution of eviction, defendants, by way of order of show cause, seek a temporary injunction restraining execution of ejectment and move to quash the execution of ejectment on the ground that defendants' twenty-three-year-old son, Martin F. Hennessey, lives in the premises and is not named a party in the foreclosure action.
Defendants rely on Conn. Gen. Stat. § 49-22(a) which provides that a plaintiff in a foreclosure action, obtaining judgment in his favor and obtaining a finding that he is entitled to possession, may be issued an execution of ejectment against the person or persons in possession "provided no execution shall issue against any person in possession who is not a party to the action . . ." Defendants claim their adult son lives in the subject premises, has not been made a party and as a consequence no execution can issue.
At the outset, the court determines that the defendants have no standing to assert that claim. The right to defend against ejectment is in the adult son. He has not moved to quash the ejectment. The defendants have no right to act for him. As stated in Stamford Hospital v. Vega, 936 Conn. 646, 657 (1996), "in general, a party does not have standing to raise rights belonging to another."
However, defendants' claim is worth responding to on its merits because the issue has not been decided by Connecticut courts and because it implicates a fundamental problem of statutory interpretation: how to make sense of a statute.
On the one hand, Conn. Gen. Stat. § 1-2z instructs that if the meaning of a statute "is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered."
On the other hand, the Supreme Court has declared in State v. Courchesne, 262 Conn. 537, 577-78 (2003),
"In seeking to determine that meaning, we look to the words of the statute itself, to the legislative history and the circumstances surrounding its enactment, to the legislative policy which was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. Thus we do not follow the plain meaning rule."
Although § 1-2z was enacted in response to Courchesne, it cannot direct the courts how to construe statutes. That is the quintessential role of the judiciary and the legislature by invading that sphere violates the doctrine of separation of powers. As Justice David M. Borden said in a concurring opinion in Kinney v. Pacific Employees Ins. Co., 277 Conn. 398, 418 (2006), "Under the doctrine of separation of powers, there is authority that the interpretation of statutes falls exclusively within the judicial sphere."
In the instant case, if the words in § 49-22(a), "no execution shall issue against any person in possession who is not a party to the action" are taken literally, then defendants' son, being a person in possession and not a party, cannot have an execution issued against him.
However, if the Courchesne principle is applied, this court can look for meaning of the words of § 49-22(a) in legislative history and in common-law principles. In Tappin v. Homecomings Financial Network, Inc., 265 Conn. 741 (2003), the Supreme Court explored the legislative history of § 49-22(a) and determined that "person" in that statute was intended to refer to a tenant. It quoted from the remarks of Senator Howard T. Owens and Representative Martin M. Looney to that effect.
The settled common law of other states is that a family member of a mortgagor foreclosed upon does not have to be named as a party in the foreclosure action to have an execution of ejectment issued. As noted in 58 ALR 2d (701, 773), "Apart from situations in which the wife claims an interest in real property in her own right, it has been generally held that she may be dispossessed under execution of a judgment rendered against the husband in an action for recovery of the property, although she was not a party to that proceeding." The principle is supported by cases in the states of Alabama, Arkansas, California, Pennsylvania, South Carolina, Texas and Washington. The reason for the rule is that the wife's possession is in privity with that of the husband's and does not arise independent of his.
In contrast, tenants have a separate, legal right of possession. As noted in Tappin v. Homecomings Financial Network, Inc., supra and Federal Home Loan Mortgage Corp. v. Van Sickle, 52 Conn.App. 37 (1999), that entitles tenants, in accordance with due process, to be made a party in the foreclosure action before they can be ejected. But members of the family of the mortgagor, servants and guests live in the house by leave of the homeowner and they lose their right of occupancy when the homeowner-mortgagor loses his.
Moreover, it would be "absurd" and "unworkable" to require the foreclosing mortgagees to make such occupants parties to the foreclosure action in order to eject them when they have no independent right of possession. It would add significantly to the costs of bringing the action, costs that are ultimately borne by redeeming mortgagors. Such a requirement would also defeat the spirit of the rules in our Practice Book that foreclosure actions proceed expeditiously. Suffield Bank v. Berman, 25 Conn.App. 369, 373 (1991).
For the foregoing reasons, the court denies defendants' application for a temporary injunction and denies their motion to quash the execution of ejectment.