RCN Capital, LLC v. Sunford Properties & Development, LLC

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RCN CAPITAL, LLC v. SUNFORD PROPERTIES AND
DEVELOPMENT, LLC, ET AL.
(AC 42184)
Lavine, Alvord and Lavery, Js.
Syllabus
Pursuant to statute (§ 49-1), ‘‘[t]he foreclosure of a mortgage is a bar to any
further action upon the mortgage debt, note or obligation against the
person or persons who are liable for the payment thereof who are made
parties to the foreclosure . . . .’’
The plaintiff sought to foreclose, inter alia, a mortgage on certain real
property owned by the defendant S Co. and to collect on a personal
guarantee by the defendant L. S Co. had executed a promissory note
in the amount of $800,000 in favor of the plaintiff, which was secured
by a mortgage on the subject property, and L executed a guarantee
agreement in which he personally guaranteed all sums due under the
note, including attorney’s fees and costs. Following S Co.’s default on
the note, the plaintiff commenced this action by way of a three count
complaint, and the trial court rendered a judgment of strict foreclosure
as to the first two counts. Thereafter, the trial court granted the plaintiff’s
motion for a deficiency judgment against S Co., and the parties stipulated
that there was a deficiency of $449,441.88, including attorney’s fees and
costs. The plaintiff subsequently filed a motion for summary judgment
as to liability on count three of the complaint, which was directed against
L and sought to collect on his personal guarantee of the note. The
defendants filed an objection to the motion, contending that the plaintiff
was barred from recovering from L pursuant to § 49-1 and the statute
(§ 49-14) that provides a limited exception to § 49-1. The trial court
granted the motion for summary judgment, concluding, inter alia, that
§ 49-1 had no effect on the plaintiff’s ability to recover monetary damages
from L following the judgment of strict foreclosure. Thereafter, the trial
court granted the plaintiff’s motion for judgment as to count three of
the complaint and rendered judgment in favor of the plaintiff in the
amount of $531,938.98. On the defendants’ appeal to this court, held:
1. The defendants could not prevail on their claim that the trial count
improperly rendered judgment in favor of the plaintiff on count three
of its complaint, which was based on their contention that, pursuant to
§§ 49-1 and 49-14, the plaintiff was barred from recovering on L’s per-
sonal guarantee; in light of binding precedent, this court concluded that
the trial court properly enforced L’s personal guarantee, as the bar
pursuant to § 49-1 applies only to those individuals or entities who are
made or could have been made parties to the foreclosure, and, because
L was a guarantor, he was not a party to the foreclosure and could not
properly have been made a party to it, and, therefore, § 49-1 did not
have an effect on the plaintiff’s ability to recover money damages from
L under count three of the complaint.
2. Contrary to the defendants’ claim that the trial court improperly held
them jointly and severally liable for the judgment on L’s personal guaran-
tee, the reference to joint and several liability in the written order
prepared by the court clerk was a scrivener’s error, as the court’s judg-
ment pertained only to L’s personal guarantee under count three of
the complaint.
Argued October 15, 2019—officially released April 14, 2020
Procedural History
Action, inter alia, to foreclose a mortgage on certain
real property owned by the named defendant, and for
other relief, brought to the Superior Court in the judicial
district of New London, where the court, Cosgrove, J.,
rendered a judgment of strict foreclosure; thereafter,
the court, Nazzaro, J., opened and vacated the judg-
ment in part, and the plaintiff withdrew the action as
to the defendant Kwok L. Sang; subsequently, the court,
Nazzaro, J., granted the plaintiff’s motion for a defi-
ciency judgment and rendered judgment thereon; there-
after, the court, Nazzaro, J., granted the plaintiff’s
motion for summary judgment as to liability on count
three of the complaint; subsequently, the court, Hon.
Joseph Q. Koletsky, judge trial referee, denied the
motion for nonsuit filed by the named defendant et al.,
granted the plaintiff’s motion for judgment as to count
three of the complaint and rendered judgment for the
plaintiff, from which the defendants appealed to this
court. Appeal dismissed in part; affirmed.
