Nationswide South v. Batholomew, No. Cv96 0156190 S (Oct. 22, 1997)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]MEMORANDUM OF DECISION The defendants, George M. Bartholomew and Judy T. Bouscaren, seek protection from foreclosure as "underemployed persons" under General Statutes § 49-31f. The plaintiff objects to the application on the ground that "the application was not filed within the statutory fifteen day period following the return date."

General Statutes § 49-31d(6) states: "`Underemployed person' means a person whose earned income during the twelve-month period immediately preceding the commencement of the foreclosure action is (A) less than fifty thousand dollars and (B) less than seventy-five per cent of his average annual earned income during the two years immediately preceding such twelve-month period."

General Statutes § 49-31e(b) states: "A homeowner who is given notice of the availability of the provisions of sections49-31d to 49-31i, inclusive, must make application for protection from foreclosure within fifteen days of the return day."

This court has previously stated that "a court is not vested with the discretion to grant an untimely application for protection from foreclosure." Connecticut Housing Fin. Auth. v.Williams, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. 140836 (April 10, 1995, Hickey, J.).

In the present case, the complaint contains the requisite notice stating: "A PERSON WHO IS UNEMPLOYED OR UNDER-EMPLOYED AND WHO HAS FOR AT LEAST TWO YEARS PRIOR TO THE COMMENCEMENT, OF THIS CT Page 10550 FORECLOSURE ACTION OWNED AND OCCUPIED THE PROPERTY BEING FORECLOSED AS HIS PRINCIPAL RESIDENCE MAY BE ENTITLED TO CERTAIN RELIEF PROVISIONS UNDER SECTION 49-31 (D) TO 49-31 (i), INCLUSIVE, OF THE CONNECTICUT GENERAL STATUTES. YOU SHOULD CONSULT AN ATTORNEY TO DETERMINE YOUR RIGHTS UNDER THIS ACT." Therefore, the defendants were notified to the availability of their statutory rights.

The return date listed on the summons is December 24, 1996. The application for protection was filed on January 14, 1997. January 14, 1997 is more than fifteen days following December 24, 1996. Therefore, the objection (#109) is sustained. The application for protection from foreclosure (#101) is denied.

HICKEY, J.