Citicorp Mortgage, Inc. v. Mehta, No. Cv 92 50832 S (Sep. 9, 1994)
Opinion of the Court
The defendant has filed an objection to the motion on the ground that the relief obtained by the plaintiff from the automatic stay "permitted [it] to complete its foreclosure action, including
CT Page 9089 a deficiency judgment", and that its failure to file the motion for a deficiency judgment "within thirty days after the time limited for redemption has expired" pursuant to §
The facts have been stipulated by the parties for the purpose of argument on the motion and may be summarized as follows. A judgment of strict foreclosure was entered in this action on January 25, 1993 and after making findings that the fair market value of the property was $289,000.00 and the plaintiff's debt was $421,027.29, the court set a law day of June 21, 1993 for the named defendant and his wife, Anjana R. Mehta, the owners of the equity of redemption. On June 18, 1993 the defendants filed a petition in the United States Bankruptcy Court in Hartford seeking relief under Chapter 7.
On June 23, 1993 the plaintiff filed a motion, accompanied by a proposed order, in the bankruptcy court, seeking relief from the automatic stay of
On July 26, 1993 this court granted the plaintiff's motion to reopen the prior judgment and set a new law day of August 23, 1993 for the defendants with subsequent days for subsequent encumbrancers, and thereafter, on August 25, 1993 title to the property vested in the plaintiff. On or about September 17, 1993 the named defendant filed a motion to dismiss the bankruptcy case which was granted by the court in an order dated October 22, 1993 which "set aside and vacated" the original order for relief and dismissed the petition that had been filed on June 18, 1993.
All of the relevant documents referred to in the stipulation CT Page 9090 have been attached thereto, including joint Exhibit 2, which is the notice which was issued in this case by the bankruptcy court on June 24, 1993 entitled "Notice of Commencement of Case under Chapter 7 of the Bankruptcy Code, Meeting of Creditors, and Fixing of Dates". The title of the third paragraph of that document is"CREDITORS MAY NOT TAKE CERTAIN ACTIONS", and is obviously intended to be an explanation in "plain language" of the scope and extent of the Bankruptcy Code's "automatic stay" and the possible consequences that creditors may suffer for taking actions that violate its provisions.
It should be particularly noted that throughout that paragraph, as in § 362(a) of the Code itself, no distinction is made between actions by creditors to obtain possession of property and those to recover money. For example, a "creditor" is defined as "anyone to whom the debtor owes money or property", prohibited actions against debtors include any attempts "to collect money owed to creditors or to take property of the debtor" as well as "starting or continuing foreclosure actions . . .", and the section concludes with a cautionary instruction that "[a] creditor who is considering taking action against the debtor or the property of the debtor should review Sec. 362 of the Bankruptcy Code and may wish to seek legal advice."
Although it has been suggested by way of dictum in various contexts by our appellate courts that the deficiency judgment procedure "is the functional equivalent of a suit upon the note", there can be no question that it is at least "an adjunct to the mortgage foreclosure action." FDIC v. Voll, 12 Conn. L. Rptr. No. 4, 125 (August 22, 1994, Pittman, J.). Nevertheless, the initial determination of strict foreclosure "is a common law, nonstatutory process upon which §
The deficiency judgment procedure, "although procedurally a part of the foreclosure action, serves the separate function of providing for recovery on the balance of the note which was not satisfied by the strict foreclosure." Maresca v. DeMatteo,
The terms of an order modifying the automatic stay must be strictly construed because a stay under § 362 "freezes in place" all proceedings against the debtor and the continuation of any proceeding can derive its legitimacy only from the express language of the bankruptcy court's order. Casperone v. Landmark Oil GasCorp.,
In Virginia Hill, the court's order allowed the secured creditor "to assert its rights against Debtor's property under applicable law, including, without limitation, the right to foreclose upon the Debtor's unsold residential condominium units . . .". The court found that the automatic stay had been violated based on the debtor's claim that the court's order permitted foreclosure but did not permit the creditor to proceed for a deficiency judgment or otherwise collect or attempt to recover claims against the debtor. Id. 85.
Where the bankruptcy court's order granted relief from the automatic stay "with respect to the property securing its claim [and to] foreclose upon and to exercise all other remedies with respect to said property to which it is entitled under applicable law" it was held that action taken by the creditor to comply with the state's procedural requirements for obtaining a deficiency judgment violated the automatic stay. Matter of Russell Corp.,
In this state, the deficiency judgment procedures under §
The court therefore finds that the relief from stay order issued by the bankruptcy court in this case did not clearly and unambiguously authorize the plaintiff to proceed to obtain an in personam judgment against the defendant for a deficiency under §
The suspension of the time periods imposed by state law for commencing or continuing a civil action against a debtor in a state court "is an essential counterpart of the automatic stay [and it is] likely that the Congress, having provided the debtor with a stay to protect his interests, would have intended the creditor to have coextensive rights to revive causes of action that were unenforceable while the bankruptcy stay was in effect." Bridgeportv. Debek,
Under the facts of this case the filing of the motion on November 8, 1993 was timely in that it was within thirty days of the date that notice was presumably sent of the dismissal of the petition and the termination of the stay on or about October 22, 1993.
For the foregoing reasons the plaintiff's motion for deficiency judgment is granted and the defendant's objection thereto is overruled.
Hammer, J. CT Page 9093
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