New England Bank v. Zivic, No. Cv 99 0079036s (Jan. 19, 2001)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION RE: DEFICIENCY JUDGMENTJudgment of strict foreclosure was granted by this court on September 11, 2000. Title vested in the substitute plaintiff, Webster Bank on October 5, 2000 on the subject property, the Tollgate Hill Inn Restaurant, 571 Torrington Road, Litchfield, CT.

Webster Bank filed a motion for deficiency judgment which was heard by this court on January 8, 2001. The plaintiff's appraiser, John W. Nitz, testified as to the Fair Market Value (Hereinafter referred to as "FMV") of the subject property as of the date that title vested in the plaintiff. The plaintiff also introduced the appraisal report prepared by Mr. Nitz. Mr. Nitz concluded that the "FMV" of the Real Estate was $1,230,000.00. Mr. Nitz testified that he arrived at his figure after reviewing both comparable sales of other like properties and by also calculating the income capitalization approach. Mr. Nitz "FMV" for the real estate was arrived at by deducting the value for furniture, fixtures and equipment of $150,000.00 from the "FMV" of the going-concern which he calculated to be $1,380,000.00.

The defendant, Mr. Zivic, provided testimony from the previously court-appointed appraiser, Arthur P. Oles. Mr. Oles was appointed to conduct an appraisal of the subject property by this court, (Frazzini,J.) for the purpose of establishing the "FMV" of the subject prpperty. Mr. Oles testified that he concluded that the "FMV" of the subject premises was $1,750,000 as of June 29, 2000. Mr. Oles further testified that this figure included furniture, fixtures and equipment which he valued at $200,000.00. He concluded that the "FMV" of the real estate alone would be $1,550,000.00. A review of Mr. Oles appraisal report, as well as, his testimony indicate that he also relied on comparable sales and the income capitalization approach in arriving at his value. CT Page 1069

The court has reviewed the appraisals provided by both parties in detail. The court concludes that the "FMV" of the real estate which was the subject of this foreclosure action was $1,400,000.00 on October 5, 2000, the date on which title vested.

The deficiency judgment is calculated as follows:

Judgment debt as previously found by the court as of October 25, 1999 $1,149,368.29

Attorney's fees previously awarded by the court $11,350.00

Appraisal fee previously awarded by the court $2,000.00

Title search fee previously awarded by the court $150.00

Interest from October 25, 1999 to October 5, 2000 $101,049.30 (346 days at $292.05 per diem)

Committee's fees and expenses from court-ordered sale $10,763.43

Appraisal fee from court-ordered sale $2,500.00

Subtotal (Debt and expenses previously approved by court) $1,277,181.02

Priority liens paid by plaintiff $208,803.68

Total debt as of 10/05/00 $1,485,984.70

Less "FMV" of real estate on 10/05/00 ($1,400,000.00)

Deficiency amount as of 10/05/00 $85,984.70

Plus: Interest from 10/5/00 to 1/18/01 $2,473.80 (10% per annum for 105 days; $23.56 per diem)

Plus: Additional attorneys fees $4,147.50

Plus: Additional appraiser's fee $5,500.00

TOTAL DEFICIENCY JUDGMENT: $98,106.00

Agati, J. CT Page 1070