National City Real Estate Services, LLC v. Tuttle ( 2015 )

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NATIONAL CITY REAL ESTATE SERVICES, LLC v.
JULIAN D. TUTTLE ET AL.
(AC 36324)
Beach, Prescott and Bishop, Js.
Argued December 3, 2014—officially released February 3, 2015
(Appeal from Superior Court, judicial district of
Fairfield, Tyma, J. [foreclosure judgment]; Hon. Richard
P. Gilardi, judge trial referee [motion for approval of
sale].)
Thomas E. Minogue, for the appellants (named
defendant et al.).
John J. Ribas, with whom, on the brief, was Jeffrey
M. Knickerbocker, for the appellee (substitute plaintiff).
Donald F. Salomone, self-represented, the appellee
(successful bidder).
Opinion
PER CURIAM. At issue in this appeal is whether,
following a judgment of foreclosure by sale rendered
in favor of the substitute plaintiff, PNC Bank, N.A.,1
with respect to property owned by the defendants Julian
Tuttle and Janice Tuttle,2 the trial court abused its dis-
cretion by approving a sale of the property in an amount
substantially lower than its fair market value. Having
carefully considered the facts and circumstances sur-
rounding the court’s approval of the sale, we conclude
that the court did not abuse its discretion and, accord-
ingly, affirm the judgment of the trial court.
The record reveals the following relevant facts and
procedural history. The defendants defaulted on a note
that they had executed in October, 2001, in the principal
amount of $108,660. The note was secured by a mort-
gage on real property owned by the defendants at 233-
235 Monroe Turnpike in Monroe.
The present foreclosure action was commenced in
December, 2009. On March 12, 2012, the court granted
the plaintiff’s motion for summary judgment as to liabil-
ity and, on January 22, 2013, rendered judgment of fore-
closure by sale. At that time, the court found that the
fair market value of the subject property was $490,000,
and that the debt owed to the plaintiff was $135,245.72.
The court set a sale date of May 25, 2013, and appointed
Attorney Kathleen M. Dunn to act as the committee
overseeing the foreclosure sale. The defendants did not
appeal from the judgment of foreclosure.
The foreclosure sale was conducted on May 25, 2013,
at the property. It was raining heavily at the time of
the sale. The defendants, who continued to occupy the
premises, did not provided access to allow the sale to
be conducted inside or for inspection of the interior
by potential bidders.3 Of the three bidders who had
preregistered with the committee, only two appeared
at the sale. The opening bid was $157,639.63. A total of
forty-two bids were made. Donald F. Salomone placed
the winning bid of $210,500, which was accepted by
the committee.
On May 30, 2013, the committee filed a motion for
acceptance of the committee report and for approval
of the sale. The defendants filed an objection to the
committee’s motion on June 12, 2013. They argued that
the closing bid was unfair and inadequate because it
was $289,500 (42.9 percent) less than the fair market
value of the property as determined by the court at the
time of the foreclosure judgment, and because the low
sale price unfairly deprived the defendants of substan-
tial equity that they needed to satisfy subsequent
encumbrancers and other creditors. They also argued
that the low sale price provided an unwarranted wind-
fall to Salomone. Subsequent encumbrancer JPMorgan
Chase Bank, N.A. (JPMorgan); see footnote 2 of the
opinion; also filed an objection, noting that the final
bid was less than 43 percent of the fair market value
as determined by the court, and arguing that approval
of the sale would be inequitable.
The plaintiff filed a memorandum of law in support
of the committee’s motion seeking approval of the sale.
The plaintiff argued that this court has recognized only
limited grounds upon which a trial court properly could
refuse to approve a sale; see First National Bank of
Chicago v. Maynard, 75 Conn. App. 355, 361, 815 A.2d
1244 (‘‘generally recognized that the grounds [that]
would warrant a court’s refusal to approve a [foreclo-
sure] sale are fraud, misrepresentation, surprise or mis-
take’’ [internal quotation marks omitted]), cert. denied,
263 Conn. 914, 821 A.2d 768 (2003); none of which
were applicable to the present sale. The plaintiff further
argued that in LaSalle Bank, N.A. v. Randall, 125 Conn.
App. 31, 6 A.3d 175 (2010), this court upheld the
approval of a foreclosure sale at which the winning bid
was less than 40 percent of the fair market value as
determined by the court at the time of the foreclo-
sure judgment.