Edward Bona, for the appellants (defendants).
Jon C. Leary, for the appellee (plaintiff).
Opinion
LAVERY, J. In this action to foreclosure two mort-
gages and to collect on a personal guarantee, the defen-
dants Sunford Properties & Development, LLC (Sun-
ford) and Janny Lam1 appeal from the judgment of the
trial court, rendered in favor of the plaintiff, RCN Capi-
tal, LLC. The defendants claim that the trial court
improperly (1) allowed the plaintiff to pursue a claim
for monetary damages against Lam that was more than
the amount to which the parties had stipulated to be
the amount of the deficiency and (2) rendered judgment
against all defendants, holding them jointly and sever-
ally liable on Lam’s guarantee.2 We affirm the judgment
of the trial court.
The following facts and procedural history are rele-
vant to this appeal. On June 28, 2012, Sunford executed
and delivered to the plaintiff a commercial promissory
note in the amount of $600,000, which was later modi-
fied to $800,000. In conjunction with this note, Sunford
also executed and delivered a commercial mortgage
deed and security agreement for 352 Main Street, Nor-
wich (Main Street property). At the same time, Kwok
L. Sang guaranteed repayment of the sums due on the
note executed by Sunford by way of a guarantee agree-
ment and mortgage deed for 86-92 Water Street, Nor-
wich (Water Street property). Meanwhile, Lam person-
ally guaranteed all sums due under the note, including
costs and attorney’s fees, by way of a guarantee
agreement.
On January 14, 2015, the plaintiff commenced this
action by writ of summons and complaint. In its second
revised complaint dated December 10, 2015, the plaintiff
sought, in count one, to foreclose on the Main Street
property; in count two, to foreclose on the Water Street
property, with a specific request for repayment of sums
due under the note guaranteed by the limited guarantee
agreement entered into by Sang; and, in count three,
to collect on any outstanding sums pursuant to Lam’s
personal guarantee. On May 16, 2016, the court rendered
a judgment of strict foreclosure as to both the Main
Street property and the Water Street property.3
On October 27, 2016, the plaintiff filed a motion for
a deficiency judgment against Sunford. The motion was
granted on March 8, 2017, and, on that same date, the
parties stipulated that there was a deficiency in the
amount of $449,441.88, which included appraisal and
attorney’s fees. On October 31, 2016, the plaintiff moved
for summary judgment as to count three of its com-
plaint, which was brought against Lam for the personal
guarantee of the promissory note. The defendants filed
an objection to the plaintiff’s motion for summary judg-
ment and a supporting memorandum of law, in which
Lam, in particular, contended that the plaintiff had
failed to obtain a proper deficiency judgment and, there-
fore, was barred from recovery pursuant to General
Statutes §§ 49-1 and 49-14.4 Lam further argued that
‘‘[a]lthough . . . [Lam] was named as a party [to the
foreclosure action] . . . [the plaintiff] appears to seek
the collection of excess amounts due under the note
postforeclosure. The record also reflects that it has
been more than [thirty] days since the plaintiff obtained
title to the properties . . . .’’
Shortly after their objection was filed on November
15, 2016, the defendants moved to dismiss count three
of the complaint. Asserting similar arguments to those
raised in the objection, the defendants argued that the
plaintiff’s claim had been rendered moot by operation
of §§ 49-1 and 49-14, and, therefore, the court lacked
subject matter jurisdiction. The court heard oral argu-
ment on the plaintiff’s motion for summary judgment
and the objection thereto on December 5, 2016.
On February 17, 2017, the court granted the plaintiff’s
motion for summary judgment as to the personal liabil-
ity of Lam under count three of the complaint.
Addressing the defendants’ arguments from their
motion to dismiss, the court explained that the plaintiff
is not barred from holding Lam personally liable
because § 49-1 does not apply to a guarantor of a debt.
