Federal Dep. Ins. v. Renwood Mansfield, No. Cv 92 51169 S (Apr. 10, 1995)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]MEMORANDUM OF DECISION CT Page 3737 Plaintiff has moved for summary judgment against the defendant Renwood Mansfield Associates Limited Partnership (Motion dated August 3, 1994), the holder of a mortgage following plaintiff's mortgage on the subject property. Said defendant opposes the motion claiming that there was a merger of plaintiff's mortgage with the subject property when plaintiff accepted a deed to the property in lieu of foreclosure. Said defendant also claims that there is no debt to the plaintiff and absent a debt there can be no mortgage. Plaintiff claims that under Glotzer v. Keyes, 125 Conn. 227 (1939), the existence of an intermediate estate (i.e. said defendant's mortgage) precludes merger. Defendant admits the existence of the intermediate estate but claims, nonetheless, intent to merge or not to merge is relevant, and that the issue of intent is a factual issue. Plaintiff claims that the debt of the original mortgagor of its mortgage was not released and that the borrowers were merely given a covenant not to sue. Defendant claims that is not sufficient evidence to show a debt still exists and wants to determine whether plaintiff's books still list a debt being due. Defendant also wants to inquire as to other factual matters.

Summary judgment should not be granted if a genuine, material fact in dispute exists. Defendant has requested a continuance under Connecticut Practice Book § 382 to obtain discovery so as to be able to specify disputed issues of fact. Defendant is entitled to such a continuance for such purpose, and in light of this being an equitable action, the court should give the defendant every reasonable opportunity to contest the motion for summary judgment.

Accordingly, the motion for summary judgment is continued until there is compliance with defendant's discovery requests. Plaintiff should re-claim the motion for summary judgment for the short calendar following said compliance. Plaintiff has thirty-two days from the date of this decision in which to respond to the Requests for Disclosure. As part of the disclosure, plaintiff is ordered to submit to defendant and to the court an affidavit of debt and documents/information setting forth the conveyance tax accompanying the deed accepted in lieu of foreclosure.

The court has reviewed this file and the foreclosure file, CV 91 0048107 S, in which the defendant Renwood Mansfield Associates Limited Partnership is foreclosing on its mortgage which is the subject of this action. The cases should be heard and tried CT Page 3738 together. Accordingly, defendant's motion to consolidate dated February 9, 1995 is granted.

Rittenband, J.