Rockstone Capital, LLC v. Sanzo ( 2019 )


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    ROCKSTONE CAPITAL, LLC
    v. JOHN SANZO ET AL.
    (SC 20041)
    Robinson, C. J., and Palmer, McDonald, D’Auria,
    Mullins, Kahn and Ecker, Js.
    Syllabus
    The plaintiff brought an action seeking to foreclose judgment liens on certain
    real property owned by the defendants J and M. The liens had been
    recorded to secure a debt owed in connection with a prior judgment
    rendered against J and M. The parties thereafter entered into a forbear-
    ance agreement pursuant to which J and M were to make payments on
    the debt owed and to grant the plaintiff a mortgage on their property
    securing those obligations, and the plaintiff was to refrain from pursuing
    the foreclosure action for as long as J and M made their required pay-
    ments. The mortgage included a waiver of the statutory (§ 52-352b [t])
    homestead exemption for J and M’s property. When J and M defaulted
    on their payments under the forbearance agreement, the plaintiff filed
    a motion to foreclose on the judgment liens. J and M objected to the
    motion and invoked the homestead exemption, and the plaintiff with-
    drew its claim as to the judgment liens and amended its complaint,
    seeking instead to foreclose on the mortgage. The trial court determined
    that the forbearance agreement was void as against public policy and
    denied the plaintiff’s claim to foreclose on the mortgage. The trial court
    also determined that the homestead exemption should apply. The court
    rendered judgment for the plaintiff on the judgment liens, subject to
    the homestead exemption, but did not determine the amount of the
    debt, the manner of foreclosure or set law days. The plaintiff appealed
    to the Appellate Court from the denial of its request to foreclose on the
    mortgage, and J and M cross appealed from that portion of the judgment
    granting foreclosure of the judgment liens. The Appellate Court con-
    cluded that it had jurisdiction over the plaintiff’s appeal because the
    trial court’s denial of the plaintiff’s claim to foreclose on the mortgage
    constituted a final judgment and reversed the trial court’s judgment on
    the ground that the homestead exemption did not apply to a consensual
    lien such as a mortgage. The Appellate Court also concluded that it had
    jurisdiction over the cross appeal filed by J and M because, although it
    was not based on a final judgment, it was inextricably intertwined with
    the plaintiff’s appeal, which was based on a final judgment. The Appellate
    Court reversed the trial court’s judgment on the merits of the cross
    appeal because the plaintiff’s operative complaint did not seek foreclo-
    sure of the judgment liens. On the granting of certification, J and M
    appealed to this court. Held:
    1. The Appellate Court had jurisdiction over the plaintiff’s appeal from the
    trial court’s denial of its request to foreclose on the mortgage, as the
    trial court’s denial of that request, which was the only relief the plaintiff
    sought in its operative complaint, constituted a final judgment, and,
    contrary to the claim made by J and M that the trial court did not render
    a final judgment because it ruled sua sponte for the plaintiff on the
    judgment liens and failed to set the amount of debt, manner of foreclo-
    sure or law days, that ruling did not defeat the final judgment rendered
    on the mortgage, as the plaintiff did not seek foreclosure of the judgment
    liens in its operative complaint; moreover, this court concluded, after
    examining the record and considering the briefs and arguments of the
    parties, that certification was improvidently granted on the issue of
    whether the Appellate Court had jurisdiction over the cross appeal from
    the trial court’s ruling on the judgment liens, and, therefore, the present
    appeal was dismissed as to that issue.
    2. The plaintiff having sought, in its operative complaint, to foreclose on
    the mortgage that J and M voluntarily had granted to it, which was a
    consensual lien, rather than to foreclose on the nonconsensual judgment
    liens that previously had been filed, the Appellate Court correctly con-
    cluded that the homestead exemption did not apply, and, contrary to
    the claim of J and M, the mortgage was enforceable and was not contrary
    to the text of § 52-352b (t) or public policy: this court’s plain reading
    of the text of § 52-352b (t) led it to reject the claim of J and M that a
    mortgage securing preexisting judgment debt could not be a consensual
    lien under that statute, and nothing in the statute (§ 52-350f) limiting a
    judgment creditor’s collection efforts to nonexempt assets prohibits
    parties from restructuring a judgment debt into a consensual lien, to
    which the homestead exemption would not apply, as the parties did in
    the present case; moreover, waiver of the homestead exemption through
    a mortgage is routinely permitted, and practical considerations sup-
    ported the allowance of such a waiver inasmuch as disallowing it would
    severely restrict the availability of much needed credit to debtors, and
    as J and M appeared to deliberately choose to mortgage their home and
    receive forbearance from foreclosure on the judgment liens in exchange
    for the mortgage.