Citing to JP Morgan Chase Bank, N.A. v. Winthrop
Properties, LLC, 312 Conn. 662, 677, 94 A.3d 622 (2014),
the court stated that, ‘‘due to the separate and distinct
liability of a guarantor . . . in the absence of a statute
expressly pertaining to guarantors, such secondary obli-
gors are not proper parties to a claim seeking the fore-
closure of a mortgage and their obligations are not
limited by the extinguishment of the mortgagor’s rights
and obligations.’’ (Internal quotation marks omitted.)
The court concluded that § 49-1 had no effect on the
plaintiff’s ability to recover monetary damages from
Lam following the judgment of strict foreclosure. Thus,
the court concluded that the defendants’ contention
that § 49-1 was a bar to the plaintiff’s claim was inappli-
cable and insufficient to rebut the plaintiff’s prima facie
case as to its entitlement to recover from Lam.
As a result of the court’s ruling on the plaintiff’s
motion, on September 6, 2018, the plaintiff filed a
motion for judgment as to the personal liability of Lam
under the third count of the complaint, seeking mone-
tary damages in the amount of $531,938.98. On Septem-
ber 21, 2018, the court granted the plaintiff’s motion
and rendered judgment in favor of the plaintiff in the
amount of $449,441.88 in damages and $82,497.10 in
prejudgment interest, for a total of $531,938.98. This
appeal followed. Additional facts and procedural his-
tory will be set forth as necessary.
On appeal, Lam claims that the trial court’s judgment
on count three of the complaint, as to Lam’s personal
liability, should be reversed because the plaintiff was
barred from recovery pursuant to §§ 49-1 and 49-14.
Specifically, Lam argues that the plaintiff is barred
because it (1) agreed to a stipulated deficiency judg-
ment prior to the court’s ruling on the motion for a
deficiency judgment and (2) failed to file a motion seek-
ing a deficiency judgment against Lam, personally,
within the statutorily mandated time frame. We disagree
and conclude that the trial court properly enforced
Lam’s personal guarantee.
The issues set forth on appeal require this court to
interpret and apply the statutory language of §§ 49-1
and 49-14. ‘‘The interpretation and application of a stat-
ute . . . involves a question of law over which our
review is plenary.’’ (Internal quotation marks omitted.)
Griswold v. Camputaro, 177 Conn. App. 779, 791, 173
A.3d 959 (2017), aff’d, 331 Conn. 701, 207 A.3d 512
(2019).
Before we address the merits of Lam’s claim, we set
forth certain fundamental principles concerning real
property in regard to foreclosure actions. ‘‘The purpose
of [a] foreclosure is to extinguish the mortgagor’s equi-
table right of redemption that he retained when he
granted legal title to his property to the mortgagee fol-
lowing the execution of the mortgage.’’ JP Morgan
Chase Bank, N.A. v. Winthrop Properties, LLC, supra,
312 Conn. 673. It is well established that, when a mort-
gagor defaults on an underlying note, ‘‘the plaintiff is
entitled to pursue its remedy at law on the [note], or
to pursue its remedy in equity upon the mortgage, or
to pursue both.’’ Hartford National Bank & Trust Co.
v. Kotkin, 185 Conn. 579, 581, 441 A.2d 593 (1981). When
a plaintiff pursues a remedy for foreclosure, ‘‘Connecti-
cut follows the title theory of mortgages, which pro-
vides that on the execution of a mortgage on real prop-
erty, the mortgagee holds legal title and the mortgagor
holds equitable title to the property. . . . As the holder
of equitable title, also called the equity of redemption,
the mortgagor has the right to redeem the legal title on
the performance of certain conditions contained within
the mortgage instrument.’’ (Internal quotation marks
omitted.) Ocwen Federal Bank, FSB v. Charles, 95
Conn. App. 315, 322–23, 898 A.2d 197, cert. denied, 279
Conn. 909, 902 A.2d 1069 (2006).