The successful bidder, Salomone, also filed a memo-
randum of law in support of approval of the sale. In
addition to the arguments made by the plaintiff, Salo-
mone noted that the most recent court-appointed
appraisal of the property, conducted on May 18, 2013,
in accordance with General Statutes § 49-25, listed the
fair market value of the property at $360,000, substan-
tially less than the $490,000 appraisal.
The court, Hon. Richard P. Gilardi, judge trial ref-
eree, heard oral argument on the committee’s motion
on July 15, 2013.4 After listening to the defendants’ argu-
ments that the sale price was too low, and thus inequita-
ble, the court asked the defendants’ counsel, ‘‘what’s
to say if there’s another sale that they’re going to get
[a higher bid]?’’ In response, counsel stated that ‘‘that’s
the chance that everybody’s going to take,’’ and then
he returned to his argument that the final bid was well
below fair market value. When the defendants’ counsel
was asked by the court to distinguish the present case
from LaSalle Bank, N.A., which was cited by the plain-
tiff, he erroneously suggested that the disparity between
the sale price and the fair market value in the present
case was greater than the disparity in that case. The
plaintiff’s counsel later corrected the defendants’ coun-
sel, however, explaining that in LaSalle Bank, N.A., the
court had approved a sale that had generated less than
40 percent of the foreclosed property’s fair market
value, which actually was a lower percentage than the
42.9 percent difference in the present case. The plain-
tiff’s counsel also argued that the defendants had not
challenged the manner in which the sale was conducted,
that any further delay to hold another sale would only
prejudice the plaintiff further, and that there was no
evidence that another sale would yield a better outcome
for the defendants.
The court granted the committee’s motion for
approval of the sale without explanation on November
15, 2013. This appeal followed. On January 3, 2014, the
defendants filed a motion for articulation asking the
trial court to state the factual and legal bases for its
decision approving the sale. The court issued an articu-
lation on February 7, 2014. Ultimately, the court con-
cluded as follows: ‘‘In the present case, the court
balanced the equities and determined equity favored
approval of the sale. . . . As was indicated, the defen-
dants have submitted no factual or legal claims that
the procedure of the foreclosure committee and the
equitable process of the court was flawed. In summary,
the [defendants] did not offer any substantive argument
to preclude this court’s approval of the committee rec-
ommendation.’’ (Citation omitted.) The defendants did
not seek review of the court’s articulation or ask for
further clarification of the court’s ruling. See Practice
Book §§ 66-5 and 66-7.
The defendants claim on appeal that the court abused
its discretion by approving the foreclosure sale. On the
basis of the record before us, we disagree.
‘‘[T]he applicable standard of review applied to a
court’s approval of a committee sale is the abuse of
discretion standard. . . . [A]n action of foreclosure is
peculiarly equitable and . . . the court exercises dis-
cretion in ensuring that justice [is] done. . . . In
approving the committee sale, [t]he court must exercise
its discretion and equitable powers with fairness not
only to the foreclosing mortgagee, but also to . . . the
owners [of the foreclosed property]. . . . Most import-
antly, the court possesses the authority to refuse to
confirm sales upon equitable grounds where [the sales
are] found to be unfair or the price bid was inadequate.’’
(Citation omitted; internal quotation marks omitted.)
Rockville Bank v. Victory Outreach Ministries, Inc.,
125 Conn. App. 1, 9–10, 6 A.3d 177 (2010).
It is not unusual for a foreclosure sale to yield consid-
erably less than the property’s appraised fair market
value. See Fidelity Trust Co. v. Irick, 206 Conn. 484,
490, 538 A.2d 1027 (1988). ‘‘[A] foreclosure by sale may
result in bids not only less than the appraised value of
the property, but even less than the foreclosing mort-
gagee’s loan, allowable expenses and taxes. Because the
trial court has control of the foreclosure proceedings, it
can, in the exercise of its discretion, accept or reject
a proposed sale.’’ Id. Further, as recognized by our
Supreme Court, ‘‘[t]he usual notion of fair market value
is inconsistent with the notion of a foreclosure sale.