    Argued January 15—officially released July 16, 2019
    Procedural History
    Action to foreclose judgment liens on certain real
    property owned by the named defendant et al., and for
    other relief, brought to the Superior Court in the judicial
    district of Fairfield and tried to the court, Hon. Richard
    P. Gilardi, judge trial referee, who, exercising the pow-
    ers of the Superior Court, rendered judgment in part
    for the plaintiff, from which the plaintiff appealed and
    the named defendant et al. cross appealed to the Appel-
    late Court, DiPentima, C. J., and Beach and Bishop, Js.,
    which reversed the trial court’s judgment and remanded
    the case for further proceedings; thereafter, the named
    defendant et al., on the granting of certification,
    appealed to this court. Affirmed in part; appeal dis-
    missed in part.
    Matthew K. Beatman, with whom, on the brief, was
    John L. Cesaroni, for the appellants (named defendant
    et al.).
    Houston Putnam Lowry, with whom, on the brief,
    was Dale M. Clayton, for the appellee (plaintiff).
    David Lavery and Loraine Martinez filed a brief for
    the Connecticut Fair Housing Center as amicus curiae.
    Opinion
    D’AURIA, J. If a creditor forecloses on a debtor’s
    home, the debtor might be entitled to keep a portion
    of the home’s value, whatever the amount of the debt.
    This debtor protection, known as the homestead
    exemption, is available when the creditor forecloses on
    a judgment lien, but not on a consensual lien. See Gen-
    eral Statutes § 52-352b (t).1 In this case, the plaintiff,
    Rockstone Capital, LLC (Rockstone), held judgment
    liens against the defendants John Sanzo and Maria
    Sanzo.2 The parties later agreed to a consensual lien in
    the form of a mortgage to secure the debt. Now, the
    Sanzos have defaulted on the mortgage payments, and
    Rockstone seeks to foreclose on the mortgage. The
    primary issue on appeal is whether the Sanzos are enti-
    tled to the homestead exemption. We conclude they
    are not.
    The trial court found the following facts, as stipulated
    by the parties and contained in exhibits submitted to
    the court. The Sanzos’ primary residence is in Monroe
    and most recently was valued at $500,000. In 2000, Fleet
    National Bank (Fleet) secured a judgment against them
    for about $100,000. To secure the debt, it recorded judg-
    ment liens on the Monroe property. Fleet later assigned
    its interests in the judgment and judgment liens to
    Rockstone.
    In 2008, Rockstone initiated this action to foreclose
    on the judgment liens because the Sanzos had defaulted.
    The parties, however, entered into a forbearance agree-
    ment that halted the action. Under the agreement, the
    Sanzos were to make regular payments on the amount
    outstanding on the judgment liens and additional inter-
    est, costs, and fees, and to grant Rockstone a mortgage
    on the Monroe property securing these obligations. In
    exchange, Rockstone agreed to refrain from pursuing
    this foreclosure action for as long as the Sanzos made
    their payments. The parties stipulated that they were
    represented by counsel and that their agreement was
    a commercial agreement.
    The record also reflects the following procedural his-
    tory. In 2014, Rockstone resumed this action, filing a
    motion to foreclose on the judgment liens because the
    Sanzos had defaulted on their obligations under the for-
    bearance agreement. The Sanzos objected to the motion
    and invoked the homestead exemption. In response,
    Rockstone amended its complaint to seek foreclosure
    on the mortgage, instead of on the judgment liens. The
    Sanzos filed an answer, including a special defense that
    claimed the mortgage was a de facto waiver of the home-
    stead exemption, which was contrary to public policy.
    The action was submitted to the trial court on stipula-
    tions and exhibits submitted by the parties. Following
    an initial decision that the parties agreed was improper,3
    the court issued a corrected memorandum of decision.
    In it, the court acknowledged that the Sanzos had ‘‘vol-
    untarily enabled [Rockstone] to seek recovery without
    the homestead exemption’s applicability’’ and that ‘‘the
    homestead exemption would ordinarily not be applica-
    ble to a mortgage created by a voluntary agreement
    such as the one at hand.’’ But based on the ‘‘unique
    procedural history’’ of the case, in which ‘‘the progres-
    sion of this action has been to get around the homestead
    exemption,’’ the court decided that the exemption
    should apply nonetheless. It held that the forbearance
    agreement was void as against public policy and there-
    fore denied Rockstone’s claim to foreclose on the mort-
    gage. It also rendered judgment for Rockstone on the
    judgment liens, subject to the homestead exemption,
    even though Rockstone had amended its complaint to
    withdraw its claim regarding the judgment liens. The
    court did not determine the amount of debt, manner
    of foreclosure or law days for the judgment lien fore-
    closure.
    Rockstone appealed and the Sanzos cross appealed
    to the Appellate Court. Rockstone appealed from the
    denial of its request to foreclose on the mortgage, and
    the Sanzos cross appealed from the judgment on the
    judgment liens. Because the trial court had not deter-
    mined the amount of debt, manner of foreclosure or
    law days for the judgment lien foreclosure, the Appel-
    late Court ordered a hearing to determine whether it
    should dismiss the appeals for lack of a final judgment.
    Following that hearing, the Appellate Court ordered the
    trial court to articulate its ruling and, after receiving
    the articulation, ordered the parties to address the final
    judgment question in their merits briefs to that court.