One such remedy at law for a default on the mortgage
is the enforcement of the underlying note. See New
Milford Savings Bank v. Jajer, 244 Conn. 251, 265–66
n.23, 708 A.2d 1378 (1998). ‘‘A promissory note is simply
a written contract for the payment of money.’’ (Internal
quotation marks omitted.) Ankerman v. Mancuso, 271
Conn. 772, 777, 860 A.2d 244 (2004). Therefore, any
deficiency judgment sought by a plaintiff in conjunction
with a foreclosure is a result of the contractual obliga-
tion between the parties to the promissory note. See
Eichman v. J & J Building Co., 216 Conn. 443, 453, 582
A.2d 182 (1990) (‘‘deficiency judgment hearings more
closely resemble suits for collection’’)
In addition to remedies against a mortgagor, when
the payment of a promissory note is safeguarded by a
separate guarantee, the mortgagee may initiate a claim
against the guarantors to recover the remaining debt
of the mortgagor. See Bank of Boston Connecticut v.
Schlesinger, 220 Conn. 152, 157–58, 595 A.2d 872 (1991).
‘‘[A] guarantee is a promise to answer for the debt,
default or miscarriage of another.’’ Regency Savings
Bank v. Westmark Partners, 59 Conn. App. 160, 164,
756 A.2d 299 (2000). This obligation is ‘‘separate from
the contractual agreement between the lender and bor-
rower, a guarantee imports the existence of two differ-
ent obligations: the obligation of the borrower and the
obligation of the guarantor.’’ JP Morgan Chase Bank,
N.A. v. Winthrop Properties, LLC, supra, 312 Conn.
675. ‘‘[Guarantees] are . . . distinct and essentially dif-
ferent contracts; they are between different parties,
they may be executed at different times and by separate
instruments, and the nature of the promises and the
liability of the promisors differ substantially . . . . The
contract of the guarantor is his own separate undertak-
ing in which the principal does not join.’’ (Citations
omitted; internal quotation marks omitted.) Carpenter
v. Thompson, 66 Conn. 457, 463–64, 34 A. 105 (1895).
As a result of this separate obligation, ‘‘[a] mortgagee
cannot enforce a mortgage obligation in a foreclosure
proceeding against a guarantor because a guarantor is
not a party to such obligation.’’ JP Morgan Chase Bank,
N.A. v. Winthrop Properties, LLC, supra, 682.
Next, in addressing the merits of the present case,
we rely on JP Morgan Chase Bank, N.A. v. Winthrop
Properties, LLC, supra, 312 Conn. 665, in which our
Supreme Court addressed the issue of ‘‘whether . . .
§ 49-1, under which the foreclosure of a mortgage is
a bar to further action against persons liable for the
payment of the mortgage debt, note or obligation who
are, or may be, made parties to the foreclosure, applies
to guarantors of the mortgage note.’’ (Footnote omit-
ted.) In that case, the defendant borrowed $1,012,500
from Washington Mutual Bank. Id., 666. The defendant
then executed a promissory note and a mortgage on
real property in New Haven. Id. The guarantors of the
loan executed a personal guarantee in which they
assumed joint and several liability for the repayment
of the loan. Id. After the defendant defaulted on the
note, JP Morgan Chase Bank, N.A., as a successor in
interest to Washington Mutual Bank, sought to fore-
close the mortgage and to enforce the personal guaran-
tee. Id. The court granted the plaintiff’s motion for sum-
mary judgment as to the liability of the defendant and
the guarantors and, thereafter, rendered a judgment of
strict foreclosure. Id., 667. The plaintiff then filed a
motion for a deficiency judgment, to which the guaran-
tors filed an objection, arguing that, ‘‘because the plain-
tiff had not filed a motion for a deficiency judgment
within thirty days of the running of the law days as
required by § 49-14, the plaintiff was barred by § 49-1
from taking any further action to collect money dam-
ages from the guarantors.’’ Id.
