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Case Law Updates: Connecticut

Posted By USFN, Tuesday, May 1, 2018
Updated: Tuesday, May 1, 2018

May 1, 2018

by Adrienne Roach
Bendett & McHugh, P.C.
USFN Member (Connecticut, Maine, Vermont)

Ejectment or Eviction?
For some time, there has been a lack of Connecticut case law concerning those individuals who are covered under a court-issued execution of ejectment. Recently, a judge in the Bridgeport Superior Court issued an unpublished opinion under docket number FBT-CV-17-6065783-S. It sheds some light on who can be removed from a foreclosed property without the requirement of filing a separate eviction action.

In the subject case, the father of the former mortgagor applied for a temporary injunction to prevent the foreclosing plaintiff (in whom title had vested) from effectuating a lockout against him. The father contended that he was not named in the foreclosure action and, thus, the court had no jurisdiction over him. In ruling in favor of the foreclosing plaintiff, the court noted that a close relative of the mortgagor has no claim of any independent right of possession and, therefore, may be dispossessed under the execution of ejectment naming the mortgagor.

C.G.S. § 49-31p provides that the plaintiff take title “subject to … the rights of any bona fide tenant as of the date absolute title vests ….” Nevertheless, the court noted that under C.G.S. § 49-31p(b) “a lease or tenancy shall be considered bona fide only if (1) the mortgagor or the child, spouse or parent of the mortgagor under the contract is not the tenant.”

Moreover, the court upheld the bank’s ancillary argument that “even if [the father] were a tenant at the property, he can be evicted as a person in privity with the mortgagor under C.G.S. § 49-22(a), which provides in relevant part: ‘the court may, if it renders judgment in [plaintiff’s] favor and finds that he is entitled to the possession of the land, issue execution of ejectment … provided no execution shall issue against any person in possession who is not a party to the action except a transferee or lienor who is bound by the judgment by virtue of a lis pendens.’”

The court referenced further precedent, citing to a case also involving a foreclosed mortgagor’s family member: “In Wachovia Bank v. Hennessey [Conn. Super. Ct., Jud. Dist. of Hartford, Docket No. CV-05-4016481 (Oct. 25, 2007, Satter, J.T.R.), 2007 WL 4105504] the court held, in accord with the common law of other states, that a family member of a mortgagor foreclosed upon does not have to be named in a foreclosure action to have an execution of ejectment issued. The Hennessey court cited Tappin v. Homecomings Financial Network, Inc., 265 Conn. 741 (2003), as applicable to the due process rights of tenants who do have an independent claim to possession in their own right. Judge Satter denied the injunction against ejectment sought by the 23-year-old son of the former mortgagors who had no claim of any independent right of possession.”


Although the moving party (the foreclosed mortgagor’s son) did not prevail in this recent case, it should be noted that the standard applied by the court was that of a temporary injunction, where the movant must show that: “(1) it is likely to succeed on the merits after trial; (2) it faces immediate and irreparable harm absent an injunction; and (3) the harm it faces without the injunction is greater than the injunction would do to the defendants,” referencing Griffin Hospital v. Commission on Hospitals and Health Care, 106 Conn. 451, 456-58 (1985).

In the case at hand, the moving party failed to meet his burden of showing that he had a legal right that would be violated by enforcement of the execution of ejectment, that enforcement of the ejectment would cause him immediate and irreparable harm for which he had no adequate remedy at law, nor the ultimate remedy sought by this lawsuit. The court noted that “[T]here is an often-used remedy in the form of a Motion for Stay of Execution of Ejectment addressed to the court’s inherent powers as a court of equity.” The moving party here failed to make use of such a motion. The court therefore found that the moving party: (1) failed to sustain his burden of proof for issuance of a temporary injunction; (2) failed to make use of an adequate remedy other than the extreme remedy of injunction; and that (3) “the balance of the equities under all the circumstances favors the [bank]’s rights as becoming owner of the property by strict foreclosure some eight months ago after five years of litigation.”

The court left the door open on motions for stay of execution of ejectment filed by relatives of the mortgagor, primarily by its suggestion that the moving party in this case could have elected to file that motion instead. It will be interesting to see whether Connecticut courts develop case law on that issue in the future.

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Spring USFN Report

Note for consideration of the USFN Award of Excellence: This article is a "Feature."

 

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