    The Appellate Court concluded that it had jurisdiction
    over Rockstone’s appeal because the trial court’s denial
    of Rockstone’s claim to foreclose on the mortgage con-
    stituted a final judgment. Rockstone Capital, LLC v.
    Sanzo, 
    175 Conn. App. 770
    , 778, 
    171 A.3d 77
    (2017). It
    reversed the judgment of the trial court on the merits
    of Rockstone’s appeal, holding that the homestead
    exemption did not apply to a consensual lien such as
    a mortgage. 
    Id., 784. The
    Appellate Court also concluded
    that it had jurisdiction over the Sanzos’ cross appeal
    because, although it was not based on a final judgment,
    it was inextricably intertwined with Rockstone’s
    appeal, which was based on a final judgment. 
    Id., 786. Finally,
    it reversed the judgment of the trial court on
    the merits of the cross appeal because Rockstone’s
    operative complaint had not sought foreclosure on the
    judgment liens. 
    Id., 788–89. The
    Sanzos petitioned this court for certification to
    appeal, which we granted, limited to the following
    issues: ‘‘1. Did the Appellate Court properly conclude
    that the appeal and cross appeal were taken from a
    final judgment of the trial court? 2. If the answer to the
    first question is yes, did the Appellate Court properly
    conclude that the plaintiff’s postjudgment mortgage
    encumbering the same property and the same debt as
    the plaintiff’s judgment liens was a consensual lien, and
    not a de facto waiver of the homestead exemption; see
    General Statutes § 52-352b (t); that would be void as a
    matter of public policy?’’ Rockstone Capital, LLC v.
    Sanzo, 
    327 Conn. 968
    , 
    173 A.3d 391
    (2017). We affirm
    the judgment of the Appellate Court with respect to
    its conclusions that the appeal was taken from a final
    judgment and that the mortgage was a consensual lien.
    We conclude that certification was improvidently
    granted with respect to whether the cross appeal was
    taken from a final judgment and dismiss that portion
    of the appeal.
    I
    As threshold issues, we must address whether the
    Appellate Court had jurisdiction over the appeal and
    cross appeal. ‘‘The lack of a final judgment implicates
    the subject matter jurisdiction of an appellate court to
    hear an appeal. A determination regarding . . . subject
    matter jurisdiction is a question of law [and, therefore]
    our review [as to whether the Appellate Court had juris-
    diction] is plenary.’’ (Internal quotation marks omitted.)
    Ledyard v. WMS Gaming, Inc., 
    330 Conn. 75
    , 84, 
    191 A.3d 983
    (2018). Subject to certain exceptions, an appel-
    late court’s subject matter jurisdiction ‘‘is limited to
    final judgments of the trial court.’’ (Internal quotation
    marks omitted.) 
    Id. A final
    judgment exists ‘‘[w]hen
    judgment has been rendered on an entire complaint
    . . . .’’ Practice Book § 61-2. In this case, Rockstone’s
    operative complaint exclusively sought foreclosure of
    the mortgage, and the trial court denied the relief
    requested. We conclude that this constitutes a final
    judgment and, thus, that the Appellate Court had juris-
    diction over the appeal.
    Once the trial court denied Rockstone’s request to
    foreclose on the mortgage, it then sua sponte ruled in
    favor of Rockstone on the judgment liens, but did not
    set the amount of debt, manner of foreclosure or law
    days. Therefore, the Sanzos argue, the trial court did
    not render a final judgment. See Morici v. Jarvie, 
    137 Conn. 97
    , 103, 
    75 A.2d 47
    (1950) (‘‘[a final] judgment
    [in a foreclosure action] must either find the issues for
    the defendant or [find the issues for the plaintiff and]
    determine the amount of the debt, direct a foreclosure
    and fix the law days’’). We disagree. This argument
    ignores the undisputed predicate fact that Rockstone
    did not seek foreclosure on the judgment liens in its
    operative complaint. As stated previously, the com-
    plaint sets the parameters for determining a final judg-
    ment. See Practice Book § 61-2. Particularly ‘‘under the
    unusual circumstances of this case’’; Rockstone Capital,
    LLC v. 
    Sanzo, supra
    , 
    175 Conn. App. 786
    ; in which the
    parties agree that there was no basis to rule on the
    judgment liens; 
    id., 788; the
    trial court’s ruling on the
    judgment liens, which fundamentally exceeded the
    scope of the complaint, does not defeat the final judg-
    ment it rendered on the mortgage.
    After examining the entire record on appeal and con-
    sidering the briefs and oral arguments of the parties,
    we also conclude that certification was improvidently
    granted on the question of whether the Appellate Court
    had jurisdiction over the Sanzos’ cross appeal from the
    trial court’s ruling on the judgment liens. The parties
    agree that the ruling on the judgment liens was
    improper. 