Presented with the question of ‘‘whether § 49-1 evi-
dences a clear intent to extinguish the otherwise inde-
pendent obligations of the guarantors by making them
effectively necessary parties to a claim that seeks the
strict foreclosure of a mortgage’’; id., 678; the court
interpreted the term ‘‘obligation’’ in § 49-1, when read
in context with the entire statute, to exclude a guaran-
tee. Id., 672. The court interpreted ‘‘obligation’’ nar-
rowly, explaining that ‘‘if the term ‘mortgage’ modifies
not only the term ‘debt,’ but also the terms ‘note’ and
‘obligation,’ the latter could refer to obligations that are
secured by a mortgage but not secondary obligations
that provide further security, such as a guarantee that
obligates payment of a promissory note secured by a
mortgage.’’ (Emphasis in original.) Id., 671. As such, the
court concluded that ‘‘guarantors are not obligated on
a mortgage because they have a separate and distinct
contractual obligation from the promissory note and
mortgage under their guarantee. . . . [T]hey are not
‘parties to the foreclosure,’ irrespective of whether the
mortgagee pursues a claim against the guarantors in
the same cause of action in which it pursues foreclosure
of the mortgage.’’ Id., 673. Moreover, the court con-
cluded that guarantors are not subject to the preclusion
pursuant to § 49-1 because ‘‘[d]ue to the separate and
distinct liability . . . in the absence of a statute
expressly pertaining to guarantors, such secondary obli-
gors are not proper parties to a claim seeking the fore-
closure of a mortgage and their obligations are not
limited by the extinguishment of the mortgagor’s rights
and obligations.’’ Id., 677. Thus, the trial court’s render-
ing of strict foreclosure in JP Morgan Chase Bank,
N.A., ‘‘had no effect on the plaintiff’s ability to recover
damages for the remaining unpaid debt from the guaran-
tors . . . because the guarantors were not parties to
the plaintiff’s foreclosure claim . . . the guarantors’
obligation having arisen separately under their guaran-
tee.’’ Id., 686.
The present case is controlled by JP Morgan Chase
Bank, N.A. Here, this court is presented not only with
an analogous factual scenario, in that both cases con-
cern the enforcement of a personal guarantee on a
promissory note, but is also presented with the same
issue that was resolved in that case. Specifically, Lam
contends that the plaintiff was barred, pursuant to
§§ 49-1 and 49-14, from recovering on the personal guar-
antee because the stipulated judgment applied to all
matters, including count three of the plaintiff’s com-
plaint. Lam asserts that the stipulated judgment was
‘‘accepted and openly submitted to fully resolve [all]
matters between the parties after the passage of the
title of the properties.’’ Lam further contends that the
trial court went above and beyond the stipulated judg-
ment in holding Lam liable for more than the stipulated
amount, thus violating existing law and public policy.
Lastly, Lam asserts that the plaintiff failed to file a
motion seeking a deficiency judgment specifically
against Lam personally, within the statutorily mandated
time frame.
Lam, however, fails to take into account the binding
authority set forth in JP Morgan Chase Bank, N.A.
Applying our Supreme Court’s holding to the present
case, it is clear that Lam’s contentions are incorrect.
In particular, Lam, as additional collateral for the obliga-
tions due under the promissory note, executed and
delivered to the plaintiff a personal guarantee. The guar-
antee explicitly named Lam as a ‘‘guarantor’’ and
assured the ‘‘prompt payment and performance of a
Certain Non-revolving Note made by [Sunford].’’ The
guarantee was signed by Lam on June 28, 2012.
Because Lam was named a ‘‘guarantor’’ and assured
the prompt payment of the note, Lam had a separate
and distinct obligation from that evidenced by the note.
Our Supreme Court has stated: ‘‘A mortgagee cannot
enforce a mortgage obligation in a foreclosure proceed-
ing against a guarantor because a guarantor is not a
party to such an obligation. . . . The guarantors have
no legal interest in the property securing the note and
have no equitable or statutory right of redemption in the
property. Accordingly, the plaintiff could not properly
make the guarantors parties to the foreclosure claim
because it could not seek to extinguish the guarantors’
right of redemption, which is the purpose of foreclo-
sure, nor in the alternative seek to enforce the note
against them. The plaintiff only could seek that relief
from the defendant, who had pledged its property as
security for the contract between it and the plaintiff.
Although the guarantors have a general interest in the
foreclosure due to their separate and distinct obligation
under the guarantee to pay any remaining amount due
on the underlying debt, that interest does not render
them parties to the foreclosure.’’ (Footnotes omitted.)