[F]air market value is generally said to be the value that
would be fixed in fair negotiations between a desirous
buyer and a willing seller, neither under any undue
compulsion to make a deal. . . . An auction sale, such
as a foreclosure sale, is not designed to reach that result
because there is no opportunity for negotiations, and
the seller, namely, the committee appointed by the trial
court to conduct the sale, is under compulsion to make
a deal, in the sense that it is required to take the highest
bid, subject only to the approval of the court.’’ (Citations
omitted; emphasis in original; internal quotation marks
omitted.) New England Savings Bank v. Lopez, 227
Conn. 270, 280, 630 A.2d 1010 (1993). No appellate case
has established whether there is a certain percentage
of fair market value below which a sale would trigger
a trial court’s obligation to reject a foreclosure sale on
the ground that the price was inadequate or unfair as
a matter of law. Nevertheless, this court has affirmed
a court’s approval of a foreclosure sale yielding as little
as 40 percent of the property’s fair market value. See
LaSalle Bank, N.A. v. Randall, supra, 125 Conn. App. 31.
Turning to the present matter, although it is undis-
puted that the price obtained at the foreclosure sale
was substantially less than the fair market value deter-
mined by the court at the time of the foreclosure judg-
ment, the defendants presented no claim to the court
that the low sale price was the result of any irregularities
in the sale process or in ‘‘the equitable process of the
court.’’ The defendants’ claim, rather, was solely that
the sale price was inadequate per se. At the hearing
on the motion for approval of the sale, however, the
defendants did not produce a witness or proffer any
other evidence from which the court could have found
that the sale price was fundamentally unfair under the
circumstances presented or that a new sale likely would
have yielded a better outcome. When the court directly
asked the defendants’ counsel whether the defendants
had any indication that they would get better offers at
a new sale, counsel answered only that there was a
chance. Such speculation alone cannot provide a legal
basis on which to deny approval of a foreclosure sale
that was conducted without any irregularities.
Moreover, there were also a number of factors before
the court that support the court’s approval of the sale.
First, the foreclosure action had been pending for a
number of years, and further delay would have preju-
diced the plaintiff. Also, the court-ordered appraisal of
the property that was conducted only a few weeks prior
to the sale found that the fair market value was $360,000,
cutting nearly in half the difference between the sale
price and the fair market value as determined at the
time of the foreclosure judgment. Finally, it could fairly
be argued that the defendants’ own actions may have
contributed to a lower sale price. The defendants denied
the committee and the bidders access to the interior
of the property, so that the auction had to be conducted
in the rain, and the potential bidders, who would be
required to take the property ‘‘as is,’’ were unable to
conduct an interior inspection.
The court indicated in its articulation of its decision
to approve the sale that it had ‘‘balanced the equities
and determined equity favored approval of the sale.’’
The court did not further discuss what factors it had
considered or the weight it attached to any particular
factor in balancing the equities in the present case, nor
was it asked to do so by the parties in a motion for
further articulation. ‘‘The general rule that a judgment,
rendered by a court with jurisdiction, is presumed to
be valid and not clearly erroneous until so demonstrated
raises a presumption that the rendering court acted
only after due consideration, in conformity with the law
and in accordance with its duty. . . . It is important to
recognize that a claim of error cannot be predicated
on an assumption that the trial court acted incorrectly.
. . . Rather, we are entitled to assume, unless it
appears to the contrary, that the trial court . . . acted
properly, including considering the applicable legal
principles.’’ (Citations omitted; internal quotation
marks omitted.’’ Johnson v. de Toledo, 61 Conn. App.
156, 161–62, 763 A.2d 28 (2000), appeal dismissed, 258
Conn. 732, 785 A.2d 192 (2001). On the basis of our
review of the record provided, we presume that the
court properly balanced the equities and determined
that equity favored approving the sale. The defendants
have, therefore, failed to persuade us that the court
abused its discretion in making that determination.
The judgment is affirmed.
1
The court granted a motion to substitute PNC Bank, N.A., for the original
plaintiff, National City Real Estate Services, LLC. We therefore refer in this
opinion to PNC Bank, N.A., as the plaintiff.
2
The complaint named JPMorgan Chase Bank, N.A. (JPMorgan), as an
additional defendant by virtue of a second mortgage that it held on the
subject property that was subsequent in right to the plaintiff’s mortgage.
Because JPMorgan has not participated in this appeal, we refer to the Tuttles
collectively as the defendants in this opinion.
3
Although not expressly found by the court, these facts are contained in
the committee’s report, which was accepted by the court and not challenged
on appeal.
4
Counsel for JPMorgan did not appear at the hearing.