    Id. Moreover, the
    trial court stated in its artic-
    ulation: ‘‘Once the court voided the forbearance
    agreement and underlying mortgage, the remaining mat-
    ter to be resolved involved judgment on the original
    judgment liens. . . . It was the court’s intention to pre-
    serve the [Sanzos’] right to the homestead exemption
    while preserving [Rockstone’s] right to sue on the origi-
    nal judgment liens.’’ (Citations omitted.) In other words,
    if the trial court had concluded, as we do, that the
    mortgage was enforceable, it never would have reached
    the judgment liens. Therefore, the appeal is dismissed
    as to that issue.
    II
    The primary issue in this case is whether the mort-
    gage that the Sanzos granted to Rockstone is enforce-
    able. The Sanzos argue it is not because it deprives
    them of the homestead exemption, which is contrary
    to both the text of § 52-352b (t) and public policy. We
    disagree. Under the plain language of the statute, a
    homestead exemption is not available to a mortgagor.
    Nor, on the facts of this case, is the granting of a mort-
    gage a violation of public policy. Therefore, we con-
    clude that the mortgage is enforceable.
    ‘‘We exercise plenary review over questions of statu-
    tory interpretation, guided by well established princi-
    ples regarding legislative intent. See, e.g., Kasica v.
    Columbia, 
    309 Conn. 85
    , 93, 
    70 A.3d 1
    (2013) (explaining
    plain meaning rule under General Statutes § 1-2z and
    setting forth process for ascertaining legislative
    intent).’’ State v. Daniel B., 
    331 Conn. 1
    , 12–13, 
    201 A.3d 989
    (2019). Exemptions are construed liberally in the
    debtor’s favor. See In re Caraglior, 
    251 B.R. 778
    , 782–83
    (Bankr. D. Conn. 2000).
    Under our statutes governing postjudgment collec-
    tion, a creditor may enforce a money judgment ‘‘against
    any property of the judgment debtor unless the property
    is exempt . . . .’’ General Statutes § 52-350f. It may do
    so via ‘‘foreclosure of a real property lien . . . .’’ Gen-
    eral Statutes § 52-350f. ‘‘ ‘Exempt’ ’’ means ‘‘unless oth-
    erwise specified, not subject to any form of process or
    court order for the purpose of debt collection . . . .’’
    General Statutes § 52-352a (c). Under the homestead
    exemption, a judgment debtor’s ‘‘homestead’’ is exempt
    ‘‘to the value of seventy-five thousand dollars . . . .’’
    General Statutes § 52-352b (t). A ‘‘ ‘[h]omestead’ ’’ is
    ‘‘owner-occupied real property . . . used as a primary
    residence.’’ General Statutes § 52-352a (e). ‘‘Value’’ is
    ‘‘determined as the fair market value of the real property
    less the amount of any statutory or consensual lien
    which encumbers it . . . .’’ General Statutes § 52-352b
    (t). ‘‘[T]hese statutory provisions . . . mean that a
    judgment lien can attach on a homestead, but that such
    a lien cannot be enforced up to the amount of the
    exemption.’’ KLC, Inc. v. Trayner, 
    426 F.3d 172
    , 175
    (2d Cir. 2005).
    Plainly, though, the homestead exemption does not
    apply to a consensual lien. See General Statutes § 52-
    352b (t) (‘‘fair market value of the real property less the
    amount of any . . . consensual lien which encumbers
    it’’). A mortgage is a consensual lien. E.g., In re Wolmer,
    
    494 B.R. 783
    , 784 (Bankr. D. Conn. 2013) (‘‘consensual
    liens [here, the mortgages]’’); L. Suzio Asphalt Co. v.
    Ferreira Construction Corp., Superior Court, judicial
    district of New Haven, Docket No. 351912 (October 19,
    1993) (
    10 Conn. L. Rptr. 264
    , 265) (‘‘consensual liens,
    such as . . . a mortgage’’); see also 4 Collier on Bank-
    ruptcy (R. Levin & H. Sommer eds., 16th Ed. 2019) ¶
    506.03 [1] [a], p. 506-11 (‘‘[c]ommon examples of volun-
    tary [or consensual] liens include real property mort-
    gage liens’’).
    In this case, Rockstone does not seek to foreclose on
    the nonconsensual judgment liens initially filed against
    the Sanzos. Rather, it seeks to foreclose on the consen-
    sual mortgage later voluntarily granted to it by the San-
    zos. Therefore, we agree with the Appellate Court that
    the homestead exemption does not apply.
    Although the Sanzos concede the general point that
    the homestead exemption does not apply to mortgages,
    they make two arguments as to why the particular mort-
    gage they granted to Rockstone should not be enforced.
    We find neither argument persuasive.