JP Morgan Chase Bank, N.A. v. Winthrop Properties,
LLC, supra, 312 Conn. 682–83. Therefore, the bar pursu-
ant to § 49-1 applies solely to those individuals or enti-
ties who are made or could have been made ‘‘parties
to the foreclosure.’’ Because Lam was a guarantor, Lam
was not a party to the foreclosure and could not prop-
erly have been made a party to it. Accordingly, the trial
court properly held Lam personally liable because § 49-
1 did not have an effect on the plaintiff’s ability to
recover money damages from Lam under count three
of the complaint.5
We briefly address the defendants’ claim that the
court improperly held them jointly and severally liable
for the judgment on Lam’s personal guarantee. This
claim is directly related to a statement set forth in the
court’s September 21, 2018 order, stating that ‘‘judgment
enters in favor of the plaintiff against the defendants
jointly and severally in the amount of $449,441.88 in
damages [and] $82,497.10 in prejudgment interest for
a total judgment of $531,938.98.’’ This order was pre-
pared by the court clerk and was not signed by the
judge. We conclude that the reference to joint and sev-
eral liability was a scrivener’s error. See generally Dan
v. Dan, 315 Conn. 1, 7 n.7, 105 A.3d 118 (2014) (misstate-
ment in court order prepared by court clerk contained
scrivener’s error).6
It is clear from the record that the plaintiff had filed
a motion for judgment on count three of the complaint,
which was specifically brought against Lam only, and
that it had filed an affidavit of debt, addressing the
claim for damages under Lam’s guarantee.7 A review of
the transcript of the hearing in damages reveals that
the only matter argued before the trial court at that
time was Lam’s personal guarantee.8 Although the writ-
ten order incorrectly referenced ‘‘joint and several lia-
bility,’’ we conclude that this reference was a scrivener’s
error, as the judgment pertained to only Lam’s personal
guarantee under count three of the complaint. Addition-
ally, the record reveals that the plaintiff, shortly after
the court clerk issued this order, sent a certified notice
of judgment to counsel for both Lam and Sunford, which
provided in relevant part: ‘‘The plaintiff in the above-
entitled action hereby gives notice that on September
21, 2018, the court entered a judgment in its favor in
the amount of $531,938.98 under count three of the
second revised complaint . . . against . . . Lam.’’
The appeal is dismissed with respect to Kwok L. Sang;
the judgment is affirmed.
In this opinion the other judges concurred.
1
Kwok L. Sang also appealed from the judgment of the trial court; however,
the plaintiff withdrew the second count of the complaint, which was directed
against Sang. Due to this withdrawal, Sang is not a party to the underlying
action and, therefore, lacks standing to appeal. See M.U.N. Capital, LLC v.
National Hall Properties, LLC, 163 Conn. App. 372, 376, 136 A.3d 665 (defen-
dant corporation lacked standing to appeal because plaintiff withdrew action
against it such that it was not party to underlying action), cert. denied, 321
Conn. 902, 136 A.3d 1272 (2016). The parties were notified prior to oral
argument before this court to be prepared to address Sang’s jurisdictional
issue. See, e.g., State v. Connor, 321 Conn. 350, 371, 138 A.3d 265 (2016)
(‘‘if the Appellate Court decides to address an issue not previously raised
or briefed, it may do so only after requesting supplemental briefs from the
parties or allowing argument regarding that issue’’ (internal quotation marks
omitted)). Accordingly, the appeal as to Sang is dismissed. We therefore
refer in this opinion to Sunford and Lam collectively as the defendants and
individually by name where appropriate.
2
The defendants also contend that the trial court (1) improperly rendered
judgment while their motion to dismiss the third count of the operative
complaint was pending, (2) abused its discretion by not taking judicial notice
of the judgment in RCN Capital, LLC v. Chicago Title Ins. Co., Superior
Court, judicial district of Hartford, Docket No. CV-XX-XXXXXXX-S (August 27,
2018); see RCN Capital, LLC v. Chicago Title Ins. Co., Docket No. 42082
(Conn. App.) (pending appeal filed September 11, 2018); and (3) abused its
discretion by denying the defendants’ motion for nonsuit.