    First, the Sanzos argue that their mortgage—a mort-
    gage securing preexisting judgment debt—is not the
    type of mortgage contemplated by § 52-352b (t). This
    argument is not supported by a plain reading of the
    statute’s text. The statute does not define ‘‘consensual
    lien,’’ but could hardly refer to the concept more
    broadly: ‘‘any . . . consensual lien’’ is subtracted from
    the property’s value in calculating the homestead
    exemption. (Emphasis added.) General Statutes § 52-
    352b (t). We disagree with the Sanzos that § 52-350f,4
    which limits a judgment creditor’s collection efforts to
    nonexempt assets, is inconsistent with this reading of
    the homestead exemption. Nothing in § 52-350f prohib-
    its parties from restructuring a judgment debt into
    another form, such as a consensual lien, to which the
    exemption would not apply. In fact, the Sanzos appear
    to concede that they could have properly restructured
    their judgment debt if they had only done so through
    third-party financing, rather than directly through their
    creditor, Rockstone. Thus, we find no textual basis for
    holding that a mortgage securing judgment debt is
    excluded from the meaning of ‘‘consensual lien.’’5
    Second, the Sanzos argue that a debtor may not waive
    the homestead exemption and that, on the facts of this
    case, the mortgage agreement they entered into with
    Rockstone, their judgment creditor, should properly be
    viewed as a de facto waiver of the exemption. We are
    not persuaded by either point.
    ‘‘Waiver is the intentional relinquishment or abandon-
    ment of a known right or privilege.’’ (Internal quotation
    marks omitted.) Dinan v. Patten, 
    317 Conn. 185
    , 195,
    
    116 A.3d 275
    (2015). A statutory right generally may be
    waived. 
    Id. However, ‘‘a
    statutory right conferred on a
    private party, but affecting the public interest, may not
    be waived or released if such waiver or release contra-
    venes the statutory policy.’’ (Internal quotation marks
    omitted.) Pereira v. State Board of Education, 
    304 Conn. 1
    , 49–50, 
    37 A.3d 625
    (2012).
    Although there is considerable variation among the
    states as to the contours of and legal purposes underly-
    ing homestead exemptions; see, e.g., Chames v.
    DeMayo, 
    972 So. 2d 850
    , 856–57 (Fla. 2007); homestead
    exemptions are typically driven by interrelated policies
    that consider the welfare of both individual private citi-
    zens and the public at large. ‘‘The principal objective
    of the homestead laws is generally regarded as the
    security of the family, which in turn benefits the com-
    munity to the extent that such security prevents pauper-
    ism and provides the members of the family with some
    measure of stability and independence.’’ G. Haskins,
    ‘‘Homestead Exemptions,’’ 63 Harv. L. Rev. 1289, 1289
    (1950). More specifically, these laws seek to achieve
    security for debtors and their families by protecting
    their ability to remain in their homes, providing a finan-
    cial cushion for those who would otherwise be unable
    to support themselves, or both. See R. Rivera, ‘‘State
    Homestead Exemptions and Their Effect on Federal
    Bankruptcy Laws,’’ 39 Real Prop. Prob. & Tr. J. 71,
    101–102 (2004) (noting homestead exemptions that are
    intended ‘‘to protect debtors’ homes in bankruptcy
    because when debtors retain their homes, they are more
    likely to spend money in the local economy, which is
    in the state’s best interest,’’ and homestead exemptions
    that are intended to provide monetary relief ‘‘to prevent
    a debtor from becoming completely dependent on the
    state for financial support’’).
    In addressing whether an individual may waive a
    homestead exemption, a court usually considers the
    form of the waiver. Waivers via mortgage are routinely
    permitted.6 See 1 The Law of Debtors and Creditors
    (2019) § 6:70 (‘‘perhaps the most common form of
    waiver involves the homestead exemption, which may
    typically be waived by the debtor granting a creditor a
    mortgage’’); 40 C.J.S., Homesteads § 102 (2019) (‘‘[a]s
    a general rule, homestead rights may be waived by the
    parties entitled thereto by an act which evidences an
    unequivocal intention to do so’’ [footnote omitted]).
    Some courts permit a waiver via mortgage because
    granting a mortgage on specific property allows the
    mortgagor to consider the specific consequences of
    default. For example, the Sanzos repeatedly cite a
    Florida Supreme Court decision barring a prospective
    waiver of the homestead exemption in an executory
    contract. See Chames v. 
    DeMayo, supra
    , 
    972 So. 2d 857
    (citing constitutional provisions, statutes and case law
    prohibiting ‘‘a general waiver of homestead or personal
    property exemptions in an executory contract’’). But
    they omit from their discussion that court’s express
    acknowledgment that a waiver via mortgage is enforce-
    able: ‘‘[Our cases] do not prohibit a waiver of the home-
    stead exemption; they simply require that such waivers
    be accomplished . . . by mortgage, sale, or gift . . . .
    Those who truly wish to waive their homestead exemp-
    tion . . . can do so.’’ (Citations omitted.) 
    Id., 861–62. A
    waiver via mortgage is permitted because it ‘‘is made
    knowingly, intelligently, and voluntarily . . . with eyes
    wide open . . . .’’ (Citation omitted.) 
    Id., 861. ‘‘In
    obtaining a mortgage, a homeowner is well aware that if
    the payments are not made, the home may be foreclosed
    upon. . . . [T]he very nature of the transaction implies
    the exercise of discretion and the contemplation of
    inevitable consequences.’’ (Internal quotation marks
    omitted.) Id.; cf. Beneficial Finance Co. of Colorado v.
    Schmuhl, 
    713 P.2d 1294
    , 1297 (Colo. 1986) (‘‘Our holding
    [that a judgment debtor may waive an exemption by
    granting a security interest] is supported by the expecta-
    tions of the parties in secured transactions. A debtor
    who grants a security interest in specific property to
    a creditor expects foreclosure of that interest upon
    default.’’); Lingle State Bank of Lingle v. Podolak, 
    740 P.2d 392
    , 396 (Wyo. 1987) (‘‘[t]he debtor cannot waive
    the privilege of claiming the exemption in advance’’
    [emphasis added; internal quotation marks omitted]).
    Other courts permit a debtor to waive an exemption
    on the theory that prohibiting such a waiver would go
    too far in restricting an individual’s right to encumber
    property. For instance, the New York Court of Appeals
    has held that a debtor’s exemptions are not meant to
    serve the ‘‘paternalistic function’’ of prohibiting a debtor
    from disposing of exempt property, or ‘‘the less drastic
    step’’ of encumbering it in exchange for consideration.
    Matter of New York v. Avco Financial Service of New
    York, Inc., 
    50 N.Y.2d 383
    , 388, 
    406 N.E.2d 1075
    , 
    429 N.Y.S.2d 181
    (1980). It recognized that ‘‘the law has not
    forbidden a debtor to execute a mortgage upon the
    property so protected and thus create a lien which may
    be foreclosed despite the property’s exempt status
    . . . .’’ (Citations omitted.) Id.; see also, e.g., United
    Bank of Bismarck v. Selland, 
    425 N.W.2d 921
    , 925 (N.D.
    1988) (‘‘although the exemption statutes are designed
    to protect debtors from becoming destitute as a conse-
    quence of unforeseeable indebtedness, the statutes
    should not be construed to deprive an individual of his
    rights of ownership in exempt property . . . among
    which is the power to encumber, to sell, or otherwise
    dispose of it’’ [internal quotation marks omitted]); cf.
    Moyer v. International State Bank, 
    404 N.W.2d 274
    , 277
    (Minn. 1987) (‘‘[t]he statute does not forbid a debtor to
    mortgage protected property and to create a lien against
    identified property which can be foreclosed despite the
    property’s exempt status’’).
    Practical considerations support the reasoning in
    these cases. ‘‘[A] determination that a statutory exemp-
    tion cannot be waived by a security agreement would
    severely restrict the availability of [much needed] credit
    to debtors who, in many cases, have few assets to use
    as collateral.’’ Beneficial Finance Co. of Colorado v.
    
    Schmuhl, supra
    , 
    713 P.2d 1297
    ; see also Hernandez v.
    S.I.C. Finance Co., 
    79 N.M. 673
    , 675, 
    448 P.2d 474
    (1968)
    (‘‘[o]ften, such property is the poor man’s only source
    of cash in an emergency and, if the law permits him to
    sell his exempt property, surely it permits the less dras-
    tic step of encumbering it’’).
    This concept applies particularly to homestead
    exemptions because a homestead is often a debtor’s
    best potential source of credit. ‘‘A debtor’s equity in
    residential real property subject to a homestead exemp-
    tion is often substantial. Thus, permitting the debtor to
    encumber the homestead through execution of a second
    mortgage or similar instrument is economically justi-
    fied.’’ J. Haines, ‘‘Security Interests in Exempt Person-
    alty: Toward Safeguarding Basic Exempt Necessities,’’
    57 Notre Dame Law. 215, 220 n.35 (1981); see W. Vukow-
    ich, ‘‘Debtors’ Exemption Rights,’’ 62 Geo. L.J. 779, 852
    (1974) (‘‘[p]ermitting waivers of exemptions and secu-
    rity interests in the more substantial exempt assets . . .
    is sound, since it permits persons to use the more sub-
    stantial assets as collateral; in fact, these are the types
    of assets which represent the best collateral and which
    are most commonly used as such’’); see also Benchmark
    Bank v. Crowder, 
    919 S.W.2d 657
    , 661 (Tex. 1996)
    (‘‘[h]omestead owners must have the ability to renew,
    rearrange, and readjust the encumbering obligation to
    prevent a loss of the homestead through foreclosure’’).
    In some scenarios, therefore, waiver of the homestead
    exemption actually serves the public policies underly-
    ing it by allowing a debtor to remain in his home and
    providing him with a source of funds to support himself.
    In support of their argument that a debtor may not
    waive the homestead exemption, the Sanzos ignore the
    form of their waiver: a mortgage. Although the Sanzos’
    mortgage in this case involved an executory contract
    (the forbearance agreement), and therefore presents a
    scenario not addressed by the cases previously dis-
    cussed, we are persuaded that the same principles still
    apply. We are not convinced that a waiver of the home-
    stead exemption always contravenes the public policy
    behind it, such that it may never be waived.