After thoroughly examining the record in the present case and fully consid-
ering the parties’ briefs and oral arguments, we conclude that the aforemen-
tioned claims are without merit. In regard to the defendants’ first claim, we
are aware that when a motion to dismiss challenges the court’s subject matter
jurisdiction, it must be addressed when brought to the court’s attention.
See Practice Book § 10-33. Although the court did not directly rule on the
motion to dismiss, it adequately addressed and rejected the arguments from
the motion in its February 17, 2017 memorandum of decision, granting the
plaintiff’s motion for judgment.
3
The court found that the defendants owed $1,040,845.02. The fair market
value of both properties was valued at a total of $977,000.
On November 14, 2016, the court opened and vacated the judgment of
strict foreclosure as to count two concerning Sang and the Water Street
property, and the claim against Sang was withdrawn. The judgment was
vacated due to a foreclosure by sale by the city of Norwich. See Norwich
v. Sang, Superior Court, judicial district of New London, Docket No. KNL-
CV-XX-XXXXXXX-S (May 12, 2016). Accordingly, once the judgment as to Sang
was vacated, and the claim against him was withdrawn, he no longer was
a party to the current action. See footnote 1 of this opinion.
4
General Statutes § 49-1 provides in relevant part: ‘‘The foreclosure of a
mortgage is a bar to any further action upon the mortgage debt, note or
obligation against the person or persons who are liable for the payment
thereof who are made parties to the foreclosure and also against any person
or persons upon whom service of process to constitute an action in personam
could have been made within this state at the commencement of the foreclo-
sure; but the foreclosure is not a bar to any further action upon the mortgage
debt, note or obligation as to any person liable for the payment thereof
upon whom service of process to constitute an action in personam could
not have been made within this state at the commencement of the foreclo-
sure. . . .’’
‘‘Section 49-14 (a) furnishes a limited exception to [§ 49-1] for strict fore-
closures, providing that ‘[a]t any time within thirty days after the time limited
for redemption has expired, any party to a mortgage foreclosure may file a
motion seeking a deficiency judgment.’ Therefore, once a mortgagee strictly
forecloses on a mortgage and obtains title to the property following the
running of the law days, § 49-1 extinguishes all rights of the mortgagee with
respect to the ‘mortgage debt, note or obligation’ against persons who are
or could have been made parties to the foreclosure, except as provided in
§ 49-14.’’ (Footnotes omitted.) JP Morgan Chase Bank, N.A. v. Winthrop
Properties, LLC, 312 Conn. 662, 670–71, 94 A.3d 622 (2014).
5
Additionally, even though the defendants claim that the plaintiff failed
to meet the statutory time frame for seeking a deficiency judgment pursuant
to § 49-14 (a), the effect of that statute was not implicated because the
plaintiff’s rights were not extinguished under § 49-1.
6
In Dan v. Dan, supra, 315 Conn. 7 n.7, the defendant requested an
articulation from the trial court specifically related to the misstatement
contained in its order, and the trial court stated that it was a scrivener’s
error. In the present case, although the defendants filed a motion for articula-
tion, they did not request the court to articulate this order. Because the
record is clear, we conclude that the order contains a scrivener’s error.
7
Specifically, in its motion for judgment, the plaintiff stated: ‘‘The plaintiff
. . . herein moves that a judgment enter against . . . Lam under count
three of the . . . complaint. A judgment as to liability only entered
against [Lam].’’
8
At the hearing in damages, the plaintiff’s counsel stated in relevant part:
‘‘Your Honor, this [hearing] follows a summary judgment as to liability on
count three of the complaint. [Count three] pertains to a personal guarantee
of . . . Lam. We submitted the affidavit of [the plaintiff] that lists the
updated debt following the foreclosure and the deficiency judgment [in]
count one. So, we’re seeking judgment [of the] amount that [is] listed in
the affidavit of debt.’’