    The Sanzos find little support for their argument in
    Connecticut law. They rely primarily on TuxisOhr’s
    Fuel, Inc. v. Trio Marketers, Inc., Superior Court, judi-
    cial district of New Haven, Docket No. CV-XX-XXXXXXX-
    S (October 26, 2005) (
    40 Conn. L. Rptr. 203
    ), and Hag-
    gerty v. Williams, 
    84 Conn. App. 675
    , 
    855 A.2d 264
    (2004), as examples of statutory rights that an individual
    may not waive in every circumstance. Tuxis-Ohr’s Fuel,
    Inc., concerned a provision in a personal guarantee
    contract that waived the homestead exemption. Tuxis-
    Ohr’s Fuel, Inc. v. Trio Marketers, 
    Inc., supra
    , 204.
    Haggerty involved a provision in a mortgage that
    waived the relevant statute of limitations. Haggerty v.
    
    Williams, supra
    , 676–77. In each case, the court was
    concerned that allowing a debtor to waive a statutory
    protection ‘‘at the inception’’ of an agreement; 
    id., 681; would
    mean a waiver was the result of ‘‘ignorance,
    improvidence, an unequal bargaining position or was
    simply unintended.’’ (Internal quotation marks omit-
    ted.) 
    Id., 682. These
    courts also feared that the public
    policy advanced by the granting of these statutory rights
    would erode by encouraging similar waivers ‘‘ ‘as a mat-
    ter of routine.’ ’’ 
    Id., 681; accord
    Tuxis-Ohr’s Fuel, Inc.
    v. Trio Marketers, 
    Inc., supra
    , 205.
    The present case does not involve a scenario, as in
    Tuxis-Ohr’s Fuel, Inc., and Haggerty, in which a debtor
    waived statutory protection ‘‘at the inception’ ’’ of an
    agreement; Haggerty v. 
    Williams, supra
    , 
    84 Conn. App. 681
    ; without a realistic chance to consider the conse-
    quences. When the Sanzos decided to grant a mortgage,
    they had already defaulted on the judgment debt and
    were actually (not just theoretically) facing foreclosure.
    They had the aid of counsel. They entered into a negoti-
    ated commercial agreement. They are not relying on a
    provision buried within the mortgage but, rather, on
    the mortgage itself. It was ‘‘obvious,’’ they concede, that
    the purpose of this mortgage was to contract around
    the homestead exemption.
    Nor, unlike Tuxis-Ohr’s Fuel, Inc., and Haggerty, is
    this a situation in which mortgages would be granted,
    and thus public policy would be undercut, merely ‘‘ ‘as
    a matter of routine.’ ’’ Haggerty v. 
    Williams, supra
    , 
    84 Conn. App. 681
    . Before entering into the agreement, the
    Sanzos could choose between invoking the homestead
    exemption in the face of the foreclosure action and
    granting a mortgage. For the reasons just stated, they
    appear to have made this choice deliberately. It is not
    self-evident that judgment debtors in similar situations
    would routinely make the same choice to mortgage
    their homes, particularly if they had few other exempt
    assets and a homestead exemption represented their
    best financial outcome. Moreover, as described pre-
    viously, restructuring judgment debt might often work
    in a debtor’s favor. Indeed, in 2009, the Sanzos received
    forbearance from foreclosure in exchange for the mort-
    gage. Until 2014, they apparently complied with the
    terms of the forbearance agreement and remained in
    their home because of it.
    Finally, the Sanzos and the amicus curiae, the Con-
    necticut Fair Housing Center, urge us to look beyond
    the form of the mortgage to its substance, which they
    argue was merely a de facto general waiver. They con-
    tend that the mortgage did not secure any debt beyond
    the original judgment liens. They also note that it was
    not a novation or release of the judgment liens. There-
    fore, they argue, the only real effect of the mortgage
    was to waive the homestead exemption in the same
    manner as one would through a general contractual
    waiver. We disagree for two reasons.
    First, Rockstone’s interest secured by the mortgage
    was not identical to the interest secured by the judg-
    ment liens. The mortgage secured the judgment lien
    debt, as well as additional fees and costs stemming
    from the forbearance. The mortgage also had the effect
    of subordinating Rockstone’s security interest, as two
    superior liens had been filed and recorded after Rock-
    stone’s judgment liens, but before the mortgage.
    Second, although the forbearance agreement could
    have more clearly distinguished between the old debt
    (secured by the judgment liens) and the new (secured
    by the mortgage) by, for instance, granting a novation,
    the Sanzos were well informed about the consequences
    of default, and the purpose of the mortgage was clear.7
    The judgment of the Appellate Court is affirmed inso-
    far as that court determined that Rockstone’s appeal
    was taken from a final judgment and that the mortgage
    was a consensual lien to which the homestead exemp-
    tion does not apply, and insofar as that court reversed
    the trial court’s judgment with respect to the denial of
    Rockstone’s claim to foreclose on the mortgage and
    remanded the case for further proceedings; that portion
    of the appeal concerning whether the Appellate Court
    correctly concluded that the Sanzos’ cross appeal was
    taken from a final judgment of the trial court is dis-
    missed.
    In this opinion the other justices concurred.
    1
    Connecticut’s homestead exemption is embodied in General Statutes
    § 52-352b, which provides in relevant part: ‘‘The following property of any
    natural person shall be exempt . . . (t) The homestead of the exemptioner
    to the value of seventy-five thousand dollars . . . provided value shall be
    determined as the fair market value of the real property less the amount
    of any statutory or consensual lien which encumbers it . . . .’’
    2
    The Housatonic Lumber Company also was named as a defendant but
    was defaulted for failure to plead and is not involved in this appeal.
    3
    In its original memorandum of decision, the trial court relied on an
    express waiver of the homestead exemption contained within the mortgage
    itself. It concluded that the express waiver was void as against public policy,
    but that it was severable from the rest of the mortgage. It therefore granted
    foreclosure of the mortgage, subject to the homestead exemption.
    Neither party had relied on the express waiver, however, because they
    agreed that it was unnecessary. In its motion to reargue, Rockstone stated
    that it ‘‘was not relying upon the express waiver language contained in the
    [m]ortgage since the [m]ortgage, being a consensual lien, is not within the
    purview of the homestead exemption statute and thus no waiver argument
    is necessary.’’ In their own motion to reargue, the Sanzos agreed that ‘‘the
    [c]ourt ruled in a manner not addressed by either party . . . .’’ Conceding
    that the express waiver in the mortgage was ‘‘actually an extraneous term,’’
    they reiterated their argument that ‘‘the [m]ortgage itself is a de facto waiver
    of the [h]omestead [e]xemption under the unique facts of this case.’’
    The parties do not rely on the express waiver on appeal. See Rockstone
    Capital, LLC v. Sanzo, 
    175 Conn. App. 770
    , 782, 
    171 A.3d 77
    (2017).
    4
    General Statutes § 52-350f provides: ‘‘A money judgment may be enforced
    against any property of the judgment debtor unless the property is exempt
    from application to the satisfaction of the judgment under section 52-352a,
    52-352b, 52-352d or 52-361a or any other provision of the general statutes
    or federal law. The money judgment may be enforced, by execution or by
    foreclosure of a real property lien, to the amount of the money judgment
    with (1) all statutory costs and fees as provided by the general statutes, (2)
    interest as provided by chapter 673 on the money judgment and on the costs
    incurred in obtaining the judgment, and (3) any attorney’s fees allowed
    pursuant to section 52-400c.’’
    5
    Legislative history is also, at best, unhelpful to the Sanzos, as debate
    did not distinguish between prejudgment and postjudgment mortgages. The
    homestead exemption for residential real property was enacted in No. 93-301,
    § 2, of the 1993 Public Acts. During debate in the House of Representatives,
    Representative Lee A. Samowitz did emphasize, however, that the homestead
    exemption was not intended to impair mortgages: ‘‘I want to clarify this.
    [The homestead exemption] does not affect mortgages. Mortgages are
    secured. They are not impaired. They won’t be impaired to bankruptcy, they
    won’t be impaired to foreclosure.’’ 36 H.R. Proc., Pt. 30, 1993 Sess., p.
    10,852; see also 
    id., p. 10,826
    (‘‘consensual liens are not impaired by this
    amendment’’); 
    id., p. 10,832
    (‘‘[t]his is intended not to impair the statutory
    and the [consensual] lien’’).
    6
    Several legislatures also have considered the form of the waiver. E.g.,
    Alaska Stat. § 09.38.105 (2006) (‘‘[a] waiver of exemption executed in favor
    of an unsecured creditor before levy on an individual’s property is unenforce-
    able, but a valid security interest may be given in exempt property’’); Tenn.
    Code Ann. § 26-2-301 (c) (2017) (‘‘[t]he homestead exemption shall not
    operate against . . . any debt secured by the homestead when the exemp-
    tion has been waived by written contract’’); W. Va. Code Ann. § 38-9-6 (a)
    (LexisNexis 2011) (‘‘[a]ny waiver of the rights conferred by this article shall
    be void and unenforceable except to the extent that [1] such waiver is
    accompanied by a consensual security interest in the property in which the
    homestead exemption is asserted’’).
    Connecticut’s homestead exemption statute is silent on whether, or under
    what circumstances, a homeowner may waive the exemption. See General
    Statutes § 52-352b (t); see also 36 H.R. Proc., Pt. 30, 1993 Sess., p. 10,853,
    remarks of Representative Lee A. Samowitz (‘‘[t]he proposed bill does not
    deal with the statutory right of waiver’’).
    7
    We do not consider the other arguments advanced by the amicus because
    they were not raised by the parties. See Dow & Condon, Inc. v. Brookfield
    Development Corp., 
    266 Conn. 572
    , 595, 
    833 A.2d 908
    (2003).